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Justice Rehnquist

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Haddle v. Garrison

1998-12-14

https://www.courtlistener.com/opinion/118251/haddle-v-garrison/

https://www.courtlistener.com/api/rest/v3/clusters/118251/

1998-007

Petitioner Michael A. Haddle, an at-will employee, alleges that respondents conspired to have him fired from his job in retaliation for obeying a federal grand jury subpoena and to deter him from testifying at a federal criminal trial. We hold that such interference with at-will employment may give rise to a claim for damages under the Civil Rights Act of 1871, Rev. Stat. § 1980, 42 U.S. C. § 1985(2). According to petitioner's complaint, a federal grand jury indictment in March 1995 charged petitioner's employer, *123 Healthmaster, Inc., and respondents Jeanette Garrison and Dennis Kelly, officers of Healthmaster, with Medicare fraud. Petitioner cooperated with the federal agents in the investigation that preceded the indictment. He also appeared to testify before the grand jury pursuant to a subpoena, but did not testify due to the press of time. Petitioner was also expected to appear as a witness in the criminal trial resulting from the indictment. Although Garrison and Kelly were barred by the Bankruptcy Court from participating in the affairs of Healthmaster, they conspired with G. Peter Molloy, Jr., one of the remaining officers of Healthmaster, to bring about petitioner's termination. They did this both to intimidate petitioner and to retaliate against him for his attendance at the federal-court proceedings. Petitioner sued for damages in the United States District Court for the Southern District of Georgia, asserting a federal claim under 42 U.S. C. § 1985(2) and various statelaw claims. Petitioner stated two grounds for relief under § 1985(2): one for conspiracy to deter him from testifying in the upcoming criminal trial and one for conspiracy to retaliate against him for attending the grand jury proceedings. As § 1985 demands, he also alleged that he had been "injured in his person or property" by the acts of respondents in violation of § 1985(2) and that he was entitled to recover his damages occasioned by such injury against respondents jointly and severally. Respondents moved to dismiss for failure to state a claim upon which relief can be granted. Because petitioner conceded that he was an at-will employee, the District Court granted the motion on the authority of Morast v. Lance, 807 F.2d 926 (1987). In Morast, the Eleventh Circuit held that an at-will employee who is dismissed pursuant to a conspiracy proscribed by § 1985(2) has no cause of action. The Morast court explained: "[T]o make out a cause of action under § 1985(2) the plaintiff must have suffered an actual injury. *124 Because Morast was an at will employee, . . . he had no constitutionally protected interest in continued employment. Therefore, Morast's discharge did not constitute an actual injury under this statute." Id., at 930. Relying on its decision in Morast, the Court of Appeals affirmed. Judgt. order reported at 132 F.3d 46 (1997). The Eleventh Circuit's rule in Morast conflicts with the holdings of the First and Ninth Circuits. See Irizarry v. Quiros, 722 F.2d 869, 871 (CA1 1983), and Portman v. County of Santa Clara, 995 F.2d 898, 909-910 (CA9 1993). We therefore granted certiorari, 523 U.S. 1136 (1998), to decide whether petitioner was "injured in his property or person" when respondents induced his employer to terminate petitioner's at-will employment as part of a conspiracy prohibited by § 1985(2). Section 1985(2), in relevant part, proscribes conspiracies to "deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified."[1] The statute provides that if one *125 or more persons engaged in such a conspiracy "do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, . . . the party so injured . . .may have an action for the recovery of damages occasioned by such injury . . . against any one or more of the conspirators." § 1985(3).[2] Petitioner's action was dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because, in the Eleventh Circuit's view, he had not suffered an injury that could give rise to a claim for damages under § 1985(2). We must, of course, assume that the facts as alleged in petitioner's complaint are true and that respondents engaged in a conspiracy prohibited by § 1985(2). Our review in this case is accordingly confined to one question: Can petitioner state a claim for damages by alleging that a conspiracy proscribed by § 1985(2) induced his employer to terminate his at-will employment?[3] We disagree with the Eleventh Circuit's conclusion that petitioner must suffer an injury to a "constitutionally protected property interest" to state a claim for damages under § 1985(2). Nothing in the language or purpose of the proscriptions in the first clause of § 1985(2), nor in its attendant remedial provisions, establishes such a requirement. The gist of the wrong at which § 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal-court proceedings. The terms "injured in his person or property" define the harm that the victim may suffer as a result of the conspiracy to intimidate or retaliate. Thus, the fact that employment at will is not "property" *126 for purposes of the Due Process Clause, see Bishop v. Wood, 426 U.S. 341, 345-347 (1976), does not mean that loss of at-will employment may not "injur[e] [petitioner] in his person or property" for purposes of § 1985(2). We hold that the sort of harm alleged by petitioner here—essentially third-party interference with at-will employment relationships—states a claim for relief under § 1985(2). Such harm has long been a compensable injury under tort law, and we see no reason to ignore this tradition in this case. As Thomas Cooley recognized: "One who maliciously and without justifiable cause, induces an employer to discharge an employee, by means of false statements, threats or putting in fear, or perhaps by means of malevolent advice and persuasion, is liable in an action of tort to the employee for the damages thereby sustained. And it makes no difference whether the employment was for a fixed term not yet expired or is terminable at the will of the employer." 2 Law of Torts 589-591 (3d ed. 1906) (emphasis added). This Court also recognized in Truax v. Raich, 239 U.S. 33 (1915): "The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employé has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will." Id. , at 38 (citing cases). The kind of interference with at-will employment relations alleged here is merely a species of the traditional torts of intentional interference with contractual relations and intentional interference with prospective contractual relations. See Restatement (Second) of Torts § 766, Comment *127 g, pp. 10-11 (1977); see also id. , § 766B, Comment c, at 22. This protection against third-party interference with at-will employment relations is still afforded by state law today. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keaton on Law of Torts § 129, pp. 995-996, and n. 83 (5th ed. 1984) (citing cases). For example, the State of Georgia, where the acts underlying the complaint in this case took place, provides a cause of action against third parties for wrongful interference with employment relations. See Georgia Power Co. v. Busbin, 242 Ga. 612, 613, 250 S.E.2d 442, 444 (1978) ("[E]ven though a person's employment contract is at will, he has a valuable contract right which may not be unlawfully interfered with by a third person"); see also Troy v. Interfinancial, Inc., 171 Ga. App. 763, 766— 769, 320 S.E.2d 872, 877-879 (1984) (directed verdict inappropriate against defendant who procured plaintiff's termination for failure to lie at a deposition hearing).[4] Thus, to the extent that the terms "injured in his person or property" in § 1985 refer to principles of tort law, see 3 W. Blackstone, Commentaries on the Laws of England 118 (1768) (describing the universe of common-law torts as "all private wrongs, or civil injuries, which may be offered to the rights of either a man's person or his property"), we find ample support for our holding that the harm occasioned by the conspiracy here may give rise to a claim for damages under § 1985(2). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Petitioner Michael A. Haddle, an at-will employee, alleges that respondents conspired to have him fired from his job in retaliation for obeying a federal grand jury subpoena and to deter him from testifying at a federal criminal trial. We hold that such interference with at-will employment may give rise to a claim for damages under the Civil Rights Act of 1, Rev. Stat. 1980, 42 U.S. C. 1985(2). According to petitioner's complaint, a federal grand jury indictment in March 1995 charged petitioner's employer, *123 Healthmaster, Inc., and respondents Jeanette Garrison and Dennis Kelly, officers of Healthmaster, with Medicare fraud. Petitioner cooperated with the federal agents in the investigation that preceded the indictment. He also appeared to testify before the grand jury pursuant to a subpoena, but did not testify due to the press of time. Petitioner was also expected to appear as a witness in the criminal trial resulting from the indictment. Although Garrison and Kelly were barred by the Bankruptcy Court from participating in the affairs of Healthmaster, they conspired with G. Peter Molloy, Jr., one of the remaining officers of Healthmaster, to bring about petitioner's termination. They did this both to intimidate petitioner and to retaliate against him for his attendance at the federal-court proceedings. Petitioner sued for damages in the United States District Court for the Southern District of Georgia, asserting a federal claim under 42 U.S. C. 1985(2) and various statelaw claims. Petitioner stated two grounds for relief under 1985(2): one for conspiracy to deter him from testifying in the upcoming criminal trial and one for conspiracy to retaliate against him for attending the grand jury proceedings. As 1985 demands, he also alleged that he had been "injured in his person or property" by the acts of respondents in violation of 1985(2) and that he was entitled to recover his damages occasioned by such injury against respondents jointly and severally. Respondents moved to dismiss for failure to state a claim upon which relief can be granted. Because petitioner conceded that he was an at-will employee, the District Court granted the motion on the authority of In Morast, the Eleventh Circuit held that an at-will employee who is dismissed pursuant to a conspiracy proscribed by 1985(2) has no cause of action. The Morast court explained: "[T]o make out a cause of action under 1985(2) the plaintiff must have suffered an actual injury. *124 Because Morast was an at will employee, he had no constitutionally protected interest in continued employment. Therefore, Morast's discharge did not constitute an actual injury under this statute." Relying on its decision in Morast, the Court of Appeals affirmed. Judgt. order reported at The Eleventh Circuit's rule in Morast conflicts with the holdings of the First and Ninth Circuits. See and We therefore granted certiorari, to decide whether petitioner was "injured in his property or person" when respondents induced his employer to terminate petitioner's at-will employment as part of a conspiracy prohibited by 1985(2). Section 1985(2), in relevant part, proscribes conspiracies to "deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified."[1] The statute provides that if one *125 or more persons engaged in such a conspiracy "do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, the party so injuredmay have an action for the recovery of damages occasioned by such injury against any one or more of the conspirators." 1985(3).[2] Petitioner's action was dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because, in the Eleventh Circuit's view, he had not suffered an injury that could give rise to a claim for damages under 1985(2). We must, of course, assume that the facts as alleged in petitioner's complaint are true and that respondents engaged in a conspiracy prohibited by 1985(2). Our review in this case is accordingly confined to one question: Can petitioner state a claim for damages by alleging that a conspiracy proscribed by 1985(2) induced his employer to terminate his at-will employment?[3] We disagree with the Eleventh Circuit's conclusion that petitioner must suffer an injury to a "constitutionally protected property interest" to state a claim for damages under 1985(2). Nothing in the language or purpose of the proscriptions in the first clause of 1985(2), nor in its attendant remedial provisions, establishes such a requirement. The gist of the wrong at which 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal-court proceedings. The terms "injured in his person or property" define the harm that the victim may suffer as a result of the conspiracy to intimidate or retaliate. Thus, the fact that employment at will is not "property" *126 for purposes of the Due Process Clause, see does not mean that loss of at-will employment may not "injur[e] [petitioner] in his person or property" for purposes of 1985(2). We hold that the sort of harm alleged by petitioner here—essentially third-party interference with at-will employment relationships—states a claim for relief under 1985(2). Such harm has long been a compensable injury under tort law, and we see no reason to ignore this tradition in this case. As Thomas Cooley recognized: "One who maliciously and without justifiable cause, induces an employer to discharge an employee, by means of false statements, threats or putting in fear, or perhaps by means of malevolent advice and persuasion, is liable in an action of tort to the employee for the damages thereby sustained. And it makes no difference whether the employment was for a fixed term not yet expired or is terminable at the will of the employer." 2 Law of Torts 589-591 (3d ed. 1906) (emphasis added). This Court also recognized in : "The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employé has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will." at 38 (citing cases). The kind of interference with at-will employment relations alleged here is merely a species of the traditional torts of intentional interference with contractual relations and intentional interference with prospective contractual relations. See Restatement (Second) of Torts 766, Comment *127 g, pp. 10-11 (1977); see also 766B, Comment c, at 22. This protection against third-party interference with at-will employment relations is still afforded by state law today. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keaton on Law of Torts 129, pp. 995-996, and n. 83 (citing cases). For example, the State of Georgia, where the acts underlying the complaint in this case took place, provides a cause of action against third parties for wrongful interference with employment relations. See Georgia Power ; see also[4] Thus, to the extent that the terms "injured in his person or property" in 1985 refer to principles of tort law, see 3 W. Blackstone, Commentaries on the Laws of England 118 (1768) (describing the universe of common-law torts as "all private wrongs, or civil injuries, which may be offered to the rights of either a man's person or his property"), we find ample support for our holding that the harm occasioned by the conspiracy here may give rise to a claim for damages under 1985(2). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Breyer

majority

Kentucky Retirement Systems v. EEOC

2008-06-19

https://www.courtlistener.com/opinion/145787/kentucky-retirement-systems-v-eeoc/

https://www.courtlistener.com/api/rest/v3/clusters/145787/

2007-061

The Commonwealth of Kentucky permits policemen, firemen, and other "hazardous position" workers to retire and to receive "normal retirement" benefits after either (1) working for 20 years; or (2) working for 5 years and attaining the age of 55. See Ky.Rev.Stat. Ann. §§ 16.576, 16.577(2) (Lexis 2003), 61.592(4) (Lexis Supp.2003). It permits those who become seriously disabled but have not otherwise become eligible for retirement to retire immediately and receive "disability retirement" benefits. See § 16.582(2)(b) (Lexis 2003). And it treats some of those disabled individuals more generously than it treats some of those who became disabled only after becoming eligible for retirement on the basis of age. The question before us is whether Kentucky's system consequently discriminates against the latter workers "because of . . . age." Age Discrimination in Employment Act of 1967 (ADEA or Act), § 4(a)(1), 81 Stat. 603, 29 U.S.C. § 623(a)(1). We conclude that it does not. I A Kentucky has put in place a special retirement plan (Plan) for state and county employees who occupy "[h]azardous position[s]," *2365 e.g., active duty law enforcement officers, firefighters, paramedics, and workers in correctional systems. See Ky. Rev.Stat. Ann. § 61.592(1)(a) (Lexis Supp. 2003). The Plan sets forth two routes through which such an employee can become eligible for what is called "normal retirement" benefits. The first makes an employee eligible for retirement after 20 years of service. The second makes an employee eligible after only 5 years of service provided that the employee has attained the age of 55. See §§ 16.576, 16.577(2), 61.592(4). An employee eligible under either route will receive a pension calculated in the same way: Kentucky multiplies years of service times 2.5% times final preretirement pay. See § 16.576(3). Kentucky's Plan has special provisions for hazardous position workers who become disabled but are not yet eligible for normal retirement. Where such an employee has worked for five years or became disabled in the line of duty, the employee can retire at once. See §§ 16.576(1), 16.582(2) (Lexis 2003). In calculating that employee's benefits Kentucky will add a certain number of ("imputed") years to the employee's actual years of service. The number of imputed years equals the number of years that the disabled employee would have had to continue working in order to become eligible for normal retirement benefits, i.e., the years necessary to bring the employee up to 20 years of service or to at least 5 years of service when the employee would turn 55 (whichever number of years is lower). See § 16.582(5)(a) (Lexis 2003). Thus, if an employee with 17 years of service becomes disabled at age 48, the Plan adds 3 years and calculates the benefits as if the employee had completed 20 years of service. If an employee with 17 years of service becomes disabled at age 54, the Plan adds 1 year and calculates the benefits as if the employee had retired at age 55 with 18 years of service. The Plan also imposes a ceiling on imputed years equal to the number of years the employee has previously worked (i.e., an employee who has worked eight years cannot receive more than eight additional imputed years), see § 16.582(5)(a); it provides for a certain minimum payment, see § 16.582(6) (Lexis 2003); and it contains various other details, none of which is challenged here. B Charles Lickteig, a hazardous position worker in the Jefferson County Sheriff's Department, became eligible for retirement at age 55, continued to work, became disabled, and then retired at age 61. The Plan calculated his annual pension on the basis of his actual years of service (18 years) times 2.5% times his final annual pay. Because Lickteig became disabled after he had already become eligible for normal retirement benefits, the Plan did not impute any additional years for purposes of the calculation. Lickteig complained of age discrimination to the Equal Employment Opportunity Commission (EEOC); and the EEOC then brought this age discrimination lawsuit against the Commonwealth of Kentucky, Kentucky's Plan administrator, and other state entities (to whom we shall refer collectively as "Kentucky"). The EEOC pointed out that, if Lickteig had become disabled before he reached the age of 55, the Plan, in calculating Lickteig's benefits would have imputed a number of additional years. And the EEOC argued that the Plan failed to impute years solely because Lickteig became disabled after he reached age 55. The District Court, making all appropriate evidence-related assumptions in the *2366 EEOC's favor, see Fed. Rule Civ. Proc. 56, held that the EEOC could not establish age discrimination; and it granted summary judgment in the defendants' favor. A panel of the Sixth Circuit affirmed that judgment. EEOC v. Jefferson Cty. Sheriff's Dept., 424 F.3d 467 (2005). The Sixth Circuit then granted rehearing en banc, held that Kentucky's Plan did violate the ADEA, and reversed and remanded for further proceedings. 467 F.3d 571 (2006). Kentucky sought certiorari. In light of the potentially serious impact of the Circuit's decision upon pension benefits provided under plans in effect in many States, we granted the writ. See, e.g., Ind.Code §§ 36-8-8-3.3(b) and (c) (West 2004); Mich. Comp. Laws Ann. §§ 38.23 and 38.556(2)(d) (West 2005); N.C. Gen.Stat. Ann. §§ 135-1 and 135-5 (Lexis 2007); Pa. Stat. Ann., Tit. 7, §§ 5102 and 5704 (Purdon Supp.2007), Tenn.Code Ann. § 8-36-501(c)(3) (Supp.2007). See also Reply Brief for Petitioners 20-21 (predicting, inter alia, large increase in pension liabilities, potential reduction in benefits for all disabled persons, or both); Brief for National Association of State Retirement Administrators et al. as Amici Curiae 8-14 (same). II The ADEA forbids an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (emphasis added). In Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993), the Court explained that where, as here, a plaintiff claims age-related "disparate treatment" (i.e., intentional discrimination "because of . . . age") the plaintiff must prove that age "actually motivated the employer's decision." Id., at 610, 113 S. Ct. 1701 (emphasis added); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). The Court noted that "[t]he employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment" because of age, or "the employer may have been motivated by [age] on an ad hoc, informal basis." Hazen Paper, 507 U.S., at 610, 113 S. Ct. 1701. But "[w]hatever the employer's decisionmaking process," a plaintiff alleging disparate treatment cannot succeed unless the employee's age "actually played a role in that process and had a determinative influence on the outcome." Ibid. (emphasis added). Cf. Smith v. City of Jackson, 544 U.S. 228, 239-240, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005) (plurality opinion) (describing "disparate-impact" theory, not here at issue, which focuses upon unjustified discriminatory results). In Hazen Paper the Court considered a disparate treatment claim that an employer had unlawfully dismissed a 62-year-old employee with over 9½ years of service in order to avoid paying pension benefits that would have vested after 10 years. The Court held that, without more evidence of intent, the ADEA would not forbid dismissal of the claim. A dismissal based on pension status was not a dismissal "because. . . of age." 507 U.S., at 611-612, 113 S. Ct. 1701. Of course, pension status depended upon years of service, and years of service typically go hand in hand with age. Id., at 611, 113 S. Ct. 1701. But the two concepts were nonetheless "analytically distinct." Ibid. An employer could easily "take account of one while ignoring the other." Ibid. And the dismissal in question, if based purely upon pension status (related to years of service), would not embody the evils that led Congress to enact the ADEA in the first place: The dismissal was not based on a "prohibited *2367 stereotype" of older workers, did not produce any "attendant stigma" to those workers, and was not "the result of an inaccurate and denigrating generalization about age." Id., at 612, 113 S. Ct. 1701. At the same time, Hazen Paper indicated that discrimination on the basis of pension status could sometimes be unlawful under the ADEA, in particular where pension status served as a "proxy for age." Id., at 613, 113 S. Ct. 1701. Suppose, for example, an employer "target[ed] employees with a particular pension status on the assumption that these employees are likely to be older." Id., at 612-613, 113 S. Ct. 1701. In such a case, Hazen Paper suggested, age, not pension status, would have "actually motivated" the employer's decision-making. Hazen Paper also left open "the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service." Id., at 613, 113 S. Ct. 1701. We here consider a variation on this "special case" theme. III Kentucky's Plan turns normal pension eligibility either upon the employee's having attained 20 years of service alone or upon the employees having attained 5 years of service and reached the age of 55. The ADEA permits an employer to condition pension eligibility upon age. See 29 U.S.C.A. § 623(l)(1)(A)(i) (Supp.2007). Thus we must decide whether a plan that (1) lawfully makes age in part a condition of pension eligibility, and (2) treats workers differently in light of their pension status, (3) automatically discriminates because of age. The Government argues "yes." But, following Hazen Paper's approach, we come to a different conclusion. In particular, the following circumstances, taken together, convince us that, in this particular instance, differences in treatment were not "actually motivated" by age. First, as a matter of pure logic, age and pension status remain "analytically distinct" concepts. Hazen Paper, 507 U.S., at 611, 113 S. Ct. 1701. That is to say, one can easily conceive of decisions that are actually made "because of" pension status and not age, even where pension status is itself based on age. Suppose, for example that an employer pays all retired workers a pension, retirement eligibility turns on age, say 65, and a 70-year-old worker retires. Nothing in language or in logic prevents one from concluding that the employer has begun to pay the worker a pension, not because the worker is over 65, but simply because the worker has retired. Second, several background circumstances eliminate the possibility that pension status, though analytically distinct from age, nonetheless serves as a "proxy for age" in Kentucky's Plan. Cf. id., at 613, 113 S. Ct. 1701. We consider not an individual employment decision, but a set of complex systemwide rules. These systemic rules involve, not wages, but pensions— a benefit that the ADEA treats somewhat more flexibly and leniently in respect to age. See, e.g., 29 U.S.C.A. § 623(l)(1)(A)(i) (Supp.2007) (explicitly allowing pension eligibility to turn on age); 29 U.S.C. § 623(l)(2)(A) (allowing employer to consider (age-related) pension benefits in determining level of severance pay); § 623(l)(3) (allowing employer to consider (age-related) pension benefits in determining level of long-term disability benefits). And the specific benefit at issue here is offered to all hazardous position workers on the same nondiscriminatory terms ex ante. That is to say, every such employee, when hired, is promised disability retirement benefits should he become disabled *2368 prior to the time that he is eligible for normal retirement benefits. Furthermore, Congress has otherwise approved of programs that calculate permanent disability benefits using a formula that expressly takes account of age. For example, the Social Security Administration now uses such a formula in calculating Social Security Disability Insurance benefits. See, e.g., 42 U.S.C. § 415(b)(2)(B)(iii); 20 CFR § 404.211(e) (2007). And until (and in some cases after) 1984, federal employees received permanent disability benefits based on a formula that, in certain circumstances, did not just consider age, but effectively imputed years of service only to those disabled workers younger than 60. See 5 U.S.C. § 8339(g) (2006 ed.); see also Office of Personnel Management, Disability Retirement Under the Civil Service Retirement System, Retirement Facts 4, p. 3 (rev.Nov.1997), on line at http://www.opm.gov/forms/ pdfimage/RI83-4.pdf (as visited June 16, 2008, and available in Clerk of Court's case file). Third, there is a clear non-age-related rationale for the disparity here at issue. The manner in which Kentucky calculates disability retirement benefits is in every important respect but one identical to the manner in which Kentucky calculates normal retirement benefits. The one significant difference consists of the fact that the Plan imputes additional years of service to disabled individuals. But the Plan imputes only those years needed to bring the disabled worker's years of service to 20 or to the number of years that the individual would have worked had he worked to age 55. The disability rules clearly track Kentucky's normal retirement rules. It is obvious, then, that the whole purpose of the disability rules is, as Kentucky claims, to treat a disabled worker as though he had become disabled after, rather than before, he had become eligible for normal retirement benefits. Age factors into the disability calculation only because the normal retirement rules themselves permissibly include age as a consideration. No one seeking to help disabled workers in the way that Kentucky's rules seek to help those workers would care whether Kentucky's normal system turned eligibility in part upon age or upon other, different criteria. That this is so is suggested by the fact that one can readily construct a plan that produces an identical disparity but is age neutral. Suppose that Kentucky's Plan made eligible for a pension (a) day-shift workers who have 20 years of service, and (b) night-shift workers who have 15 years of service. Suppose further that the Plan calculates the amount of the pension the same way in either case, which method of calculation depends solely upon years of service (say, giving the worker a pension equal to $1,000 for each year of service). If the Plan were then to provide workers who become disabled prior to pension eligibility the same pension the workers would have received had they worked until they became pension eligible, the plan would create a disparity between disabled day-shift and night-shift workers: A day-shift worker who becomes disabled before becoming pension eligible would, in many instances, end up receiving a bigger pension than a night-shift worker who becomes disabled after becoming pension eligible. For example, a day-shift worker who becomes disabled prior to becoming pension-eligible would receive an annual pension of $20,000, while a night-shift worker who becomes disabled after becoming pension-eligible, say, after 16 years of service, would receive an annual pension of $16,000. The disparity in this example is not "actually motivated" by bias against night-shift workers. Rather, such a disparity, *2369 like the disparity in the case before us, is simply an artifact of Plan rules that treat one set of workers more generously in respect to the timing of their eligibility for normal retirement benefits but which do not treat them more generously in respect to the calculation of the amount of their normal retirement benefits. The example helps to show that the Plan at issue in this case simply seeks to treat disabled employees as if they had worked until the point at which they would be eligible for a normal pension. The disparity turns upon pension eligibility and nothing more. Fourth, although Kentucky's Plan placed an older worker at a disadvantage in this case, in other cases, it can work to the advantage of older workers. Consider, for example, two disabled workers, one of whom is aged 45 with 10 years of service, one of whom is aged 40 with 15 years of service. Under Kentucky's scheme, the older worker would actually get a bigger boost of imputed years than the younger worker (10 years would be imputed to the former, while only 5 years would be imputed to the latter). And that fact helps to confirm that the underlying motive is not an effort to discriminate "because of . . . age." Fifth, Kentucky's system does not rely on any of the sorts of stereotypical assumptions that the ADEA sought to eradicate. It does not rest on any stereotype about the work capacity of "older" workers relative to "younger" workers. See, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 590, 124 S. Ct. 1236, 157 L. Ed. 2d 1094 (2004) (noting that except on one point, all the findings and statements of objectives in the ADEA are "either cast in terms of the effects of age as intensifying over time, or are couched in terms that refer to `older' workers, explicitly or implicitly relative to `younger' ones" (emphasis added)). The Plan does assume that all disabled workers would have worked to the point at which they would have become eligible for a pension. It also assumes that no disabled worker would have continued working beyond the point at which he was both (1) disabled; and (2) pension eligible. But these "assumptions" do not involve age-related stereotypes, and they apply equally to all workers, regardless of age. Sixth, the nature of the Plan's eligibility requirements means that, unless Kentucky were severely to cut the benefits given to disabled workers who are not yet pension eligible (which Kentucky claims it will do if its present Plan is unlawful), Kentucky would have to increase the benefits available to disabled, pension-eligible workers, while lacking any clear criteria for determining how many extra years to impute for those pension-eligible workers who already are 55 or older. The difficulty of finding a remedy that can both correct the disparity and achieve the Plan's legitimate objective—providing each disabled worker with a sufficient retirement benefit, namely, the normal retirement benefit that the worker would receive if he were pension eligible at the time of disability—further suggests that this objective and not age "actually motivated" the Plan. The above factors all taken together convince us that the Plan does not, on its face, create treatment differences that are "actually motivated" by age. And, for present purposes, we accept the District Court's finding that the Government has pointed to no additional evidence that might permit a factfinder to reach a contrary conclusion. See App. 28-30. It bears emphasizing that our opinion in no way unsettles the rule that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA. We are dealing today with the quite special case of *2370 differential treatment based on pension status, where pension status—with the explicit blessing of the ADEA—itself turns, in part, on age. Further, the rule we adopt today for dealing with this sort of case is clear: Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was "actually motivated" by age, not pension status. And our discussion of the factors that lead us to conclude that the Government has failed to make the requisite showing in this case provides an indication of what a plaintiff might show in other cases to meet his burden of proving that differential treatment based on pension status is in fact discrimination "because of" age. IV The Government makes two additional arguments. First, it looks for support to an amendment that Congress made to the ADEA after this Court's decision in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 109 S. Ct. 2854, 106 L. Ed. 2d 134 (1989). In Betts, the employer denied a worker disability benefits on the ground that its bona fide benefit program provided disability benefits only to workers who became disabled prior to age 60, and the worker in that case became disabled at age 61. Id., at 163, 109 S. Ct. 2854. The ADEA at that time exempted from its prohibitions employment decisions taken pursuant to the terms of "`any bona fide employee benefit plan . . . which is not a subterfuge to evade the purposes of' the Act." Id., at 161, 109 S. Ct. 2854 (quoting 29 U.S.C. § 623(f)(2) (1982 ed., Supp. V)). And the Court held that the employer's decision fell within that exception. 492 U.S., at 182, 109 S. Ct. 2854. Subsequently Congress amended the ADEA to make clear that it covered age-based discrimination in respect to all employee benefits. See Older Workers Benefit Protection Act, § 102, 104 Stat. 978, 29 U.S.C. § 630(l) (2000 ed.). Congress replaced the "not a subterfuge" exception with a provision stating that age-based disparities in the provision of benefits are lawful only when they are justified in respect to cost savings. Id., at 978-979; 29 U.S.C. § 623(f)(2)(B)(i). We agree with the Government that the amendment broadened the field of employer actions subject to antidiscrimination rules and it narrowed the statutorily available justifications for age-related differences. But these facts cannot help the Government here. We do not dispute that ADEA prohibitions apply to the Plan at issue, and our basis for finding the Plan lawful does not rest upon amendment-related justifications. Rather, we find that the discrimination is not "actually motivated" by age. Thus Hazen Paper, not Betts, provides relevant precedent. And the amendment cited by the Government is beside the point. Second, the Government says that we must defer to a contrary EEOC interpretation contained in an EEOC regulation and compliance manual. The regulation, however, says only that providing "the same level of benefits to older workers as to younger workers" does not violate the Act. 29 CFR § 1625.10(a)(2) (2007). The Government's interpretation of this language is not entitled to deference because, on its face, the regulation "does little more than restate the terms of the statute itself." Gonzales v. Oregon, 546 U.S. 243, 257, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006) (denying deference to an agency interpretation of its own regulation in light of the "near equivalence" of the statute and regulation). *2371 The Compliance Manual provides more explicitly that benefits are not "equal" insofar as a plan "reduces or eliminates benefits based on a criterion that is explicitly defined (in whole or in part) by age." 2 EEOC Compliance Manual § 3, p. 627:00041 (2001) (bold typeface deleted). And the Compliance Manual further provides that "[b]asing disability retirement benefits on the number of years a disabled employee would have worked until normal retirement age by definition gives more constructive years of service to younger than to older employees" and thus violates the Act. See id., at 627:0010. These statements, while important, cannot lead us to a different conclusion. See National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 111, n. 6, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) (noting that compliance manuals are "`"entitled to respect" under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944)'"); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000). Following Hazen Paper, we interpret the Act as requiring a showing that the discrimination at issue "actually motivated" the employer's decision. Given the reasons set forth in Part III, supra, we conclude that evidence of that motivation was lacking here. And the EEOC's statement in the Compliance Manual that it automatically reaches a contrary conclusion—a statement that the Manual itself makes little effort to justify—lacks the necessary "power to persuade" us. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944). V The judgment of the Court of Appeals is reversed. It is so ordered.

The Commonwealth of Kentucky permits policemen, firemen, and other "hazardous position" workers to retire and to receive "normal retirement" benefits after either (1) working for 20 years; or (2) working for 5 years and attaining the age of 55. See Ky.Rev.Stat. Ann. 16.576, 16.577(2) (Lexis 2003), 61.592(4) (Lexis Supp.2003). It permits those who become seriously disabled but have not otherwise become eligible for retirement to retire immediately and receive "disability retirement" benefits. See 16.582(2)(b) (Lexis 2003). And it treats some of those disabled individuals more generously than it treats some of those who became disabled only after becoming eligible for retirement on the basis of age. The question before us is whether Kentucky's system consequently discriminates against the latter workers "because of age." Age Discrimination in Employment Act of 1967 (ADEA or Act), 4(a)(1), 29 U.S.C. 623(a)(1). We conclude that it does not. I A Kentucky has put in place a special retirement plan (Plan) for state and county employees who occupy "[h]azardous position[s]," *2365 e.g., active duty law enforcement officers, firefighters, paramedics, and workers in correctional systems. See Ky. Rev.Stat. Ann. 61.592(1)(a) (Lexis Supp. 2003). The Plan sets forth two routes through which such an employee can become eligible for what is called "normal retirement" benefits. The first makes an employee eligible for retirement after 20 years of service. The second makes an employee eligible after only 5 years of service provided that the employee has attained the age of 55. See 16.576, 16.577(2), 61.592(4). An employee eligible under either route will receive a pension calculated in the same way: Kentucky multiplies years of service times 2.5% times final preretirement pay. See 16.576(3). Kentucky's Plan has special provisions for hazardous position workers who become disabled but are not yet eligible for normal retirement. Where such an employee has worked for five years or became disabled in the line of duty, the employee can retire at once. See 16.576(1), 16.582(2) (Lexis 2003). In calculating that employee's benefits Kentucky will add a certain number of ("imputed") years to the employee's actual years of service. The number of imputed years equals the number of years that the disabled employee would have had to continue working in order to become eligible for normal retirement benefits, i.e., the years necessary to bring the employee up to 20 years of service or to at least 5 years of service when the employee would turn 55 (whichever number of years is lower). See 16.582(5)(a) (Lexis 2003). Thus, if an employee with 17 years of service becomes disabled at age 48, the Plan adds 3 years and calculates the benefits as if the employee had completed 20 years of service. If an employee with 17 years of service becomes disabled at age 54, the Plan adds 1 year and calculates the benefits as if the employee had retired at age 55 with 18 years of service. The Plan also imposes a ceiling on imputed years equal to the number of years the employee has previously worked (i.e., an employee who has worked eight years cannot receive more than eight additional imputed years), see 16.582(5)(a); it provides for a certain minimum payment, see 16.582(6) (Lexis 2003); and it contains various other details, none of which is challenged here. B Charles Lickteig, a hazardous position worker in the Jefferson County Sheriff's Department, became eligible for retirement at age 55, continued to work, became disabled, and then retired at age 61. The Plan calculated his annual pension on the basis of his actual years of service (18 years) times 2.5% times his final annual pay. Because Lickteig became disabled after he had already become eligible for normal retirement benefits, the Plan did not impute any additional years for purposes of the calculation. Lickteig complained of age discrimination to the Equal Employment Opportunity Commission (EEOC); and the EEOC then brought this age discrimination lawsuit against the Commonwealth of Kentucky, Kentucky's Plan administrator, and other state entities (to whom we shall refer collectively as "Kentucky"). The EEOC pointed out that, if Lickteig had become disabled before he reached the age of 55, the Plan, in calculating Lickteig's benefits would have imputed a number of additional years. And the EEOC argued that the Plan failed to impute years solely because Lickteig became disabled after he reached age 55. The District Court, making all appropriate evidence-related assumptions in the *2366 EEOC's favor, see Fed. Rule Civ. Proc. 56, held that the EEOC could not establish age discrimination; and it granted summary judgment in the defendants' favor. A panel of the Sixth Circuit affirmed that judgment. The Sixth Circuit then granted rehearing en banc, held that Kentucky's Plan did violate the ADEA, and reversed and remanded for further proceedings. Kentucky sought certiorari. In light of the potentially serious impact of the Circuit's decision upon pension benefits provided under plans in effect in many States, we granted the writ. See, e.g., Ind.Code 36-8-8-3.3(b) and (c) ; Mich. Comp. Laws Ann. 38.23 and 38.556(2)(d) ; N.C. Gen.Stat. Ann. 135-1 and 135-5 (Lexis 2007); Pa. Stat. Ann., Tit. 7, 5102 and 5704 (Purdon Supp.2007), Tenn.Code Ann. 8-36-501(c)(3) (Supp.2007). See also Reply Brief for Petitioners 20-21 (predicting, inter alia, large increase in pension liabilities, potential reduction in benefits for all disabled persons, or both); Brief for National Association of State Retirement Administrators et al. as Amici Curiae 8-14 (same). II The ADEA forbids an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1) In Hazen the Court explained that where, as here, a plaintiff claims age-related "disparate treatment" (i.e., intentional discrimination "because of age") the plaintiff must prove that age "actually motivated the employer's decision." ; see also The Court noted that "[t]he employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment" because of age, or "the employer may have been motivated by [age] on an ad hoc, informal basis." Hazen 507 U.S., But "[w]hatever the employer's decisionmaking process," a plaintiff alleging disparate treatment cannot succeed unless the employee's age "actually played a role in that process and had a determinative influence on the outcome." Cf. (describing "disparate-impact" theory, not here at issue, which focuses upon unjustified discriminatory results). In Hazen the Court considered a disparate treatment claim that an employer had unlawfully dismissed a 62-year-old employee with over 9½ years of service in order to avoid paying pension benefits that would have vested after 10 years. The Court held that, without more evidence of intent, the ADEA would not forbid dismissal of the claim. A dismissal based on pension status was not a dismissal "because. of age." -612, Of course, pension status depended upon years of service, and years of service typically go hand in hand with age. But the two concepts were nonetheless "analytically distinct." An employer could easily "take account of one while ignoring the other." And the dismissal in question, if based purely upon pension status (related to years of service), would not embody the evils that led Congress to enact the ADEA in the first place: The dismissal was not based on a "prohibited *2367 stereotype" of older workers, did not produce any "attendant stigma" to those workers, and was not "the result of an inaccurate and denigrating generalization about age." At the same time, Hazen indicated that discrimination on the basis of pension status could sometimes be unlawful under the ADEA, in particular where pension status served as a "proxy for age." Suppose, for example, an employer "target[ed] employees with a particular pension status on the assumption that these employees are likely to be older." -613, In such a case, Hazen suggested, age, not pension status, would have "actually motivated" the employer's decision-making. Hazen also left open "the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service." We here consider a variation on this "special case" theme. Kentucky's Plan turns normal pension eligibility either upon the employee's having attained 20 years of service alone or upon the employees having attained 5 years of service and reached the age of 55. The ADEA permits an employer to condition pension eligibility upon age. See 29 U.S.C.A. 623(l)(1)(A)(i) (Supp.2007). Thus we must decide whether a plan that (1) lawfully makes age in part a condition of pension eligibility, and (2) treats workers differently in light of their pension status, (3) automatically discriminates because of age. The Government argues "yes." But, following Hazen 's approach, we come to a different conclusion. In particular, the following circumstances, taken together, convince us that, in this particular instance, differences in treatment were not "actually motivated" by age. First, as a matter of pure logic, age and pension status remain "analytically distinct" concepts. Hazen That is to say, one can easily conceive of decisions that are actually made "because of" pension status and not age, even where pension status is itself based on age. Suppose, for example that an employer pays all retired workers a pension, retirement eligibility turns on age, say 65, and a 70-year-old worker retires. Nothing in language or in logic prevents one from concluding that the employer has begun to pay the worker a pension, not because the worker is over 65, but simply because the worker has retired. Second, several background circumstances eliminate the possibility that pension status, though analytically distinct from age, nonetheless serves as a "proxy for age" in Kentucky's Plan. Cf. We consider not an individual employment decision, but a set of complex systemwide rules. These systemic rules involve, not wages, but pensions— a benefit that the ADEA treats somewhat more flexibly and leniently in respect to age. See, e.g., 29 U.S.C.A. 623(l)(1)(A)(i) (Supp.2007) ; 29 U.S.C. 623(l)(2)(A) ; 623(l)(3) (allowing employer to consider (age-related) pension benefits in determining level of long-term disability benefits). And the specific benefit at issue here is offered to all hazardous position workers on the same nondiscriminatory terms ex ante. That is to say, every such employee, when hired, is promised disability retirement benefits should he become disabled *2368 prior to the time that he is eligible for normal retirement benefits. Furthermore, Congress has otherwise approved of programs that calculate permanent disability benefits using a formula that expressly takes account of age. For example, the Social Security Administration now uses such a formula in calculating Social Security Disability Insurance benefits. See, e.g., 42 U.S.C. 415(b)(2)(B)(iii); 20 CFR 404.211(e) (2007). And until (and in some cases after) 1984, federal employees received permanent disability benefits based on a formula that, in certain circumstances, did not just consider age, but effectively imputed years of service only to those disabled workers younger than 60. See 5 U.S.C. 8339(g) ( ed.); see also Office of Personnel Management, Disability Retirement Under the Civil Service Retirement System, Retirement Facts 4, p. 3 (rev.Nov.1997), on line at http://www.opm.gov/forms/ pdfimage/RI83-4.pdf (as visited June 16, 2008, and available in Clerk of Court's case file). Third, there is a clear non-age-related rationale for the disparity here at issue. The manner in which Kentucky calculates disability retirement benefits is in every important respect but one identical to the manner in which Kentucky calculates normal retirement benefits. The one significant difference consists of the fact that the Plan imputes additional years of service to disabled individuals. But the Plan imputes only those years needed to bring the disabled worker's years of service to 20 or to the number of years that the individual would have worked had he worked to age 55. The disability rules clearly track Kentucky's normal retirement rules. It is obvious, then, that the whole purpose of the disability rules is, as Kentucky claims, to treat a disabled worker as though he had become disabled after, rather than before, he had become eligible for normal retirement benefits. Age factors into the disability calculation only because the normal retirement rules themselves permissibly include age as a consideration. No one seeking to help disabled workers in the way that Kentucky's rules seek to help those workers would care whether Kentucky's normal system turned eligibility in part upon age or upon other, different criteria. That this is so is suggested by the fact that one can readily construct a plan that produces an identical disparity but is age neutral. Suppose that Kentucky's Plan made eligible for a pension (a) day-shift workers who have 20 years of service, and (b) night-shift workers who have 15 years of service. Suppose further that the Plan calculates the amount of the pension the same way in either case, which method of calculation depends solely upon years of service (say, giving the worker a pension equal to $1,000 for each year of service). If the Plan were then to provide workers who become disabled prior to pension eligibility the same pension the workers would have received had they worked until they became pension eligible, the plan would create a disparity between disabled day-shift and night-shift workers: A day-shift worker who becomes disabled before becoming pension eligible would, in many instances, end up receiving a bigger pension than a night-shift worker who becomes disabled after becoming pension eligible. For example, a day-shift worker who becomes disabled prior to becoming pension-eligible would receive an annual pension of $20,000, while a night-shift worker who becomes disabled after becoming pension-eligible, say, after 16 years of service, would receive an annual pension of $16,000. The disparity in this example is not "actually motivated" by bias against night-shift workers. Rather, such a disparity, *2369 like the disparity in the case before us, is simply an artifact of Plan rules that treat one set of workers more generously in respect to the timing of their eligibility for normal retirement benefits but which do not treat them more generously in respect to the calculation of the amount of their normal retirement benefits. The example helps to show that the Plan at issue in this case simply seeks to treat disabled employees as if they had worked until the point at which they would be eligible for a normal pension. The disparity turns upon pension eligibility and nothing more. Fourth, although Kentucky's Plan placed an older worker at a disadvantage in this case, in other cases, it can work to the advantage of older workers. Consider, for example, two disabled workers, one of whom is aged 45 with 10 years of service, one of whom is aged 40 with 15 years of service. Under Kentucky's scheme, the older worker would actually get a bigger boost of imputed years than the younger worker (10 years would be imputed to the former, while only 5 years would be imputed to the latter). And that fact helps to confirm that the underlying motive is not an effort to discriminate "because of age." Fifth, Kentucky's system does not rely on any of the sorts of stereotypical assumptions that the ADEA sought to eradicate. It does not rest on any stereotype about the work capacity of "older" workers relative to "younger" workers. See, e.g., General Dynamics Land Systems, (noting that except on one point, all the findings and statements of objectives in the ADEA are "either cast in terms of the effects of age as intensifying over time, or are couched in terms that refer to `older' workers, explicitly or implicitly relative to `younger' ones" ). The Plan does assume that all disabled workers would have worked to the point at which they would have become eligible for a pension. It also assumes that no disabled worker would have continued working beyond the point at which he was both (1) disabled; and (2) pension eligible. But these "assumptions" do not involve age-related stereotypes, and they apply equally to all workers, regardless of age. Sixth, the nature of the Plan's eligibility requirements means that, unless Kentucky were severely to cut the benefits given to disabled workers who are not yet pension eligible (which Kentucky claims it will do if its present Plan is unlawful), Kentucky would have to increase the benefits available to disabled, pension-eligible workers, while lacking any clear criteria for determining how many extra years to impute for those pension-eligible workers who already are 55 or older. The difficulty of finding a remedy that can both correct the disparity and achieve the Plan's legitimate objective—providing each disabled worker with a sufficient retirement benefit, namely, the normal retirement benefit that the worker would receive if he were pension eligible at the time of disability—further suggests that this objective and not age "actually motivated" the Plan. The above factors all taken together convince us that the Plan does not, on its face, create treatment differences that are "actually motivated" by age. And, for present purposes, we accept the District Court's finding that the Government has pointed to no additional evidence that might permit a factfinder to reach a contrary conclusion. See App. 28-30. It bears emphasizing that our opinion in no way unsettles the rule that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA. We are dealing today with the quite special case of *2370 differential treatment based on pension status, where pension status—with the explicit blessing of the ADEA—itself turns, in part, on age. Further, the rule we adopt today for dealing with this sort of case is clear: Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was "actually motivated" by age, not pension status. And our discussion of the factors that lead us to conclude that the Government has failed to make the requisite showing in this case provides an indication of what a plaintiff might show in other cases to meet his burden of proving that differential treatment based on pension status is in fact discrimination "because of" age. IV The Government makes two additional arguments. First, it looks for support to an amendment that Congress made to the ADEA after this Court's decision in Public Employees Retirement System of In Betts, the employer denied a worker disability benefits on the ground that its bona fide benefit program provided disability benefits only to workers who became disabled prior to age 60, and the worker in that case became disabled at age 61. The ADEA at that time exempted from its prohibitions employment decisions taken pursuant to the terms of "`any bona fide employee benefit plan which is not a subterfuge to evade the purposes of' the Act." (quoting 29 U.S.C. 623(f)(2) (1982 ed., Supp. V)). And the Court held that the employer's decision fell within that Subsequently Congress amended the ADEA to make clear that it covered age-based discrimination in respect to all employee benefits. See Older Workers Benefit Protection Act, 102, 29 U.S.C. 630(l) ( ed.). Congress replaced the "not a subterfuge" exception with a provision stating that age-based disparities in the provision of benefits are lawful only when they are justified in respect to cost savings. ; 29 U.S.C. 623(f)(2)(B)(i). We agree with the Government that the amendment broadened the field of employer actions subject to antidiscrimination rules and it narrowed the statutorily available justifications for age-related differences. But these facts cannot help the Government here. We do not dispute that ADEA prohibitions apply to the Plan at issue, and our basis for finding the Plan lawful does not rest upon amendment-related justifications. Rather, we find that the discrimination is not "actually motivated" by age. Thus Hazen not Betts, provides relevant precedent. And the amendment cited by the Government is beside the point. Second, the Government says that we must defer to a contrary EEOC interpretation contained in an EEOC regulation and compliance manual. The regulation, however, says only that providing "the same level of benefits to older workers as to younger workers" does not violate the Act. 29 CFR 1625.10(a)(2) (2007). The Government's interpretation of this language is not entitled to deference because, on its face, the regulation "does little more than restate the terms of the statute itself." *2371 The Compliance Manual provides more explicitly that benefits are not "equal" insofar as a plan "reduces or eliminates benefits based on a criterion that is explicitly defined (in whole or in part) by age." 2 EEOC Compliance Manual 3, p. 627:00041 (2001) (bold typeface deleted). And the Compliance Manual further provides that "[b]asing disability retirement benefits on the number of years a disabled employee would have worked until normal retirement age by definition gives more constructive years of service to younger than to older employees" and thus violates the Act. See These statements, while important, cannot lead us to a different conclusion. See National Railroad Passenger ; see also Following Hazen we interpret the Act as requiring a showing that the discrimination at issue "actually motivated" the employer's decision. Given the reasons set forth in Part we conclude that evidence of that motivation was lacking here. And the EEOC's statement in the Compliance Manual that it automatically reaches a contrary conclusion—a statement that the Manual itself makes little effort to justify—lacks the necessary "power to persuade" us. V The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Kennedy

dissenting

Kentucky Retirement Systems v. EEOC

2008-06-19

https://www.courtlistener.com/opinion/145787/kentucky-retirement-systems-v-eeoc/

https://www.courtlistener.com/api/rest/v3/clusters/145787/

2007-061

The Court today ignores established rules for interpreting and enforcing one of the most important statutes Congress has enacted to protect the Nation's work force from age discrimination, the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. That Act prohibits employment actions that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." § 623(a)(1). In recent years employers and employees alike have been advised by this Court, by most Courts of Appeals, and by the agency charged with enforcing the Act, the Equal Employment Opportunity Commission (EEOC), that the most straightforward reading of the statute is the correct one: When an employer makes age a factor in an employee benefit plan in a formal, facial, deliberate, and explicit manner, to the detriment of older employees, this is a violation of the Act. Disparate treatment on the basis of age is prohibited unless some exemption or defense provided in the Act applies. The Court today undercuts this basic framework. In doing so it puts the Act and its enforcement on a wrong course. The decision of the en banc panel of the Court of Appeals for the Sixth Circuit, which the Court reverses, brought that Circuit's case law into line with that of its sister Circuits. See EEOC v. Jefferson Cty. Sheriff's Dept., 467 F.3d 571, 573 (2006) (overturning Lyon v. Ohio Ed. Assn. and Professional Staff Union, 53 F.3d 135 (1995)); see also, e.g., Jankovitz v. Des Moines Independent Community School Dist., 421 F.3d 649, 653-655 (C.A.8 2005); Abrahamson v. Board of Ed. of Wappingers Falls Central School Dist., *2372 374 F.3d 66, 72-73 (C.A.2 2004); Arnett v. California Public Employees Retirement System, 179 F.3d 690, 695-697 (C.A.9 1999); Auerbach v. Board of Ed. of Harborfields Central School Dist. of Greenlawn, 136 F.3d 104, 109-114 (C.A.2 1998); Huff v. UARCO, Inc., 122 F.3d 374, 387-388 (C.A.7 1997). By embracing the approach rejected by the en banc panel and all other Courts of Appeals that have addressed this issue, this Court creates unevenness in administration, unpredictability in litigation, and uncertainty as to employee rights once thought well settled. These consequences, and the Court's errors in interpreting the statute and our cases, require this respectful dissent. Even were the Court correct that Kentucky's facially discriminatory disability benefits plan can be justified by a proper motive, the employer's own submission to us reveals that the plan's discriminatory classification rests upon a stereotypical assumption that itself violates the Act and the Court's own analytical framework. As a threshold matter, all should concede that the paradigm offered to justify the statute is a powerful one: The young police officer or firefighter with a family is disabled in the heroic performance of his or her duty. Disability payments are increased to account for unworked years of service. What the Court overlooks, however, is that a 61-year-old officer or firefighter who is disabled in the same heroic action receives, in many instances, a lower payment and for one reason alone: By explicit command of Kentucky's disability plan age is an express disadvantage in calculating the disability payment. This is a straightforward act of discrimination on the basis of age. Though the Commonwealth is entitled by the law, in some instances, to defend an age-based differential as cost justified, 29 U.S.C. § 623(f)(2)(B)(ii), that has yet to be established here. What an employer cannot do, and what the Court ought not to do, is to pretend that this explicit discrimination based on age is somehow consistent with the broad statutory and regulatory prohibition against disparate treatment based on age. I The following appears to be common ground for both sides of the dispute: Kentucky operates dual retirement systems for employees in hazardous occupations. An employee is eligible for normal retirement if he or she has accumulated 20 years of service with the Commonwealth, or is over age 55 and has accumulated at least 5 years of service. If the employee can no longer work as a result of a disability, however, he or she is entitled to receive disability retirement. Employees who are eligible for normal retirement benefits are ineligible for disability retirement. See Ky.Rev.Stat. Ann. §§ 16.576, 16.577(2) (Lexis 2003), 61.592(4) (Lexis Cum.Supp. 2003). The distinction between normal and disability retirement is not just a difference of nomenclature. Under the normal retirement system benefits are calculated by multiplying a percentage of the employee's pay at retirement by years of service. See § 16.576(3) (Lexis 2003). Under the disability system the years-of-service multiplier includes not only the employee's actual years of service but also the number of years it would have taken the employee to become eligible for normal retirement (subject to a cap equal to the number of actual years served). See § 16.582(5)(a). In other words employees in the normal retirement system are compensated based solely on their actual years of service; but employees in the disability retirement system get a bonus, which accounts for the *2373 number of years the employee would have worked had he or she remained healthy until becoming eligible to receive normal retirement benefits. Whether intended or not, the result of these divergent benefits formulae is a system that, in some cases, compensates otherwise similarly situated individuals differently on the basis of age. Consider two covered workers, one 45 and one 55, both with five years of service with the Commonwealth and an annual salary of $60,000. If we assume both become disabled in the same accident, the 45-year-old will be entitled to receive $1,250 in monthly benefits; the 55-year-old will receive $625, just half as much. The benefit disparity results from the Commonwealth's decision, under the disability retirement formula, to credit the 45-year-old with 5 years of unworked service (thereby increasing the appliable years-service-multipler to 10 years), while the 55-year-old's benefits are based only on actual years of service (5 years). In that instance age is the only factor that accounts for the disparate treatment. True, age is not a factor that reduces benefits in every case. If a worker has accumulated 20 years of service with the Commonwealth before he or she becomes disabled, age plays no role in the benefits calculation. But there is no question that, in many cases, a disabled worker over the age of 55 who has accumulated fewer than 20 years of service receives a lower monthly stipend than otherwise similarly situated workers who are under 55. The Court concludes this result is something other than discrimination on the basis of age only by ignoring the statute and our past opinions. II It is difficult to find a clear rule of law in the list of policy arguments the Court makes to justify its holding. The difficulty is compounded by the Court's own analysis. The Court concedes that, in this case, Kentucky's plan "placed an older worker at a disadvantage," ante, at 2369; yet it proceeds to hold that the Commonwealth's disparate treatment of its workers was not "`actually motivated' by age," ante, at 2369. The Court's apparent rationale is that, even when it is evident that a benefits plan discriminates on its face on the basis of age, an ADEA plaintiff still must provide additional evidence that the employer acted with an "underlying motive," ante, at 2368-2369, to treat older workers less favorably than younger workers. The Court finds no support in the text of the statute. In the wake of Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 109 S. Ct. 2854, 106 L. Ed. 2d 134 (1989), where the Court held that bona fide employee benefit plans were exempt from the coverage of the ADEA, Congress amended the Act to provide that an employee benefit plan that discriminates on the basis of age is unlawful, except when the employer establishes entitlement to one of the affirmative defenses Congress has provided. See Older Workers Benefit Protection Act (OWBPA), 104 Stat. 978, codified at 29 U.S.C. § 623(f). As a result of the OWBPA, an employer cannot operate an employee benefit plan in a manner that "discriminate[s] against any individual . . . because of such individual's age," § 623(a), except when the plan is a "voluntary early retirement incentive plan" or when "the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker," §§ 623(f)(2)(B)(i)-(ii); see generally B. Lindemann & D. Kadue, Age Discrimination in Employment Law 175 (2003). Under any common understanding of the statute's terms a disability plan that pays older *2374 workers less than younger workers on the basis of age "discriminate[s] . . . because of . . . age." That is how the agency that administers the statute, the EEOC, understands it. See 2 EEOC Compliance Manual § 3, p. 627:0004 (2001) ("[B]enefits will not be equal where a plan reduces or eliminates benefits based on a criterion that is explicitly defined (in whole or in part) by age"). And the employer here has not shown that any of the affirmative defenses or exemptions to the Act applies. That should be the end of the matter; the employer is liable unless it can make such a showing. The Court's holding stems, it asserts, from a statement in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993), that an employment practice discriminates only if it is "`actually motivated'" by the protected trait. Ante, at 2366 (quoting Hazen Paper, 507 U.S., at 610, 113 S. Ct. 1701; emphasis deleted). If this phrase had been used without qualification, the Court's interpretation of it might have been justified. If one reads the relevant passage in full (with particular emphasis on the second sentence), however, Hazen Paper makes quite clear that no additional proof of motive is required in an ADEA case once the employment policy at issue is deemed discriminatory on its face. The Court said this: "In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision. See, e.g., United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711[, 103 S. Ct. 1478, 75 L. Ed. 2d 403] (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256[, 101 S. Ct. 1089, 67 L. Ed. 2d 207] (1981); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576-578[, 98 S. Ct. 2943, 57 L. Ed. 2d 957] (1978). The employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait. See, e.g., [Trans World Airlines, Inc. v.] Thurston, [469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985)]; Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 704-718[, 98 S. Ct. 1370, 55 L. Ed. 2d 657] (1978). Or the employer may have been motivated by the protected trait on an ad hoc, informal basis. See, e.g., Anderson v. Bessemer City, 470 U.S. 564[, 105 S. Ct. 1504, 84 L. Ed. 2d 518] (1985); Teamsters [v. United States, 431 U.S. 324, 334-343, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977)]. Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Ibid. In context the paragraph identifies a decision made in reliance on a "facially discriminatory policy requiring adverse treatment of employees with [a protected] trait" as a type of employment action that is "actually motivated" by that trait. By interpreting Hazen Paper to say that a formal, facial, explicit, mandated, age-based differential does not suffice to establish a disparate-treatment violation (subject to statutory defenses and exemptions), it misconstrues the precedent upon which its entire theory of this case is built. The Court was right in Hazen Paper and is wrong here. At a minimum the Court should not cite Hazen Paper to support what it now holds. Its conclusion that no disparate-treatment violation has been established here conflicts with the longstanding rule in ADEA cases. The rule—confirmed by the quoted text in Hazen Paper—is that once the plaintiff establishes that a policy discriminates on its face, no additional proof of a *2375 less-than-benign motive for the challenged employment action is required. For if the plan discriminates on its face, it is obvious that decisions made pursuant to the plan are "actually motivated" by age. The EEOC (or the employee) must prevail unless the employer can justify its action under one of the enumerated statutory defenses or exemptions. Two cases cited in Hazen Paper as examples of "formal, facially discriminatory polic[ies]," stand for this proposition. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985); Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978). In Thurston, the Court considered whether Trans World Airlines' transfer policy for older pilots violated the ADEA. The policy allowed pilots to continue working for the airline past the mandatory retirement age of 60 if they transferred to the position of flight engineer. 469 U.S., at 115-116, 105 S. Ct. 613. But the 60-year-old pilot had to bid for the position. Under the bid procedures a pilot who became ineligible to remain at the controls on account of a disability (or even outright incompetence) had priority over a pilot forced out due to age. Id., at 116-117, 105 S. Ct. 613. The Court held the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which is used to determine whether there was a discriminatory motive at play, had no application because the policy was "discriminatory on its face." 469 U.S., at 121, 105 S. Ct. 613. Manhart, a Title VII case, involved a municipal employees' retirement plan that forced female employees to make larger contributions than their male counterparts. The Court noted that even if there were no evidence that the policy had a discriminatory "effect," "that evidence does not defeat the claim that the practice, on its face, discriminated against every individual woman employed by the Department." 435 U.S., at 716, 98 S. Ct. 1370. Just as the majority misunderstands Hazen Paper's reference to employment practices that are "actually motivated" by age, so too does it overstate what the Hazen Paper Court meant when it observed that pension status and age are "analytically distinct." 507 U.S., at 611, 113 S. Ct. 1701. The Court now reads this language as creating a virtual safe harbor for policies that discriminate on the basis of pension status, even when pension status is tied directly to age and then linked to another type of benefit program. The Hazen Paper Court did not allow, or support, this result. In Hazen Paper pension status and age were "analytically distinct" because the employee's eligibility to receive a pension formally had nothing to do with age; pension status was tied solely to years of service. The Court recognized that age and pension status were correlated (because older workers were more likely to be pension eligible); but the Court found the plan to be facially neutral with regard to age precisely because age and pension status were not expressly linked under the terms of the plan. See id., at 613, 113 S. Ct. 1701 (noting that "we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service"). In order to prove disparate-treatment liability the Hazen Paper Court held that the plaintiff needed to provide additional evidence that his termination in fact was motivated by age. Id., at 613-614, 113 S. Ct. 1701. The saving feature that was controlling in Hazen Paper is absent here. This case is the opposite of Hazen Paper. Here the age distinction is active and present, not superseded and absent. Age is a determining *2376 factor of pension eligibility for all workers over the age of 55 who have over 5 (but less than 20) years of service; and pension status, in turn, is used to determine eligibility for disability benefits. For these employees, pension status and age are not "analytically distinct" in any meaningful sense; they merge into one category. When it treats these employees differently on the basis of pension eligibility, Kentucky facially discriminates on the basis of age. Were this not the case, there would be no facial age discrimination if an employer divided his employees into two teams based upon age—putting all workers over the age of 65 on "Team A" and all other workers on "Team B"—and then paid Team B members twice the salary of their Team A counterparts, not on the basis of age (the employer would declare) but of team designation. Neither Hazen Paper nor the plain text of the ADEA can be read to permit this result. The closest the Court comes to reconciling its holding with the actual text of the statute is its citation to the Act's exemption allowing employers to condition pension eligibility on age. Ante, at 2367. Of course, the fact that it invokes an exemption is a concession by the Court that the Act otherwise would condemn the age-based classification Kentucky's disability plan makes. But the exemption provides no support for the Court's holding in any event. Its coverage is limited to "employee pension benefit plan[s] [that] provid[e] for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits." See 29 U.S.C.A. § 623(l)(1)(A)(i) (Supp.2007). There is no farther reaching exemption for subsequent employment decisions based upon pension eligibility. And to the extent the Court finds such a loophole to be implicit in the text of the statute, a disability benefits program of the sort at issue here is not the only type of employment policy that fits through it. If the ADEA allows an employer to tie disability benefits to an age-based pension status designation, that same designation can be used to determine wages, hours, heath care benefits, reimbursements, job assignments, promotions, office space, transportation vouchers, parking privileges, and any other conceivable benefit or condition of employment. III The Court recognizes some of the difficulties with its position and seeks to limit its holding, yet it does so in ways not permitted by statute or our previous employment discrimination cases. The Court notes that age is not the sole determining factor of pension eligibility but is instead just one factor embedded in a set of "complex system-wide rules." Ante, at 2367. There is no suggestion in our prior ADEA cases, however, and certainly none in our related Title VII jurisprudence, that discrimination based on a protected trait is permissible if the protected trait is one among many variables. This is quite evident when the protected trait is necessarily a controlling, outcome-determinative factor in calculating employee benefits. In Manhart, for instance, sex was not the only factor determining how much an employee was required to contribute to the pension plan on a monthly basis; the employee's salary, age, and length of service were also variables in the equation. 435 U.S., at 705, 98 S. Ct. 1370; Brief for Petitioners in Los Angeles Dept. of Water and Power v. Manhart, O.T.1977, No. 76-1810, p. 23. And even though the employer's decision to require higher contributions from female employees was based upon an actuarially sound premise— that women have longer life expectancies than men—the Court held that the plan *2377 discriminated on its face. 435 U.S., at 711, 98 S. Ct. 1370. Similarly, we have said that the ADEA's substantive prohibitions, which were "derived in haec verba from Title VII," Lorillard v. Pons, 434 U.S. 575, 584, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978), require the employer "to ignore an employee's age (absent a statutory exemption or defense)," Hazen Paper, 507 U.S., at 612, 113 S. Ct. 1701. This statement perhaps has been qualified by the Court's subsequent holding in General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 124 S. Ct. 1236, 157 L. Ed. 2d 1094 (2004), that the ADEA does not forbid employers from discriminating in favor of older workers to the detriment of younger workers. Reasonable minds may have disagreed about the merits of Cline's holding. See id., at 601, 124 S. Ct. 1236 (SCALIA, J., dissenting); see also id., at 602, 124 S. Ct. 1236 (THOMAS, J., dissenting). But Cline does not dictate the path the Court chooses here. For it is one thing to interpret a statute designed to combat age discrimination in a way that benefits older workers to the detriment of younger workers; it is quite another to do what the Court does in this case, which is to interpret the ADEA to allow a discriminatory employment practice that disfavors older workers while favoring younger ones. The Court, moreover, achieved the result in Cline by reading the word "age" to mean "old age"— i.e., by reading "discriminat[ion] . . . because of [an] individual's age," 29 U.S.C. § 623(a), to mean discrimination because of an individual's advanced age. See Cline, supra, at 596, 124 S. Ct. 1236. Here the Court seems to adopt a new definition of the term "discriminate" by holding that there is no discrimination on the basis of a protected trait if the trait is one among several factors that bear upon how an employee is treated. There is no principled way to draw this distinction, and the Court does not attempt to do so. Cf. Manhart, supra, at 710, 98 S. Ct. 1370 ("[T]here is no reason to believe that Congress intended a special definition of discrimination in the context of employee group insurance coverage"). The Court recites what it sees as "several background circumstances [that] eliminate the possibility that pension status, though analytically distinct from age, nonetheless serves as a `proxy for age' in Kentucky's Plan." Ante, at 2367. Among these is a "clear non-age-related rationale," ibid., "to treat a disabled worker as though he had become disabled after, rather than before, he had become eligible for normal retirement benefits," ante, at 2368. There is a difference, however, between a laudable purpose and a rule of law. An otherwise discriminatory employment action cannot be rendered lawful because the employer's motives were benign. In Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991), the employer had a policy barring all female employees, except those who were infertile, from performing jobs that exposed them to lead. The employer said its policy was designed not to reinforce negative gender stereotypes but to protect female employees' unborn children against the risk of birth defects. Id., at 191, 111 S. Ct. 1196. The argument did not prevail. The plan discriminated on its face on the basis of sex, and the employer did not establish a bona fide occupational qualification defense. As a result, the Court held that the restriction violated Title VII. "[T]he absence of a malevolent motive [did] not convert a facially discriminatory plan into a neutral policy with a discriminatory effect." Id., at 199, 111 S. Ct. 1196. Still, even if our cases allowed the motive qualification the Court puts forth to *2378 justify a facial and operative distinction based upon age, the plan at issue here does not survive the Court's own test. We need look no further than the Commonwealth's own brief for evidence that its motives are contrary to the ADEA. In its brief the Commonwealth refers to the 61-year-old complainant in this case, Charles Lickteig, as follows: "An employee in Mr. Lickteig's position has had an extra 21 years to devote to making money, providing for himself and his family, saving funds for retirement, and accruing years that will increase his retirement benefits. Thus, the 40-year-old employee is likely to need more of a boost." Brief for Petitioners 23. The hypothetical younger worker seems entitled to a boost only if one accepts that the younger worker had more productive years of work left in him at the time of his injury than Lickteig did. As an actuarial matter, this assumption may be sound. It is an impermissible basis for differential treatment under the ADEA, however. As we said in Hazen Paper, the idea that "productivity and competence decline with old age" is the "very essence of age discrimination." 507 U.S., at 610, 113 S. Ct. 1701. By forbidding age discrimination against any "individual," 29 U.S.C. § 623(a), the ADEA forbids employers from using the blunt tool of age to assess an employee's future productivity. Cf. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 409, 105 S. Ct. 2743, 86 L. Ed. 2d 321 (1985) (noting the Labor Department's findings that "the process of psychological and physiological degeneration caused by aging varies with each individual"). Whether this is good public policy in all instances might be debatable. Until Congress sees fit to change the language of the statute, however, there is no principled basis for upholding Kentucky's disability benefits formula. * * * As explained in this dissent, Kentucky's disability retirement plan violates the ADEA, an Act intended to promote the interests of older Americans. Yet it is no small irony that it does so, at least in part, because the Commonwealth's normal retirement plan treats older workers in a particularly generous fashion. Kentucky allows its employees to retire at the age of 55 if they have accumulated only five years of service. But for this provision, which links age and years of service in a way that benefits older workers, pension eligibility would be a function solely of tenure, not age. Accordingly, this case would be more like Hazen Paper, and the EEOC's case would be much weaker. Similarly, as the Court notes, ante, at 2369, Kentucky could avoid any problems by not imputing unworked years of service to any disabled workers, old and young alike. Neither change to the plan would result in more generous treatment for older workers. The only difference would be that, under the first example, older workers would lose the option of early retirement, and, under the second, younger workers would see their benefits cut. These are not the only possible remedies—the Commonwealth could impute unworked years of service to all employees forced into retirement on account of a disability regardless of age. The Court's desire to avoid construing the ADEA in a way that encourages the Commonwealth to eliminate its early retirement program or to reduce benefits to the policemen and firefighters who are covered under the disability plan is understandable. But, under our precedents, "`[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all.'" Thurston, 469 U.S., at *2379 121, 105 S. Ct. 613 (quoting Hishon v. King & Spalding, 467 U.S. 69, 75, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984)). If Kentucky's facially discriminatory plan is good public policy, the answer is not for this Court to ignore its precedents and the plain text of the statute. For these reasons, in my view, the judgment of the Court of Appeals should be affirmed and the case remanded for a determination whether the State can assert a cost-justification defense

The Court today ignores established rules for interpreting and enforcing one of the most important statutes Congress has enacted to protect the Nation's work force from age discrimination, the Age Discrimination in Employment Act of 1967 (ADEA or Act), as amended, et seq. That Act prohibits employment actions that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 623(a)(1). In recent years employers and employees alike have been advised by this Court, by most Courts of Appeals, and by the agency charged with enforcing the Act, the Equal Employment Opportunity Commission (EEOC), that the most straightforward reading of the statute is the correct one: When an employer makes age a factor in an employee benefit plan in a formal, facial, deliberate, and explicit manner, to the detriment of older employees, this is a violation of the Act. Disparate treatment on the basis of age is prohibited unless some exemption or defense provided in the Act applies. The Court today undercuts this basic framework. In doing so it puts the Act and its enforcement on a wrong course. The decision of the en banc panel of the Court of Appeals for the Sixth Circuit, which the Court reverses, brought that Circuit's case law into line with that of its sister Circuits. See ; see also, e.g., ; ; ; ; By embracing the approach rejected by the en banc panel and all other Courts of Appeals that have addressed this issue, this Court creates unevenness in administration, unpredictability in litigation, and uncertainty as to employee rights once thought well settled. These consequences, and the Court's errors in interpreting the statute and our cases, require this respectful dissent. Even were the Court correct that Kentucky's facially discriminatory disability benefits plan can be justified by a proper motive, the employer's own submission to us reveals that the plan's discriminatory classification rests upon a stereotypical assumption that itself violates the Act and the Court's own analytical framework. As a threshold matter, all should concede that the paradigm offered to justify the statute is a powerful one: The young police officer or firefighter with a family is disabled in the heroic performance of his or her duty. Disability payments are increased to account for unworked years of service. What the Court overlooks, however, is that a 61-year-old officer or firefighter who is disabled in the same heroic action receives, in many instances, a lower payment and for one reason alone: By explicit command of Kentucky's disability plan age is an express disadvantage in calculating the disability payment. This is a straightforward act of discrimination on the basis of age. Though the Commonwealth is entitled by the law, in some instances, to defend an age-based differential as cost justified, 29 U.S.C. 623(f)(2)(B)(ii), that has yet to be established here. What an employer cannot do, and what the Court ought not to do, is to pretend that this explicit discrimination based on age is somehow consistent with the broad statutory and regulatory prohibition against disparate treatment based on age. I The following appears to be common ground for both sides of the dispute: Kentucky operates dual retirement systems for employees in hazardous occupations. An employee is eligible for normal retirement if he or she has accumulated 20 years of service with the Commonwealth, or is over age 55 and has accumulated at least 5 years of service. If the employee can no longer work as a result of a disability, however, he or she is entitled to receive disability retirement. Employees who are eligible for normal retirement benefits are ineligible for disability retirement. See Ky.Rev.Stat. Ann. 16.576, 16.577(2) (Lexis 2003), 61.592(4) (Lexis Cum.Supp. 2003). The distinction between normal and disability retirement is not just a difference of nomenclature. Under the normal retirement system benefits are calculated by multiplying a percentage of the employee's pay at retirement by years of service. See 16.576(3) (Lexis 2003). Under the disability system the years-of-service multiplier includes not only the employee's actual years of service but also the number of years it would have taken the employee to become eligible for normal retirement (subject to a cap equal to the number of actual years served). See 16.582(5)(a). In other words employees in the normal retirement system are compensated based solely on their actual years of service; but employees in the disability retirement system get a bonus, which accounts for the *2373 number of years the employee would have worked had he or she remained healthy until becoming eligible to receive normal retirement benefits. Whether intended or not, the result of these divergent benefits formulae is a system that, in some cases, compensates otherwise similarly situated individuals differently on the basis of age. Consider two covered workers, one 45 and one 55, both with five years of service with the Commonwealth and an annual salary of $60,000. If we assume both become disabled in the same accident, the 45-year-old will be entitled to receive $1,250 in monthly benefits; the 55-year-old will receive $625, just half as much. The benefit disparity results from the Commonwealth's decision, under the disability retirement formula, to credit the 45-year-old with 5 years of unworked service (thereby increasing the appliable years-service-multipler to 10 years), while the 55-year-old's benefits are based only on actual years of service (5 years). In that instance age is the only factor that accounts for the disparate treatment. True, age is not a factor that reduces benefits in every case. If a worker has accumulated 20 years of service with the Commonwealth before he or she becomes disabled, age plays no role in the benefits calculation. But there is no question that, in many cases, a disabled worker over the age of 55 who has accumulated fewer than 20 years of service receives a lower monthly stipend than otherwise similarly situated workers who are under 55. The Court concludes this result is something other than discrimination on the basis of age only by ignoring the statute and our past opinions. II It is difficult to find a clear rule of law in the list of policy arguments the Court makes to justify its holding. The difficulty is compounded by the Court's own analysis. The Court concedes that, in this case, Kentucky's plan "placed an older worker at a disadvantage," ante, at 2369; yet it proceeds to hold that the Commonwealth's disparate treatment of its workers was not "`actually motivated' by age," ante, at 2369. The Court's apparent rationale is that, even when it is evident that a benefits plan discriminates on its face on the basis of age, an ADEA plaintiff still must provide additional evidence that the employer acted with an "underlying motive," ante, at 2368-2369, to treat older workers less favorably than younger workers. The Court finds no support in the text of the statute. In the wake of Public Employees Retirement System of where the Court held that bona fide employee benefit plans were exempt from the coverage of the ADEA, Congress amended the Act to provide that an employee benefit plan that discriminates on the basis of age is unlawful, except when the employer establishes entitlement to one of the affirmative defenses Congress has provided. See Older Workers Benefit Protection Act (OWBPA), codified at 29 U.S.C. 623(f). As a result of the OWBPA, an employer cannot operate an employee benefit plan in a manner that "discriminate[s against any individual because of such individual's age," 623(a), except when the plan is a "voluntary early retirement incentive plan" or when "the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker," 623(f)(2)(B)(i)-(ii); see generally B. Lindemann & D. Kadue, Age Discrimination in Employment Law 1 (2003). Under any common understanding of the statute's terms a disability plan that pays older *2374 workers less than younger workers on the basis of age "discriminate[s because of age." That is how the agency that administers the statute, the EEOC, understands it. See 2 EEOC Compliance Manual 3, p. 627:0004 (2001) ("[Benefits will not be equal where a plan reduces or eliminates benefits based on a criterion that is explicitly defined (in whole or in part) by age"). And the employer here has not shown that any of the affirmative defenses or exemptions to the Act applies. That should be the end of the matter; the employer is liable unless it can make such a showing. The Court's holding stems, it asserts, from a statement in Hazen that an employment practice discriminates only if it is "`actually motivated'" by the protected trait. Ante, at 2366 (quoting Hazen ; emphasis deleted). If this phrase had been used without qualification, the Court's interpretation of it might have been justified. If one reads the relevant passage in full (with particular emphasis on the second sentence), however, Hazen makes quite clear that no additional proof of motive is required in an ADEA case once the employment policy at issue is deemed discriminatory on its The Court said this: "In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision. See, e.g., United States Postal Service Bd. of ; Texas Dept. of Community [, ; Furnco Constr. [, The employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait. See, e.g., [Trans World Airlines, ; Los Angeles Dept. of Water and [, Or the employer may have been motivated by the protected trait on an ad hoc, informal basis. See, e.g., [, ; Teamsters [v. United States, Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." In context the paragraph identifies a decision made in reliance on a "facially discriminatory policy requiring adverse treatment of employees with [a protected trait" as a type of employment action that is "actually motivated" by that trait. By interpreting Hazen to say that a formal, facial, explicit, mandated, age-based differential does not suffice to establish a disparate-treatment violation (subject to statutory defenses and exemptions), it misconstrues the precedent upon which its entire theory of this case is built. The Court was right in Hazen and is wrong here. At a minimum the Court should not cite Hazen to support what it now holds. Its conclusion that no disparate-treatment violation has been established here conflicts with the longstanding rule in ADEA cases. The rule—confirmed by the quoted text in Hazen —is that once the plaintiff establishes that a policy discriminates on its face, no additional proof of a *23 less-than-benign motive for the challenged employment action is required. For if the plan discriminates on its face, it is obvious that decisions made pursuant to the plan are "actually motivated" by age. The EEOC (or the employee) must prevail unless the employer can justify its action under one of the enumerated statutory defenses or exemptions. Two cases cited in Hazen as examples of "formal, facially discriminatory polic[ies," stand for this proposition. See Trans World Airlines, ; Los Angeles Dept. of Water and In Thurston, the Court considered whether Trans World Airlines' transfer policy for older pilots violated the ADEA. The policy allowed pilots to continue working for the airline past the mandatory retirement age of 60 if they transferred to the position of flight -116, But the 60-year-old pilot had to bid for the position. Under the bid procedures a pilot who became ineligible to remain at the controls on account of a disability (or even outright incompetence) had priority over a pilot forced out due to age. which is used to determine whether there was a discriminatory motive at play, had no application because the policy was "discriminatory on its " Manhart, a Title VII case, involved a municipal employees' retirement plan that forced female employees to make larger contributions than their male counterparts. The Court noted that even if there were no evidence that the policy had a discriminatory "effect," "that evidence does not defeat the claim that the practice, on its face, discriminated against every individual woman employed by the Department." Just as the majority misunderstands Hazen 's reference to employment practices that are "actually motivated" by age, so too does it overstate what the Hazen Court meant when it observed that pension status and age are "analytically distinct." The Court now reads this language as creating a virtual safe harbor for policies that discriminate on the basis of pension status, even when pension status is tied directly to age and then linked to another type of benefit program. The Hazen Court did not allow, or support, this result. In Hazen pension status and age were "analytically distinct" because the employee's eligibility to receive a pension formally had nothing to do with age; pension status was tied solely to years of service. The Court recognized that age and pension status were correlated (because older workers were more likely to be pension eligible); but the Court found the plan to be facially neutral with regard to age precisely because age and pension status were not expressly linked under the terms of the plan. See (noting that "we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service"). In order to prove disparate-treatment liability the Hazen Court held that the plaintiff needed to provide additional evidence that his termination in fact was motivated by age. -614, The saving feature that was controlling in Hazen is absent here. This case is the opposite of Hazen Here the age distinction is active and present, not superseded and absent. Age is a determining *2376 factor of pension eligibility for all workers over the age of 55 who have over 5 (but less than 20) years of service; and pension status, in turn, is used to determine eligibility for disability benefits. For these employees, pension status and age are not "analytically distinct" in any meaningful sense; they merge into one category. When it treats these employees differently on the basis of pension eligibility, Kentucky facially discriminates on the basis of age. Were this not the case, there would be no facial age discrimination if an employer divided his employees into two teams based upon age—putting all workers over the age of 65 on "Team A" and all other workers on "Team B"—and then paid Team B members twice the salary of their Team A counterparts, not on the basis of age (the employer would declare) but of team designation. Neither Hazen nor the plain text of the ADEA can be read to permit this result. The closest the Court comes to reconciling its holding with the actual text of the statute is its citation to the Act's exemption allowing employers to condition pension eligibility on age. Ante, at 2367. Of course, the fact that it invokes an exemption is a concession by the Court that the Act otherwise would condemn the age-based classification Kentucky's disability plan makes. But the exemption provides no support for the Court's holding in any event. Its coverage is limited to "employee pension benefit plan[s [that provid[e for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits." See 29 U.S.C.A. 623(l)(1)(A)(i) (Supp.2007). There is no farther reaching exemption for subsequent employment decisions based upon pension eligibility. And to the extent the Court finds such a loophole to be implicit in the text of the statute, a disability benefits program of the sort at issue here is not the only type of employment policy that fits through it. If the ADEA allows an employer to tie disability benefits to an age-based pension status designation, that same designation can be used to determine wages, hours, heath care benefits, reimbursements, job assignments, promotions, office space, transportation vouchers, parking privileges, and any other conceivable benefit or condition of employment. III The Court recognizes some of the difficulties with its position and seeks to limit its holding, yet it does so in ways not permitted by statute or our previous employment discrimination cases. The Court notes that age is not the sole determining factor of pension eligibility but is instead just one factor embedded in a set of "complex system-wide rules." Ante, at 2367. There is no suggestion in our prior ADEA cases, however, and certainly none in our related Title VII jurisprudence, that discrimination based on a protected trait is permissible if the protected trait is one among many variables. This is quite evident when the protected trait is necessarily a controlling, outcome-determinative factor in calculating employee benefits. In Manhart, for instance, sex was not the only factor determining how much an employee was required to contribute to the pension plan on a monthly basis; the employee's salary, age, and length of service were also variables in the equation. ; Brief for Petitioners in Los Angeles Dept. of Water and O.T., No. 76-1810, p. 23. And even though the employer's decision to require higher contributions from female employees was based upon an actuarially sound premise— that women have longer life expectancies than men—the Court held that the plan *2377 discriminated on its Similarly, we have said that the ADEA's substantive prohibitions, which were "derived in haec verba from Title VII," require the employer "to ignore an employee's age (absent a statutory exemption or defense)," Hazen that the ADEA does not forbid employers from discriminating in favor of older workers to the detriment of younger workers. Reasonable minds may have disagreed about the merits of 's holding. See (SCALIA, J., dissenting); see also (THOMAS, J., dissenting). But does not dictate the path the Court chooses here. For it is one thing to interpret a statute designed to combat age discrimination in a way that benefits older workers to the detriment of younger workers; it is quite another to do what the Court does in this case, which is to interpret the ADEA to allow a discriminatory employment practice that disfavors older workers while favoring younger ones. The Court, moreover, achieved the result in by reading the word "age" to mean "old age"— i.e., by reading "discriminat[ion because of [an individual's age," 29 U.S.C. 623(a), to mean discrimination because of an individual's advanced age. See Here the Court seems to adopt a new definition of the term "discriminate" by holding that there is no discrimination on the basis of a protected trait if the trait is one among several factors that bear upon how an employee is treated. There is no principled way to draw this distinction, and the Court does not attempt to do so. Cf. Manhart, ("[There is no reason to believe that Congress intended a special definition of discrimination in the context of employee group insurance coverage"). The Court recites what it sees as "several background circumstances [that eliminate the possibility that pension status, though analytically distinct from age, nonetheless serves as a `proxy for age' in Kentucky's Plan." Ante, at 2367. Among these is a "clear non-age-related rationale," ib "to treat a disabled worker as though he had become disabled after, rather than before, he had become eligible for normal retirement benefits," ante, at 2368. There is a difference, however, between a laudable purpose and a rule of law. An otherwise discriminatory employment action cannot be rendered lawful because the employer's motives were benign. In Automobile the employer had a policy barring all female employees, except those who were infertile, from performing jobs that exposed them to lead. The employer said its policy was designed not to reinforce negative gender stereotypes but to protect female employees' unborn children against the risk of birth defects. The argument did not prevail. The plan discriminated on its face on the basis of sex, and the employer did not establish a bona fide occupational qualification defense. As a result, the Court held that the restriction violated Title VII. "[The absence of a malevolent motive [did not convert a facially discriminatory plan into a neutral policy with a discriminatory effect." Still, even if our cases allowed the motive qualification the Court puts forth to *2378 justify a facial and operative distinction based upon age, the plan at issue here does not survive the Court's own test. We need look no further than the Commonwealth's own brief for evidence that its motives are contrary to the ADEA. In its brief the Commonwealth refers to the 61-year-old complainant in this case, Charles Lickteig, as follows: "An employee in Mr. Lickteig's position has had an extra 21 years to devote to making money, providing for himself and his family, saving funds for retirement, and accruing years that will increase his retirement benefits. Thus, the 40-year-old employee is likely to need more of a boost." Brief for Petitioners 23. The hypothetical younger worker seems entitled to a boost only if one accepts that the younger worker had more productive years of work left in him at the time of his injury than Lickteig did. As an actuarial matter, this assumption may be sound. It is an impermissible basis for differential treatment under the ADEA, however. As we said in Hazen the idea that "productivity and competence decline with old age" is the "very essence of age discrimination." By forbidding age discrimination against any "individual," 29 U.S.C. 623(a), the ADEA forbids employers from using the blunt tool of age to assess an employee's future productivity. Cf. Western Air Lines, Whether this is good public policy in all instances might be debatable. Until Congress sees fit to change the language of the statute, however, there is no principled basis for upholding Kentucky's disability benefits formula. * * * As explained in this dissent, Kentucky's disability retirement plan violates the ADEA, an Act intended to promote the interests of older Americans. Yet it is no small irony that it does so, at least in part, because the Commonwealth's normal retirement plan treats older workers in a particularly generous fashion. Kentucky allows its employees to retire at the age of 55 if they have accumulated only five years of service. But for this provision, which links age and years of service in a way that benefits older workers, pension eligibility would be a function solely of tenure, not age. Accordingly, this case would be more like Hazen and the EEOC's case would be much weaker. Similarly, as the Court notes, ante, at 2369, Kentucky could avoid any problems by not imputing unworked years of service to any disabled workers, old and young alike. Neither change to the plan would result in more generous treatment for older workers. The only difference would be that, under the first example, older workers would lose the option of early retirement, and, under the second, younger workers would see their benefits cut. These are not the only possible remedies—the Commonwealth could impute unworked years of service to all employees forced into retirement on account of a disability regardless of age. The Court's desire to avoid construing the ADEA in a way that encourages the Commonwealth to eliminate its early retirement program or to reduce benefits to the policemen and firefighters who are covered under the disability plan is understandable. But, under our precedents, "`[a benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free not to provide the benefit at all.'" Thurston, 469 U.S., at *2379 121, ). If Kentucky's facially discriminatory plan is good public policy, the answer is not for this Court to ignore its precedents and the plain text of the statute. For these reasons, in my view, the judgment of the Court of Appeals should be affirmed and the case remanded for a determination whether the State can assert a cost-justification defense

Justice Stevens

majority

United States v. Resendiz-Ponce

2007-01-09

https://www.courtlistener.com/opinion/145768/united-states-v-resendiz-ponce/

https://www.courtlistener.com/api/rest/v3/clusters/145768/

2006-007

A jury convicted respondent Juan Resendiz-Ponce, a Mexican citizen, of illegally attempting to reenter the United States. Because the indictment failed to allege a specific overt act that he committed in seeking reentry, the Court of Appeals set aside his conviction and remanded for dismissal of the indictment. We granted the Government's petition for certiorari to answer the question whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. 547 U.S. 1069, 126 S. Ct. 1776, 164 L. Ed. 2d 515 (2006). Although the Government expressly declined to "seek review of the court of appeals' threshold holdings that the commission of an overt act was an element of the offense of attempted unlawful reentry and that the indictment failed to allege that element," Pet. for Cert. 9, n. 3, "`[i]t is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case,'" Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring) (quoting Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482 (1905)). For that reason, after oral argument we ordered the parties to file supplemental briefs directed to the question whether respondent's *786 indictment was in fact defective. We conclude that it was not and therefore reverse without reaching the harmless-error issue. I Respondent was deported twice, once in 1988 and again in 2002, before his attempted reentry on June 1, 2003. On that day, respondent walked up to a port of entry and displayed a photo identification of his cousin to the border agent. Respondent told the agent that he was a legal resident and that he was traveling to Calexico, California. Because he did not resemble his cousin, respondent was questioned, taken into custody, and ultimately charged with a violation of 8 U.S.C. § 1326(a).[1] The indictment alleged: "On or about June 1, 2003, JUAN RESENDIZ-PONCE, an alien, knowingly and intentionally attempted to enter the United States of America at or near San Luis in the District of Arizona, after having been previously denied admission, excluded, deported, and removed from the United States at or near Nogales, Arizona, on or about October 15, 2002, and not having obtained the express consent of the Secretary of the Department of Homeland Security to reapply for admission. "In violation of Title 8, United States Code, Sections 1326(a) and enhanced by (b)(2)." App. 8. Respondent moved to dismiss the indictment, contending that it "fail[ed] to allege an essential element, an overt act, or to state the essential facts of such overt act." Id., at 12. The District Court denied the motion and, after the jury found him guilty, sentenced respondent to a 63-month term of imprisonment. The Ninth Circuit reversed, reasoning that an indictment's omission of "an essential element of the offense is a fatal flaw not subject to mere harmless error analysis." 425 F.3d 729, 732 (2005). In the court's view, respondent's indictment was fatally flawed because it nowhere alleged "any specific overt act that is a substantial step" toward the completion of the unlawful reentry.[2]Id., at 733. The panel majority explained: *787 "The defendant has a right to be apprised of what overt act the government will try to prove at trial, and he has a right to have a grand jury consider whether to charge that specific overt act. Physical crossing into a government inspection area is but one of a number of other acts that the government might have alleged as a substantial step toward entry into the United States. The indictment might have alleged the tendering a bogus identification card; it might have alleged successful clearance of the inspection area; or it might have alleged lying to an inspection officer with the purpose of being admitted.... A grand jury never passed on a specific overt act, and Resendiz was never given notice of what specific overt act would be proved at trial." Ibid. Judge Reavley concurred, agreeing that Ninth Circuit precedent mandated reversal. If not bound by precedent, however, he would have found the indictment to be "constitutionally sufficient" because it clearly informed respondent "of the precise offense of which he [was] accused so that he [could] prepare his defense and so that a judgment thereon [would] safeguard him from a subsequent prosecution for the same offense." Ibid. II At common law, the attempt to commit a crime was itself a crime if the perpetrator not only intended to commit the completed offense, but also performed "`some open deed tending to the execution of his intent.'" 2 W. LaFave, Substantive Criminal Law § 11.2(a), p. 205 (2d ed.2003) (quoting E. Coke, Third Institute 5 (6th ed. 1680)); see Keedy, Criminal Attempts at Common Law, 102 U. Pa. L. Rev. 464, 468 (1954) (noting that common-law attempt required "that some act must be done towards carrying out the intent"). More recently, the requisite "open deed" has been described as an "overt act" that constitutes a "substantial step" toward completing the offense. 2 LaFave, Substantive Criminal Law § 11.4; see ALI, Model Penal Code § 5.01(1)(c) (1985) (defining "criminal attempt" to include "an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime"); see also Braxton v. United States, 500 U.S. 344, 349, 111 S. Ct. 1854, 114 L. Ed. 2d 385 (1991) ("For Braxton to be guilty of an attempted killing under 18 U.S.C. § 1114, he must have taken a substantial step towards that crime, and must also have had the requisite mens rea"). As was true at common law, the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct. The Government does not disagree with respondent's submission that he cannot be guilty of attempted reentry in violation of 8 U.S.C. § 1326(a) unless he committed an overt act qualifying as a substantial step toward completion of his goal. See Supplemental Brief for United States 7-8. Nor does it dispute that "[a]n indictment must set forth each element of the crime that it charges." Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). It instead contends that the indictment at bar implicitly alleged that respondent engaged in the necessary overt act "simply by alleging that he `attempted to enter the United States.'" Supplemental Brief for United States 8. We agree. Not only does the word "attempt" as used in common parlance connote action rather than mere intent, but more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements. Consequently, an indictment alleging attempted illegal reentry *788 under § 1326(a) need not specifically allege a particular overt act or any other "component par[t]" of the offense. See Hamling v. United States, 418 U.S. 87, 119, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). Just as it was enough for the indictment in Hamling to allege that the defendant mailed "obscene" material in violation of 18 U.S.C. § 1461, see 418 U.S., at 117-118, 94 S. Ct. 2887, it was enough for the indictment in this case to point to the relevant criminal statute and allege that "[o]n or about June 1, 2003," respondent "attempted to enter the United States of America at or near San Luis in the District of Arizona,"[3] App. 8. In Hamling, we identified two constitutional requirements for an indictment: "first, [that it] contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, [that it] enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." 418 U.S., at 117, 94 S. Ct. 2887. In this case, the use of the word "attempt," coupled with the specification of the time and place of respondent's attempted illegal reentry, satisfied both. Indeed, the time-and-place information provided respondent with more adequate notice than would an indictment describing particular overt acts. After all, a given defendant may have approached the border or lied to a border-patrol agent in the course of countless attempts on innumerable occasions. For the same reason, the time-and-date specification in respondent's indictment provided ample protection against the risk of multiple prosecutions for the same crime.[4] Respondent nonetheless maintains that the indictment would have been sufficient only if it had alleged any of three overt acts performed during his attempted reentry: that he walked into an inspection area; that he presented a misleading identification card; or that he lied to the inspector. See Supplemental Brief for Respondent 7. Individually and cumulatively, those acts tend to prove the charged attempt—but none was essential to the finding of guilt in this case. All three acts were rather part of a single course of conduct culminating in the charged "attempt." As Justice Holmes explained in Swift & Co. v. United States, 196 U.S. 375, 396, 25 S. Ct. 276, 49 L. Ed. 518 (1905), "[t]he unity of the plan embraces all the parts."[5] *789 Respondent is of course correct that while an indictment parroting the language of a federal criminal statute is often sufficient, there are crimes that must be charged with greater specificity. See Hamling, 418 U.S., at 117, 94 S. Ct. 2887. A clear example is the statute making it a crime for a witness summoned before a congressional committee to refuse to answer any question "pertinent to the question under inquiry." 2 U.S.C. § 192. As we explained at length in our opinion in Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962), a valid indictment for such a refusal to testify must go beyond the words of § 192 and allege the subject of the congressional hearing in order to determine whether the defendant's refusal was "pertinent." Based on a number of cases arising out of congressional investigations, we recognized that the relevant hearing's subject was frequently uncertain but invariably "central to every prosecution under the statute." Id., at 764, 82 S. Ct. 1038. Both to provide fair notice to defendants and to ensure that any conviction would arise out of the theory of guilt presented to the grand jury, we held that indictments under § 192 must do more than restate the language of the statute. Our reasoning in Russell suggests that there was no infirmity in the present indictment. First, unlike the statute at issue in Russell, guilt under 8 U.S.C. § 1326(a) does not "depen[d] so crucially upon such a specific identification of fact." 369 U.S., at 764, 82 S. Ct. 1038. Second, before explaining the special need for particularity in charges brought under 2 U.S.C. § 192, Justice Stewart noted that, in 1872, Congress had enacted a statute reflecting "the drift of the law away from the rules of technical and formalized pleading which had characterized an earlier era."[6] 369 U.S., at 762, 82 S. Ct. 1038. Other than that statute, which was repealed in 1948, there was no other legislation dealing generally with the subject of indictments until the promulgation of Federal Rule of Criminal Procedure 7(c)(1). As we have said, the Federal Rules "were designed to eliminate technicalities in criminal pleadings and are to be construed to secure simplicity in procedure." United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 98 L. Ed. 92 (1953). While detailed allegations might well have been required under common-law pleading rules, see, e.g., Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55 (1901), they surely are not contemplated by Rule 7(c)(1), which provides that an indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged."[7] Because we are satisfied that respondent's indictment fully complied with that Rule and did not deprive him of any significant *790 protection that the constitutional guarantee of a grand jury was intended to confer, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

A jury convicted respondent Juan Resendiz-Ponce, a Mexican citizen, of illegally attempting to reenter the United States. Because the indictment failed to allege a specific overt act that he committed in seeking reentry, the Court of Appeals set aside his conviction and remanded for dismissal of the indictment. We granted the Government's petition for certiorari to answer the question whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. Although the Government expressly declined to "seek review of the court of appeals' threshold holdings that the commission of an overt act was an element of the offense of attempted unlawful reentry and that the indictment failed to allege that element," Pet. for Cert. 9, n. 3, "`[i]t is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case,'" ). For that reason, after oral argument we ordered the parties to file supplemental briefs directed to the question whether respondent's *786 indictment was in fact defective. We conclude that it was not and therefore reverse without reaching the harmless-error issue. I Respondent was deported twice, once in 1988 and again in 2002, before his attempted reentry on June 1, 2003. On that day, respondent walked up to a port of entry and displayed a photo identification of his cousin to the border agent. Respondent told the agent that he was a legal resident and that he was traveling to Calexico, California. Because he did not resemble his cousin, respondent was questioned, taken into custody, and ultimately charged with a violation of (a).[1] The indictment alleged: "On or about June 1, 2003, JUAN RESENDIZ-PONCE, an alien, knowingly and intentionally attempted to enter the United States of America at or near San Luis in the District of Arizona, after having been previously denied admission, excluded, deported, and removed from the United States at or near Nogales, Arizona, on or about October 15, 2002, and not having obtained the express consent of the Secretary of the Department of Homeland Security to reapply for admission. "In violation of Title 8, United States Code, Sections 1326(a) and enhanced by (b)(2)." App. 8. Respondent moved to dismiss the indictment, contending that it "fail[ed] to allege an essential element, an overt act, or to state the essential facts of such overt act." The District Court denied the motion and, after the jury found him guilty, sentenced respondent to a 63-month term of imprisonment. The Ninth Circuit reversed, reasoning that an indictment's omission of "an essential element of the offense is a fatal flaw not subject to mere harmless error analysis." In the court's view, respondent's indictment was fatally flawed because it nowhere alleged "any specific overt act that is a substantial step" toward the completion of the unlawful reentry.[2] at 733. The panel majority explained: *787 "The defendant has a right to be apprised of what overt act the government will try to prove at trial, and he has a right to have a grand jury consider whether to charge that specific overt act. Physical crossing into a government inspection area is but one of a number of other acts that the government might have alleged as a substantial step toward entry into the United States. The indictment might have alleged the tendering a bogus identification card; it might have alleged successful clearance of the inspection area; or it might have alleged lying to an inspection officer with the purpose of being admitted. A grand jury never passed on a specific overt act, and Resendiz was never given notice of what specific overt act would be proved at trial." Judge Reavley concurred, agreeing that Ninth Circuit precedent mandated reversal. If not bound by precedent, however, he would have found the indictment to be "constitutionally sufficient" because it clearly informed respondent "of the precise offense of which he [was] accused so that he [could] prepare his defense and so that a judgment thereon [would] safeguard him from a subsequent prosecution for the same offense." II At common law, the attempt to commit a crime was itself a crime if the perpetrator not only intended to commit the completed offense, but also performed "`some open deed tending to the execution of his intent.'" 2 W. LaFave, Substantive Criminal Law 11.2(a), p. 205 (2d ed.2003) (quoting E. Coke, Third Institute 5 (6th ed. 1680)); see Keedy, Criminal Attempts at Common Law, More recently, the requisite "open deed" has been described as an "overt act" that constitutes a "substantial step" toward completing the offense. 2 LaFave, Substantive Criminal Law 11.4; see ALI, Model Penal Code 5.01(1)(c) (1985) (defining "criminal attempt" to include "an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime"); see also ("For Braxton to be guilty of an attempted killing under 18 U.S.C. 1114, he must have taken a substantial step towards that crime, and must also have had the requisite mens rea"). As was true at common law, the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct. The Government does not disagree with respondent's submission that he cannot be guilty of attempted reentry in violation of (a) unless he committed an overt act qualifying as a substantial step toward completion of his goal. See Supplemental Brief for United States 7-8. Nor does it dispute that "[a]n indictment must set forth each element of the crime that it charges." It instead contends that the indictment at bar implicitly alleged that respondent engaged in the necessary overt act "simply by alleging that he `attempted to enter the United States.'" Supplemental Brief for United States 8. We agree. Not only does the word "attempt" as used in common parlance connote action rather than mere intent, but more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements. Consequently, an indictment alleging attempted illegal reentry *788 under 1326(a) need not specifically allege a particular overt act or any other "component par[t]" of the offense. See Just as it was enough for the indictment in to allege that the defendant mailed "obscene" material in violation of 18 U.S.C. 1461, see -118, it was enough for the indictment in this case to point to the relevant criminal statute and allege that "[o]n or about June 1, 2003," respondent "attempted to enter the United States of America at or near San Luis in the District of Arizona,"[3] App. 8. In we identified two constitutional requirements for an indictment: "first, [that it] contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, [that it] enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." In this case, the use of the word "attempt," coupled with the specification of the time and place of respondent's attempted illegal reentry, satisfied both. Indeed, the time-and-place information provided respondent with more adequate notice than would an indictment describing particular overt acts. After all, a given defendant may have approached the border or lied to a border-patrol agent in the course of countless attempts on innumerable occasions. For the same reason, the time-and-date specification in respondent's indictment provided ample protection against the risk of multiple prosecutions for the same crime.[4] Respondent nonetheless maintains that the indictment would have been sufficient only if it had alleged any of three overt acts performed during his attempted reentry: that he walked into an inspection area; that he presented a misleading identification card; or that he lied to the inspector. See Supplemental Brief for Respondent 7. Individually and cumulatively, those acts tend to prove the charged attempt—but none was essential to the finding of guilt in this case. All three acts were rather part of a single course of conduct culminating in the charged "attempt." As Justice Holmes explained in Swift & "[t]he unity of the plan embraces all the parts."[5] *789 Respondent is of course correct that while an indictment parroting the language of a federal criminal statute is often sufficient, there are crimes that must be charged with greater specificity. See A clear example is the statute making it a crime for a witness summoned before a congressional committee to refuse to answer any question "pertinent to the question under inquiry." 2 U.S.C. 192. As we explained at length in our opinion in a valid indictment for such a refusal to testify must go beyond the words of 192 and allege the subject of the congressional hearing in order to determine whether the defendant's refusal was "pertinent." Based on a number of cases arising out of congressional investigations, we recognized that the relevant hearing's subject was frequently uncertain but invariably "central to every prosecution under the statute." Both to provide fair notice to defendants and to ensure that any conviction would arise out of the theory of guilt presented to the grand jury, we held that indictments under 192 must do more than restate the language of the statute. Our reasoning in Russell suggests that there was no infirmity in the present indictment. First, unlike the statute at issue in Russell, guilt under (a) does not "depen[d] so crucially upon such a specific identification of fact." 369 U.S., Second, before explaining the special need for particularity in charges brought under 2 U.S.C. 192, Justice Stewart noted that, in 1872, Congress had enacted a statute reflecting "the drift of the law away from the rules of technical and formalized pleading which had characterized an earlier era."[6] Other than that statute, which was repealed in 1948, there was no other legislation dealing generally with the subject of indictments until the promulgation of Federal Rule of Criminal Procedure 7(c)(1). As we have said, the Federal Rules "were designed to eliminate technicalities in criminal pleadings and are to be construed to secure simplicity in procedure." United While detailed allegations might well have been required under common-law pleading rules, see, e.g., they surely are not contemplated by Rule 7(c)(1), which provides that an indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged."[7] Because we are satisfied that respondent's indictment fully complied with that Rule and did not deprive him of any significant *790 protection that the constitutional guarantee of a grand jury was intended to confer, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Scalia

dissenting

United States v. Resendiz-Ponce

2007-01-09

https://www.courtlistener.com/opinion/145768/united-states-v-resendiz-ponce/

https://www.courtlistener.com/api/rest/v3/clusters/145768/

2006-007

It is well established that an indictment must allege all the elements of the charged crime. Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998); United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538 (1872). As the Court acknowledges, it is likewise well established that "attempt" contains two substantive elements: the intent to commit the underlying crime, and the undertaking of some action toward commission of that crime. See ante, at 787 (citing 2 W. LaFave, Substantive Criminal Law § 11.2(a), p. 205 (2d ed.2003) (hereinafter LaFave), E. Coke, Third Institute 5 (6th ed. 1680), and Keedy, Criminal Attempts at Common Law, 102 U. Pa. L.Rev. 464, 468 (1954)). See also Braxton v. United States, 500 U.S. 344, 349, 111 S. Ct. 1854, 114 L. Ed. 2d 385 (1991). It should follow, then, that when the Government indicts for attempt to commit a crime, it must allege both that the defendant had the intent to commit the crime, and that he took some action toward its commission. Any rule to the contrary would be an exception to the standard practice. The Court gives two reasons for its special "attempt" exception. First, it says that in "common parlance" the word attempt "connote[s]," and therefore "impli[es]," both the intent and overt-act elements. Ante, at 787. This strikes me as certainly irrelevant, and probably incorrect to boot. It is irrelevant because, as I have just discussed, we have always required the elements of a crime to be explicitly set forth in the indictment, whether or not they are fairly called to mind by the mere name of the crime. Burglary, for example, connotes in common parlance the entry of a building with felonious intent, yet we require those elements to be set forth. Our precedents make clear that the indictment must "fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." United States v. Carll, 105 U.S. 611, 612, 26 L. Ed. 1135 (1881) (emphasis added). And the Court's argument is probably incorrect because I doubt that the common meaning of the word "attempt" conveys with precision what conviction of that crime requires. A reasonable grand juror, relying on nothing but that term, might well believe that it connotes intent plus any minor action toward the commission of the crime, rather than the "`substantial step'" that the Court acknowledges is required, ante, at 787. Besides appealing to "common parlance," the Court relies on the fact that attempt, "as used in the law for centuries... encompasses both the overt act and intent elements." Ante, at 788. Once again, this argument seems to me certainly irrelevant and probably incorrect. Many common-law crimes have retained relatively static elements throughout history, burglary among them; that has never been thought to excuse the specification of those elements in the indictment. And the argument is probably incorrect, because the definition of attempt has not been nearly as consistent as the Court suggests. Nearly a century ago, a leading criminal-law treatise pointed out that "`attempt' is a term peculiarly indefinite" with "no prescribed legal meaning." 1 F. Wharton, Criminal Law § 229, p. 298 (11th ed.1912). Even the modern treatise the Court relies upon, see ante, at 787, explains—in a *791 subsection entitled "The Confusion"—that jurisdictions vary widely in how they define the requisite actus reus. LaFave § 11.4(a), at 218-219. Among the variations are: "`an act toward the commission of some offense"; "an act `in furtherance of" an offense; "`a substantial step toward the commission of the crime'"; "`some appreciable fragment of the crime'"; and the wonderfully opaque "`commencement of the consummation.'" Ibid. (footnote omitted). These are not simply different ways of saying "substantial step." The Model Penal Code definition that the Court invokes, ante, at 787-788, is just that: a model. It does not establish the degree of homogeneity that the Court asserts. The contention that the "federal system" has a "well-settled" definition of attempt, see Supplemental Brief for United States 22, tells us nothing; many terms in federal indictments have only one federal definition, not because that is the universally accepted definition, but because there is only one Federal Government. In this case, the indictment alleged that respondent "knowingly and intentionally attempted to enter the United States of America," App. 8, so that the Court focuses only on whether the indictment needed to allege the second element of attempt, an overt act. If one accepts the Court's opinion, however, the indictment could just as well have omitted the phrase "knowingly and intentionally," since that is understood in "common parlance," and has been an element of attempt "for centuries." Would we say that, in a prosecution for first-degree murder, the element of "malice aforethought" could be omitted from the indictment simply because it is commonly understood, and the law has always required it? Surely not. The sole judicial authority the Court cites for its novel exception to the traditional indictment requirements (other than an unpublished opinion of a District Court, see ante, at 788, n. 3) is Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). The relevant portion of that opinion consists of the following: "The definition of obscenity . . . is not a question of fact, but one of law; the word `obscene,' . . . is not merely a generic or descriptive term, but a legal term of art. The legal definition of obscenity does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him. Since the various component parts of the constitutional definition of obscenity need not be alleged in the indictment in order to establish its sufficiency, the indictment in this case was sufficient to adequately inform petitioners of the charges against them." Id., at 118-119, 94 S. Ct. 2887 (citations omitted). If these sentences established the broad principle the Court asserts, they would apply not only to the elements of attempt, but to the elements of all crimes, effecting a revolution in our jurisprudence regarding the requirements of an indictment. In fact, however, Hamling is easily distinguishable. "Obscenity" is, to be sure, one of the elements of the crime of publishing obscenity. But the "various component parts of the constitutional definition of obscenity" are no more elements of the crime of publishing obscenity than the various component parts of the definition of "building" are elements of the crime of burglary. To be sure, those definitions must be met for conviction; but they need not be set forth in the indictment. If every word contained within the definition of each element of a crime were itself an element of the crime within the meaning of the indictment requirement, there would be no end to the prolixity of indictments. There is *792 no dispute here that "intent" and "substantial step" are elements of the federal crime of attempt, just as obscenity was an element of the crime charged in Hamling. Hamling would be in point if it dispensed with the charging of obscenity in the indictment. The Court finds another point "instructive": "If a defendant indicted only for a completed offense can be convicted of attempt . . . without the indictment ever mentioning an overt act, it would be illogical to dismiss an indictment charging `attempt' because it fails to allege such an act." Ante, at 789, n. 7. I disagree; it seems to me entirely logical. To indict for commission of a completed offense, the prosecutor must persuade the grand jury that the accused's acts and state of mind fulfilled all the elements of the offense. If they did so, and if the offense has a mens rea element (which almost all crimes, including burglary, do), then they unquestionably fulfilled all the elements of an attempt as well—i.e., the accused meant to commit the crime and took the requisite step (no matter how demanding the requirement) in that direction. That is to say, attempt to commit a crime is simply a lesser included offense. A grand-jury finding that the accused committed the crime is necessarily a finding that he attempted to commit the crime, and therefore the attempt need not be separately charged. When, however, the prosecutor seeks only an indictment for attempt, it is not enough to tell the grand jury that it requires a finding of "some, but not all, of the elements of the substantive crime"; he must specify what the elements of attempt consist of. He must do that for the same reason a court must instruct the petit jury on the attempt elements, see 2 E. Devitt, C. Blackmar, & K. O'Malley, Federal Jury Practice and Instructions § 21.03, Notes, p. 4, Notes (4th ed.1990) (collecting cases), even when the indictment has not separately charged attempt: Without such specification, the jury, grand or petit, cannot intelligently find attempt. Finally, the Court suggests that there is something different about attempt because it is a parasitic crime. There is no such crime as bald attempt; it must be attempt to commit some other crime. This is unquestionably true, fully as true as the fact that attempt begins with an "a." But there is no reason why the one, any more than the other, has anything to do with the purposes, and hence the substance, of the indictment requirement. Conspiracy is also, in most cases, a parasitic crime, and no one contends that its elements need not be charged. Despite the clear answer provided by straightforward application of the oft-recited principles of our jurisprudence, I might have been persuaded to recognize an (illogical) exception to those principles if the Government had demonstrated that mere recitation of the word "attempt" in attempt indictments has been the traditional practice. But its effort to do so falls far short; in fact, it has not even undertaken such an effort. The Government has pointed to some cases that allow an indictment simply to use the word "attempt," and many others that invalidate an indictment for failure to allege an overt act. See Supplemental Brief for United States 15-21. It matters not whether more of one sort or the other of these cases arose in state courts or federal courts; the point is that there is no established historical "attempt" exception to the general principles of our jurisprudence. That being so, those principles must prevail. To be clear, I need not decide in this case whether, as the Ninth Circuit held, the Government was required to specify in the indictment which particular overt act it would be relying on at trial. Cf. Russell v. *793 United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962). It suffices to support the judgment, that the Government was required to state not only that Resendiz-Ponce "knowingly and intentionally attempted to enter the United States of America," but also that he "took a substantial step" toward that end. * * * My dissenting view that the indictment was faulty (a point on which we requested supplemental briefing) puts me in the odd position of being the sole Justice who must decide the question on which we granted certiorari: whether a constitutionally deficient indictment is structural error, as the Ninth Circuit held, or rather is amenable to harmless-error analysis. I cannot vote to affirm or to reverse the judgment without resolving that issue. Since the full Court will undoubtedly have to speak to the point on another day (it dodged the bullet today by inviting and deciding a different constitutional issue—albeit, to be fair, a narrower one) there is little use in my setting forth my views in detail. It should come as no surprise, given my opinions in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006), and Neder v. United States, 527 U.S. 1, 30, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (opinion concurring in part and dissenting in part), that I would find the error to be structural. I would therefore affirm the judgment of the Ninth Circuit.

It is well established that an indictment must allege all the elements of the charged crime. ; United As the Court acknowledges, it is likewise well established that "attempt" contains two substantive elements: the intent to commit the underlying crime, and the undertaking of some action toward commission of that crime. See ante, at 787 (citing 2 W. LaFave, Substantive Criminal Law 11.2(a), p. 205 (2d ed.2003) (hereinafter LaFave), E. Coke, Third Institute 5 (6th ed. 1680), and Keedy, Criminal Attempts at Common Law, 102 U. Pa. L.Rev. 464, 468 (1954)). See also It should follow, then, that when the Government indicts for attempt to commit a crime, it must allege both that the defendant had the intent to commit the crime, and that he took some action toward its commission. Any rule to the contrary would be an exception to the standard practice. The Court gives two reasons for its special "attempt" exception. First, it says that in "common parlance" the word attempt "connote[s]," and therefore "impli[es]," both the intent and overt-act elements. Ante, at 787. This strikes me as certainly irrelevant, and probably incorrect to boot. It is irrelevant because, as I have just discussed, we have always required the elements of a crime to be explicitly set forth in the indictment, whether or not they are fairly called to mind by the mere name of the crime. Burglary, for example, connotes in common parlance the entry of a building with felonious intent, yet we require those elements to be set forth. Our precedents make clear that the indictment must "fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." United And the Court's argument is probably incorrect because I doubt that the common meaning of the word "attempt" conveys with precision what conviction of that crime requires. A reasonable grand juror, relying on nothing but that term, might well believe that it connotes intent plus any minor action toward the commission of the crime, rather than the "`substantial step'" that the Court acknowledges is required, ante, at 787. Besides appealing to "common parlance," the Court relies on the fact that attempt, "as used in the law for centuries. encompasses both the overt act and intent elements." Ante, at 788. Once again, this argument seems to me certainly irrelevant and probably incorrect. Many common-law crimes have retained relatively static elements throughout history, burglary among them; that has never been thought to excuse the specification of those elements in the indictment. And the argument is probably incorrect, because the definition of attempt has not been nearly as consistent as the Court suggests. Nearly a century ago, a leading criminal-law treatise pointed out that "`attempt' is a term peculiarly indefinite" with "no prescribed legal meaning." 1 F. Wharton, Criminal Law 229, p. 298 (11th ed.1912). Even the modern treatise the Court relies upon, see ante, at 787, explains—in a *791 subsection entitled "The Confusion"—that jurisdictions vary widely in how they define the requisite actus reus. LaFave 11.4(a), at 218-219. Among the variations are: "`an act toward the commission of some offense"; "an act `in furtherance of" an offense; "`a substantial step toward the commission of the crime'"; "`some appreciable fragment of the crime'"; and the wonderfully opaque "`commencement of the consummation.'" These are not simply different ways of saying "substantial step." The Model Penal Code definition that the Court invokes, ante, at 787-788, is just that: a model. It does not establish the degree of homogeneity that the Court asserts. The contention that the "federal system" has a "well-settled" definition of attempt, see Supplemental Brief for United States 22, tells us nothing; many terms in federal indictments have only one federal definition, not because that is the universally accepted definition, but because there is only one Federal Government. In this case, the indictment alleged that respondent "knowingly and intentionally attempted to enter the United States of America," App. 8, so that the Court focuses only on whether the indictment needed to allege the second element of attempt, an overt act. If one accepts the Court's opinion, however, the indictment could just as well have omitted the phrase "knowingly and intentionally," since that is understood in "common parlance," and has been an element of attempt "for centuries." Would we say that, in a prosecution for first-degree murder, the element of "malice aforethought" could be omitted from the indictment simply because it is commonly understood, and the law has always required it? Surely not. The sole judicial authority the Court cites for its novel exception to the traditional indictment requirements (other than an unpublished opinion of a District Court, see ante, at 788, n. 3) is The relevant portion of that opinion consists of the following: "The definition of obscenity is not a question of fact, but one of law; the word `obscene,' is not merely a generic or descriptive term, but a legal term of art. The legal definition of obscenity does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him. Since the various component parts of the constitutional definition of obscenity need not be alleged in the indictment in order to establish its sufficiency, the indictment in this case was sufficient to adequately inform petitioners of the charges against them." (citations omitted). If these sentences established the broad principle the Court asserts, they would apply not only to the elements of attempt, but to the elements of all crimes, effecting a revolution in our jurisprudence regarding the requirements of an indictment. In fact, however, Hamling is easily distinguishable. "Obscenity" is, to be sure, one of the elements of the crime of publishing obscenity. But the "various component parts of the constitutional definition of obscenity" are no more elements of the crime of publishing obscenity than the various component parts of the definition of "building" are elements of the crime of burglary. To be sure, those definitions must be met for conviction; but they need not be set forth in the indictment. If every word contained within the definition of each element of a crime were itself an element of the crime within the meaning of the indictment requirement, there would be no end to the prolixity of indictments. There is *792 no dispute here that "intent" and "substantial step" are elements of the federal crime of attempt, just as obscenity was an element of the crime charged in Hamling. Hamling would be in point if it dispensed with the charging of obscenity in the indictment. The Court finds another point "instructive": "If a defendant indicted only for a completed offense can be convicted of attempt without the indictment ever mentioning an overt act, it would be illogical to dismiss an indictment charging `attempt' because it fails to allege such an act." Ante, at 789, n. 7. I disagree; it seems to me entirely logical. To indict for commission of a completed offense, the prosecutor must persuade the grand jury that the accused's acts and state of mind fulfilled all the elements of the offense. If they did so, and if the offense has a mens rea element (which almost all crimes, including burglary, do), then they unquestionably fulfilled all the elements of an attempt as well—i.e., the accused meant to commit the crime and took the requisite step (no matter how demanding the requirement) in that direction. That is to say, attempt to commit a crime is simply a lesser included offense. A grand-jury finding that the accused committed the crime is necessarily a finding that he attempted to commit the crime, and therefore the attempt need not be separately charged. When, however, the prosecutor seeks only an indictment for attempt, it is not enough to tell the grand jury that it requires a finding of "some, but not all, of the elements of the substantive crime"; he must specify what the elements of attempt consist of. He must do that for the same reason a court must instruct the petit jury on the attempt elements, see 2 E. Devitt, C. Blackmar, & K. O'Malley, Federal Jury Practice and Instructions 21.03, Notes, p. 4, Notes (4th ed.1990) (collecting cases), even when the indictment has not separately charged attempt: Without such specification, the jury, grand or petit, cannot intelligently find attempt. Finally, the Court suggests that there is something different about attempt because it is a parasitic crime. There is no such crime as bald attempt; it must be attempt to commit some other crime. This is unquestionably true, fully as true as the fact that attempt begins with an "a." But there is no reason why the one, any more than the other, has anything to do with the purposes, and hence the substance, of the indictment requirement. Conspiracy is also, in most cases, a parasitic crime, and no one contends that its elements need not be charged. Despite the clear answer provided by straightforward application of the oft-recited principles of our jurisprudence, I might have been persuaded to recognize an (illogical) exception to those principles if the Government had demonstrated that mere recitation of the word "attempt" in attempt indictments has been the traditional practice. But its effort to do so falls far short; in fact, it has not even undertaken such an effort. The Government has pointed to some cases that allow an indictment simply to use the word "attempt," and many others that invalidate an indictment for failure to allege an overt act. See Supplemental Brief for United States 15-21. It matters not whether more of one sort or the other of these cases arose in state courts or federal courts; the point is that there is no established historical "attempt" exception to the general principles of our jurisprudence. That being so, those principles must prevail. To be clear, I need not decide in this case whether, as the Ninth Circuit held, the Government was required to specify in the indictment which particular overt act it would be relying on at trial. Cf. It suffices to support the judgment, that the Government was required to state not only that Resendiz-Ponce "knowingly and intentionally attempted to enter the United States of America," but also that he "took a substantial step" toward that end. * * * My dissenting view that the indictment was faulty (a point on which we requested supplemental briefing) puts me in the odd position of being the sole Justice who must decide the question on which we granted certiorari: whether a constitutionally deficient indictment is structural error, as the Ninth Circuit held, or rather is amenable to harmless-error analysis. I cannot vote to affirm or to reverse the judgment without resolving that issue. Since the full Court will undoubtedly have to speak to the point on another day (it dodged the bullet today by inviting and deciding a different constitutional issue—albeit, to be fair, a narrower one) there is little use in my setting forth my views in detail. It should come as no surprise, given my opinions in United and that I would find the error to be structural. I would therefore affirm the judgment of the Ninth Circuit.

Justice Breyer

majority

Merck & Co. v. Reynolds

2010-04-27

https://www.courtlistener.com/opinion/145292/merck-co-v-reynolds/

https://www.courtlistener.com/api/rest/v3/clusters/145292/

2009-043

This case concerns the timeliness of a complaint filed in a private securities fraud action. The complaint was timely if filed no more than two years after the plaintiffs “discover[ed] the facts constituting the violation.” 28 U.S. C. §1658(b)(1). Construing this limitations statute for the first time, we hold that a cause of action accrues (1) when the plaintiff did in fact discover, or (2) when a rea sonably diligent plaintiff would have discovered, “the facts constituting the violation”—whichever comes first. We also hold that the “facts constituting the violation” include the fact of scienter, “a mental state embracing intent to deceive, manipulate, or defraud,” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194, n. 12 (1976). Applying this standard, we affirm the Court of Appeals’ determination that the complaint filed here was timely. I The action before us involves a claim by a group of inves tors (the plaintiffs, respondents here) that Merck & Co. and others (the petitioners here, hereinafter Merck) know ingly misrepresented the risks of heart attacks accompany 2 MERCK & CO. v. REYNOLDS Opinion of the Court ing the use of Merck’s pain-killing drug, Vioxx (leading to economic losses when the risks later became apparent). The plaintiffs brought an action for securities fraud under §10(b) of the Securities Exchange Act of 1934. See 48 Stat. 891, as amended, 15 U.S. C. §78j(b); SEC Rule 10b–5, 17 CFR §240.10b–5(b) (2009); Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 341–342 (2005). The applicable statute of limitations provides that a “private right of action” that, like the present action, “involves a claim of fraud, deceit, manipulation, or con trivance in contravention of a regulatory requirement concerning the securities laws . . . may be brought not later than the earlier of— “(1) 2 years after the discovery of the facts constituting the violation; or “(2) 5 years after such violation.” 28 U.S. C. §1658(b). The complaint in this case was filed on November 6, 2003, and no one doubts that it was filed within five years of the alleged violation. Therefore, the critical date for timeliness purposes is November 6, 2001—two years before this complaint was filed. Merck claims that before this date the plaintiffs had (or should have) discovered the “facts constituting the violation.” If so, by the time the plaintiffs filed their complaint, the 2-year statutory period in §1658(b)(1) had run. The plaintiffs reply that they had not, and could not have, discovered by the critical date those “facts,” particularly not the facts related to scienter, and that their complaint was therefore timely. A We first set out the relevant pre-November 2001 facts, as we have gleaned them from the briefs, the record, and the opinions below. 1. 1990’s. In the mid-1990’s Merck developed Vioxx. In 1999 the Food and Drug Administration (FDA) approved it for prescription use. Vioxx suppresses pain by inhibiting Cite as: 559 U. S. ____ (2010) 3 Opinion of the Court the body’s production of an enzyme called COX–2 (cyclooxy- genase-2). COX–2 is associated with pain and inflamma- tion. Unlike some other anti-inflammatory drugs in its class like aspirin, ibuprofen, and naproxen, Vioxx does not inhibit production of a second enzyme called COX–1 (cyclooxygenase-1). COX–1 plays a part in the functioning of the gastrointestinal tract and also in platelet aggregation (associated with blood clots). App. 50–51. 2. March 2000. Merck announced the results of a study, called the “VIGOR” study. Id., at 291–294. The study compared Vioxx with another painkiller, naproxen. The study showed that persons taking Vioxx suffered fewer gastrointestinal side effects (as Merck had hoped). But the study also revealed that approximately 4 out of every 1,000 participants who took Vioxx suffered heart attacks, compared to only 1 per 1,000 participants who took naproxen. Id., at 296, 306; see Bombardier et al., Com- parison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid Arthritis, 343 New England J. Medicine 1520, 1523, 1526–1527 (2000). Merck’s press release acknowledged VIGOR’s adverse cardiovascular data. But Merck said that these data were “consistent with naproxen’s ability to block platelet aggre- gation.” App. 291. Merck noted that, since “Vioxx, like all COX–2 selective medicines, does not block platelet aggre- gation[, it] would not be expected to have similar effects.” Ibid. And Merck added that “safety data from all other completed and ongoing clinical trials . . . showed no indica- tion of a difference in the incidence of thromboembolic events between Vioxx” and either a placebo or comparable drugs. Id., at 293 (emphasis deleted). This theory—that VIGOR’s troubling cardiovascular findings might be due to the absence of a benefit conferred by naproxen rather than due to a harm caused by Vioxx— later became known as the “naproxen hypothesis.” In advancing that hypothesis, Merck acknowledged that the 4 MERCK & CO. v. REYNOLDS Opinion of the Court naproxen benefit “had not been observed previously.” Id., at 291. Journalists and stock market analysts reported all of the above—the positive gastrointestinal results, the troubling cardiovascular finding, the naproxen hypothesis, and the fact that the naproxen hypothesis was unproved. See id., at 355–391, 508–557. 3. February 2001 to August 2001. Public debate about the naproxen hypothesis continued. In February 2001, the FDA’s Arthritis Advisory Committee convened to consider Merck’s request that the Vioxx label be changed to reflect VIGOR’s positive gastrointestinal findings. The VIGOR cardiovascular findings were also discussed. Id., at 392– 395, 558–577. In May 2001, a group of plaintiffs filed a products-liability lawsuit against Merck, claiming that “Merck’s own research” had demonstrated that “users of Vioxx were four times as likely to suffer heart attacks as compared to other less expensive, medications.” Id., at 869. In August 2001, the Journal of the American Medical Association wrote that the available data raised a “cau tionary flag” and strongly urged that “a trial specifically assessing cardiovascular risk” be done. Id., at 331–332; Mukherjee, Nissen, & Topol, Risk of Cardiovascular Events Associated with Selective Cox-2 Inhibitors, 286 JAMA 954 (2001). At about the same time, Bloomberg News quoted a Merck scientist who claimed that Merck had “additional data” that were “very, very reassuring,” and Merck issued a press release stating that it stood “behind the overall and cardiovascular safety profile . . . of Vioxx.” App. 434, 120 (emphasis deleted; internal quota tion marks omitted). 4. September and October 2001. The FDA sent Merck a warning letter released to the public on September 21, 2001. It said that, in respect to cardiovascular risks, Merck’s Vioxx marketing was “false, lacking in fair bal ance, or otherwise misleading.” Id., at 339. At the same time, the FDA acknowledged that the naproxen hypothesis Cite as: 559 U. S. ____ (2010) 5 Opinion of the Court was a “possible explanation” of the VIGOR results. Id., at 340. But it found that Merck’s “promotional campaign selectively present[ed]” that hypothesis without adequately acknowledging “another reasonable explanation,” namely, “that Vioxx may have pro-thrombotic [i.e., adverse cardio vascular] properties.” Ibid. The FDA ordered Merck to send healthcare providers a corrective letter. Id., at 353. After the FDA letter was released, more products liability lawsuits were filed. See id., at 885–956. Merck’s share price fell by 6.6% over several days. See id., at 832. By October 1, the price rebounded. See ibid. On October 9, 2001, the New York Times said that Merck had reexam ined its own data and “found no evidence that Vioxx in creased the risk of heart attacks.” App. 504. It quoted the president of Merck Research Laboratories as positing “ ‘two possible interpretations’ ”: “ ‘Naproxen lowers the heart attack rate, or Vioxx raises it.’ ” Ibid. Stock ana lysts, while reporting the warning letter, also noted that the FDA had not denied that the naproxen hypothesis remained an unproven but possible explanation. See id., at 614, 626, 628. B We next set forth three important events that occurred after the critical date. 1. October 2003. The Wall Street Journal published the results of a Merck-funded Vioxx study conducted at Bos ton’s Brigham and Women’s Hospital. After examining the medical records of more than 50,000 Medicare pa tients, researchers found that those given Vioxx for 30-to 90 days were 37% more likely to have suffered a heart attack than those given either a different painkiller or no painkiller at all. Id., at 164–165. (That is to say, if pa tients given a different painkiller or given no painkiller at all suffered 10 heart attacks, then the same number of patients given Vioxx would suffer 13 or 14 heart attacks.) 6 MERCK & CO. v. REYNOLDS Opinion of the Court Merck defended Vioxx and pointed to the study’s limita tions. Id., at 165–167. 2. September 30, 2004. Merck withdrew Vioxx from the market. It said that a new study had found “an increased risk of confirmed cardiovascular events beginning after 18 months of continuous therapy.” Id., at 182 (internal quo tation marks omitted). A Merck representative publicly described the results as “totally unexpected.” Id., at 186. Merck’s shares fell by 27% the same day. Id., at 185, 856. 3. November 1, 2004. The Wall Street Journal published an article stating that “internal Merck e-mails and mar keting materials as well as interviews with outside scien tists show that the company fought forcefully for years to keep safety concerns from destroying the drug’s commer cial prospects.” Id., at 189–190. The article said that an early e-mail from Merck’s head of research had said that the VIGOR “results showed that the cardiovascular events ‘are clearly there,’ ” that it was “ ‘a shame but . . . a low incidence,’ ” and that it “ ‘is mechanism based as we wor ried it was.’ ” Id., at 192. It also said that Merck had given its salespeople instructions to “ ‘DODGE’ ” questions about Vioxx’s cardiovascular effects. Id., at 193. C The plaintiffs filed their complaint on November 6, 2003. As subsequently amended, the complaint alleged that Merck had defrauded investors by promoting the naproxen hypothesis, knowing the hypothesis was false. It said, for example, that Merck “knew, at least as early as 1996, of the serious safety issues with Vioxx,” and that a “1998 internal Merck clinical trial . . . revealed that . . . serious cardiovascular events . . . occurred six times more frequently in patients given Vioxx than in patients given a different arthritis drug or placebo.” Id., at 56, 58–59 (emphasis and capitalization deleted). Merck, believing that the plaintiffs knew or should have Cite as: 559 U. S. ____ (2010) 7 Opinion of the Court known the “facts constituting the violation” at least two years earlier, moved to dismiss the complaint, saying it was filed too late. The District Court granted the motion. The court held that the (March 2001) VIGOR study, the (September 2001) FDA warning letter, and Merck’s (Octo ber 2001) response should have alerted the plaintiffs to a “possibility that Merck had knowingly misrepresented material facts” no later than October 9, 2001, thus placing the plaintiffs on “inquiry notice” to look further. In re Merck & Co. Securities, Derivative & “ERISA” Litigation, 483 F. Supp. 2d 407, 423 (NJ 2007) (emphasis added). Finding that the plaintiffs had failed to “show that they exercised reasonable due diligence but nevertheless were unable to discover their injuries,” the court took October 9, 2001, as the date that the limitations period began to run and therefore found the complaint untimely. Id., at 424. The Court of Appeals for the Third Circuit reversed. A majority held that the pre-November 2001 events, while constituting “storm warnings,” did not suggest much by way of scienter, and consequently did not put the plaintiffs on “inquiry notice,” requiring them to investigate further. In re Merck & Co. Securities, Derivative & “ERISA” Litiga tion, 543 F.3d 150, 172 (2008). A dissenting judge consid ered the pre-November 2001 events sufficient to start the 2-year clock running. Id., at 173 (opinion of Roth, J.). Merck sought review in this Court, pointing to dis agreements among the Courts of Appeals. Compare Theo harous v. Fong, 256 F.3d 1219, 1228 (CA11 2001) (limita tions period begins to run when information puts plaintiffs on “inquiry notice” of the need for investigation), with Shah v. Meeker, 435 F.3d 244, 249 (CA2 2006) (same; but if plaintiff does investigate, period runs “from the date such inquiry should have revealed the fraud” (internal quotation marks omitted)), and New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (CA6 2003) (limitations period always begins to 8 MERCK & CO. v. REYNOLDS Opinion of the Court run only when a reasonably diligent plaintiff, after being put on “inquiry notice,” should have discovered facts con stituting violation (internal quotation marks omitted)). We granted Merck’s petition. II Before turning to Merck’s arguments, we consider a more basic matter. The parties and the Solicitor General agree that §1658(b)(1)’s word “discovery” refers not only to a plaintiff’s actual discovery of certain facts, but also to the facts that a reasonably diligent plaintiff would have discovered. We agree. But because the statute’s language does not make this interpretation obvious, and because we cannot answer the question presented without considering whether the parties are right about this matter, we set forth the reasons for our agreement in some detail. We recognize that one might read the statutory words “after the discovery of the facts constituting the violation” as referring to the time a plaintiff actually discovered the relevant facts. But in the statute of limitations context, the word “discovery” is often used as a term of art in con nection with the “discovery rule,” a doctrine that delays accrual of a cause of action until the plaintiff has “discov ered” it. The rule arose in fraud cases as an exception to the general limitations rule that a cause of action accrues once a plaintiff has a “complete and present cause of ac tion,” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (citing Clark v. Iowa City, 20 Wall. 583, 589 (1875); inter nal quotation marks omitted). This Court long ago recog nized that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded. Otherwise, “the law which was designed to prevent fraud” could become “the means by which it is Cite as: 559 U. S. ____ (2010) 9 Opinion of the Court made successful and secure.” Bailey v. Glover, 21 Wall. 342, 349 (1875). Accordingly, “where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered.” Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946) (internal quotation marks omitted; emphasis added). And for more than a century, courts have under stood that “[f]raud is deemed to be discovered . . . when, in the exercise of reasonable diligence, it could have been discovered.” 2 H. Wood, Limitation of Actions §276b(11), p. 1402 (4th ed. 1916); see id., at 1401–1403, and nn. 74– 84 (collecting cases and statutes); see, e.g., Holmberg, supra, at 397; Kirby v. Lake Shore & Michigan Southern R. Co., 120 U.S. 130, 138 (1887) (The rule “regard[s] the cause of action as having accrued at the time the fraud was or should have been discovered”). More recently, both state and federal courts have ap plied forms of the “discovery rule” to claims other than fraud. See 2 C. Corman, Limitation of Actions §§11.1.2.1, 11.1.2.3, pp. 136–142, and nn. 6–13, 18–23 (1991 and 1993 Supp.) (hereinafter Corman) (collecting cases); see, e.g., United States v. Kubrick, 444 U.S. 111 (1979). Legisla tures have codified the discovery rule in various contexts. 2 Corman §11.2, at 170–171, and nn. 1–9 (collecting stat utes); see, e.g., 28 U.S. C. §2409a(g) (actions to quiet title against the United States). In doing so, legislators have written the word “discovery” directly into the statute. And when they have done so, state and federal courts have typically interpreted the word to refer not only to actual discovery, but also to the hypothetical discovery of facts a reasonably diligent plaintiff would know. See, e.g., Pea cock v. Barnes, 142 N. C. 215, 217–220, 55 S.E. 99, 100 (1906); Davis v. Hibernia Sav. & Loan Soc., 21 Cal. App. 444, 448, 132 P. 462, 464 (1913); Roether v. National Union Fire Ins. Co., 51 N. D. 634, 640–642, 200 N.W. 818, 10 MERCK & CO. v. REYNOLDS Opinion of the Court 821 (1924); Goldenberg v. Bache & Co., 270 F.2d 675, 681 (CA5 1959); Mobley v. Hall, 202 Mont. 227, 232, 657 P.2d 604, 606 (1983); Tregenza v. Great American Communica tions Co., 12 F.3d 717, 721–722 (CA7 1993); J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1254 (CA1 1996). Thus, treatise writers now describe “the discovery rule” as allowing a claim “to accrue when the litigant first knows or with due diligence should know facts that will form the basis for an action.” 2 Corman §11.1.1, at 134 (emphasis added); see also ibid., n. 1 (collecting cases); 37 Am. Jur. 2d, Fraud and Deceit §347, p. 354 (2001 and Supp. 2009) (noting that the various formulations of “dis covery” all provide that “in addition to actual knowledge of the fraud, once a reasonably diligent party is in a position that they should have sufficient knowledge or information to have actually discovered the fraud, they are charged with discovery”); id., at 354–355, and nn. 2–11 (collecting cases). Like the parties, we believe that Congress intended courts to interpret the word “discovery” in §1658(b)(1) similarly. Before Congress enacted that statute, this Court, having found in the federal securities laws the existence of an implied private §10(b) action, determined its governing limitations period by looking to other limita tions periods in the federal securities laws. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991). Noting the existence of various formulations “differ[ing] slightly in terminology,” the Court chose the language in 15 U.S. C. §78i(e), the statutory provision that governs securities price manipulation claims. 501 U.S., at 364, n. 9. And in doing so, the Court said that private §10(b) actions “must be commenced within one year after the discovery of the facts constituting the viola tion and within three years after such violation.” Id., at 364 (emphasis added). (The Court listed among the vari Cite as: 559 U. S. ____ (2010) 11 Opinion of the Court ous formulations the one in 15 U.S. C. §77m, on which the concurrence relies. See post, at 2–4 (SCALIA, J., concurring in part and concurring in judgment); Lampf, supra, at 360, and n. 7 (quoting §77m).) Subsequently, every Court of Appeals to decide the matter held that “discovery of the facts constituting the violation” occurs not only once a plaintiff actually discov ers the facts, but also when a hypothetical reasonably diligent plaintiff would have discovered them. See, e.g., Law v. Medco Research, Inc., 113 F.3d 781, 785–786 (CA7 1997); Dodds v. Cigna Securities, Inc., 12 F.3d 346, 350, 353 (CA2 1993); see In re NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1325, n. 4 (CA3 2002) (collecting cases). Some of those courts noted that other limitations provi sions in the federal securities laws explicitly provide that the period begins to run “ ‘after the discovery of the untrue statement . . . or after such discovery should have been made by [the] exercise of reasonable diligence,’ ” whereas the formulation adopted by the Court in Lampf from 15 U.S. C. §78i(e) does not. Tregenza, supra, at 721 (quoting §77m; emphasis added in Tregenza); see Lampf, supra, at 364, n. 9. But, courts reasoned, because the term “discov ery” in respect to statutes of limitations for fraud has long been understood to include discoveries a reasonably dili gent plaintiff would make, the omission of an explicit provision to that effect did not matter. Tregenza, supra, at 721; accord, New England Health Care, 336 F.3d, at 499– 500. In 2002, when Congress enacted the present limitations statute, it repeated Lampf’s critical language. The statute says that an action based on fraud “may be brought not later than the earlier of . . . 2 years after the discovery of the facts constituting the violation” (or “5 years after such violation”). §804 of the Sarbanes-Oxley Act, 116 Stat. 801, codified at 28 U.S. C. §1658(b) (emphasis added). (This statutory provision does not make the linguistic distinc 12 MERCK & CO. v. REYNOLDS Opinion of the Court tion that the concurrence finds in a different statute, §77m, and upon which its argument rests. Cf. 29 U.S. C. §1113(2) (statute in which Congress provided that an action be brought “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation” (emphasis added)).) Not surprisingly, the Courts of Appeals unanimously have continued to inter pret the word “discovery” in this statute as including not only facts a particular plaintiff knows, but also the facts any reasonably diligent plaintiff would know. See, e.g., Staehr v. Hartford Financial Servs. Group, Inc., 547 F.3d 406, 411 (CA2 2008); Sudo Properties, Inc. v. Terrebonne Parish Consolidated Govt., 503 F.3d 371, 376 (CA5 2007). We normally assume that, when Congress enacts stat utes, it is aware of relevant judicial precedent. See, e.g., Edelman v. Lynchburg College, 535 U.S. 106, 116–117, and n. 13 (2002); Commissioner v. Keystone Consol. Indus tries, Inc., 508 U.S. 152, 159 (1993). Given the history and precedent surrounding the use of the word “discovery” in the limitations context generally as well as in this provision in particular, the reasons for making this as sumption are particularly strong here. We consequently hold that “discovery” as used in this statute encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known. And we evaluate Merck’s claims accordingly. III We turn now to Merck’s arguments in favor of holding that petitioners’ claims accrued before November 6, 2001. First, Merck argues that the statute does not require “discovery” of scienter-related “facts.” See Brief for Peti tioners 19–28. We cannot agree, however, that facts about scienter are unnecessary. The statute says that the limitations period does not begin to run until “discovery of the facts constituting the Cite as: 559 U. S. ____ (2010) 13 Opinion of the Court violation.” 28 U.S. C. §1658(b)(1) (emphasis added). Scienter is assuredly a “fact.” In a §10(b) action, scienter refers to “a mental state embracing intent to deceive, manipulate, or defraud.” Ernst & Ernst, 425 U.S., at 194, n. 12. And the “ ‘state of a man’s mind is as much a fact as the state of his digestion.’ ” Postal Service Bd. of Gover nors v. Aikens, 460 U.S. 711, 716 (1983) (quoting Edging ton v. Fitzmaurice, [1885] 29 Ch. Div. 459, 483). And this “fact” of scienter “constitut[es]” an important and necessary element of a §10(b) “violation.” A plaintiff cannot recover without proving that a defendant made a material misstatement with an intent to deceive—not merely innocently or negligently. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007); Ernst & Ernst, supra. Indeed, Congress has enacted special heightened pleading requirements for the scienter element of §10(b) fraud cases. See 15 U.S. C. §78u–4(b)(2) (requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” (emphasis added)). As a result, unless a §10(b) plaintiff can set forth facts in the complaint showing that it is “at least as likely as” not that the defendant acted with the relevant knowledge or intent, the claim will fail. Tellabs, supra, at 328 (emphasis deleted). It would therefore frustrate the very purpose of the discovery rule in this provision—which, after all, specifically applies only in cases “involv[ing] a claim of fraud, deceit, manipu lation, or contrivance,” §1658(b)—if the limitations period began to run regardless of whether a plaintiff had discov ered any facts suggesting scienter. So long as a defendant concealed for two years that he made a misstatement with an intent to deceive, the limitations period would expire before the plaintiff had actually “discover[ed]” the fraud. We consequently hold that facts showing scienter are among those that “constitut[e] the violation.” In so hold ing, we say nothing about other facts necessary to support 14 MERCK & CO. v. REYNOLDS Opinion of the Court a private §10(b) action. Cf. Brief for United States as Amicus Curiae 12, n. 1 (suggesting that facts concerning a plaintiff’s reliance, loss, and loss causation are not among those that constitute “the violation” and therefore need not be “discover[ed]” for a claim to accrue). Second, Merck argues that, even if “discovery” requires facts related to scienter, facts that tend to show a materi ally false or misleading statement (or material omission) are ordinarily sufficient to show scienter as well. See Brief for Petitioners 22, 28–29. But we do not see how that is so. We recognize that certain statements are such that, to show them false is normally to show scienter as well. It is unlikely, for example, that someone would falsely say “I am not married” without being aware of the fact that his statement is false. Where §10(b) is at issue, however, the relation of factual falsity and state of mind is more context specific. An incorrect prediction about a firm’s future earnings, by itself, does not automatically tell us whether the speaker deliberately lied or just made an innocent (and therefore nonactionable) error. Hence, the statute may require “discovery” of scienter-related facts beyond the facts that show a statement (or omission) to be materially false or misleading. Merck fears that this requirement will give life to stale claims or subject defen dants to liability for acts taken long ago. But Congress’ inclusion in the statute of an unqualified bar on actions instituted “5 years after such violation,” §1658(b)(2), giv ing defendants total repose after five years, should dimin ish that fear. Cf. Lampf, 501 U.S., at 363 (holding compa rable bar not subject to equitable tolling). Third, Merck says that the limitations period began to run prior to November 2001 because by that point the plaintiffs were on “inquiry notice.” Merck uses the term “inquiry notice” to refer to the point “at which a plaintiff possesses a quantum of information sufficiently suggestive of wrongdoing that he should conduct a further inquiry.” Cite as: 559 U. S. ____ (2010) 15 Opinion of the Court Brief for Petitioners 20. And some, but not all, Courts of Appeals have used the term in roughly similar ways. See, e.g., Franze v. Equitable Assurance, 296 F.3d 1250, 1254 (CA11 2002) (“[I]nquiry notice [is] “ ‘the term used for knowledge of facts that would lead a reasonable person to begin investigating the possibility that his legal rights had been infringed’ ”). Cf. Dodds, 12 F.3d, at 350 (“duty of inquiry” arises once “circumstances would suggest to an investor of ordinary intelligence the probability that she had been defrauded”); Fujisawa Pharmaceutical Co. v. Kapoor, 115 F.3d 1332, 1335–1336 (CA7 1997) (“The facts constituting [inquiry] notice must be sufficien[t] . . . to incite the victim to investigate” and “to enable him to tie up any loose ends and complete the investigation in time to file a timely suit”); Great Rivers Cooperative of South eastern Iowa v. Farmland Industries, Inc., 120 F.3d 893, 896 (CA8 1997) (“Inquiry notice exists when the victim is aware of facts that would lead a reasonable person to investigate and consequently acquire actual knowledge of the defendant’s misrepresentations” (emphasis added)). If the term “inquiry notice” refers to the point where the facts would lead a reasonably diligent plaintiff to investi gate further, that point is not necessarily the point at which the plaintiff would already have discovered facts showing scienter or other “facts constituting the violation.” But the statute says that the plaintiff’s claim accrues only after the “discovery” of those latter facts. Nothing in the text sug gests that the limitations period can sometimes begin before “discovery” can take place. Merck points out that, as we have discussed, see supra, at 8–9, the court-created “discov ery rule” exception to ordinary statutes of limitations is not generally available to plaintiffs who fail to pursue their claims with reasonable diligence. But we are dealing here with a statute, not a court-created exception to a statute. Because the statute contains no indication that the limita tions period should occur at some earlier moment before 16 MERCK & CO. v. REYNOLDS Opinion of the Court “discovery,” when a plaintiff would have begun investigat ing, we cannot accept Merck’s argument. As a fallback, Merck argues that even if the limitations period does generally begin at “discovery,” it should none theless run from the point of “inquiry notice” in one par ticular situation, namely, where the actual plaintiff fails to undertake an investigation once placed on “inquiry no tice.” In such circumstances, Merck contends, the actual plaintiff is not diligent, and the law should not “effectively excuse a plaintiff’s failure to conduct a further investiga tion” by placing that nondiligent plaintiff and a reasonably diligent plaintiff “in the same position.” Brief for Petition ers 48. We cannot accept this argument for essentially the same reason we reject “inquiry notice” as the standard gener ally: We cannot reconcile it with the statute, which simply provides that “discovery” is the event that triggers the 2 year limitations period—for all plaintiffs. Cf. United States v. Mack, 295 U.S. 480, 489 (1935) (“Laches within the term of the statute of limitations is no defense at law”). Furthermore, the statute does not place all plain tiffs “in the same position” no matter whether they inves tigate when investigation is warranted. The limitations period puts plaintiffs who fail to investigate once on “in quiry notice” at a disadvantage because it lapses two years after a reasonably diligent plaintiff would have discovered the necessary facts. A plaintiff who fails entirely to inves tigate or delays investigating may well not have discov ered those facts by that time or, at least, may not have found sufficient facts by that time to be able to file a §10(b) complaint that satisfies the applicable heightened plead ing standards. Cf. Young v. Lepone, 305 F.3d 1, 9 (CA1 2002) (“[A] reasonably diligent investigation . . . may consume as little as a few days or as much as a few years to get to the bottom of the matter”). Merck further contends that its proposed “inquiry no Cite as: 559 U. S. ____ (2010) 17 Opinion of the Court tice” standard is superior, because determining when a hypothetical reasonably diligent plaintiff would have “discover[ed]” the necessary facts is too complicated for judges to undertake. But courts applying the traditional discovery rule have long had to ask what a reasonably diligent plaintiff would have known and done in myriad circumstances. And courts in at least five Circuits already ask this kind of question in securities fraud cases. See, e.g., Rothman v. Gregor, 220 F.3d 81, 97 (CA2 2000); New England Health Care, 336 F.3d, at 501; Young, supra, at 1, 9–10; Sterlin v. Biomune Systems, 154 F.3d 1191, 1201 (CA10 1998); Marks v. CDW Computer Centers, Inc., 122 F.3d 363, 367–368 (CA7 1997). Merck has not shown this precedent to be unworkable. We consequently find that the “discovery” of facts that put a plaintiff on “inquiry notice” does not automatically begin the running of the limitations period. We conclude that the limitations period in §1658(b)(1) begins to run once the plaintiff did discover or a reasona bly diligent plaintiff would have “discover[ed] the facts constituting the violation”—whichever comes first. In determining the time at which “discovery” of those “facts” occurred, terms such as “inquiry notice” and “storm warn ings” may be useful to the extent that they identify a time when the facts would have prompted a reasonably diligent plaintiff to begin investigating. But the limitations period does not begin to run until the plaintiff thereafter discov ers or a reasonably diligent plaintiff would have discov ered “the facts constituting the violation,” including sci enter—irrespective of whether the actual plaintiff undertook a reasonably diligent investigation. IV Finally, Merck argues that, even if all its other legal arguments fail, the record still shows that, before Novem 18 MERCK & CO. v. REYNOLDS Opinion of the Court ber 6, 2001, the plaintiffs had discovered or should have discovered “the facts constituting the violation.” In re spect to scienter Merck primarily relies upon (1) the FDA’s September 2001 warning letter, which said that Merck had “ ‘minimized’ ” the VIGOR study’s “ ‘potentially serious cardiovascular findings’ ” and (2) pleadings filed in prod ucts-liability actions in September and October 2001 alleging that Merck had “ ‘omitted, suppressed, or con cealed material facts concerning the dangers and risks associated with Vioxx’ ” and “purposefully downplayed and/or understated the serious nature of the risks associ ated with Vioxx.” Brief for Petitioners 36–37 (quoting App. 340, 893). The FDA’s warning letter, however, shows little or nothing about the here-relevant scienter, i.e., whether Merck advanced the naproxen hypothesis with fraudulent intent. See Part I–A(4), supra. The FDA itself described the pro-Vioxx naproxen hypothesis as a “possible explana tion” for the VIGOR results, faulting Merck only for failing sufficiently to publicize the alternative less favorable to Merck, that Vioxx might be harmful. App. 340. The products-liability complaints’ statements about Merck’s knowledge show little more. See Part I–A(3), supra. Merck does not claim that these complaints con tained any specific information suggesting the fraud al leged here, i.e., that Merck knew the naproxen hypothesis was false even as it promoted it. And, without providing any reason to believe that the plaintiffs had special access to information about Merck’s state of mind, the complaints alleged only in general terms that Merck had concealed information about Vioxx and “purposefully downplayed and/or understated” the risks associated with Vioxx—the same charge made in the FDA warning letter. App. 893. In our view, neither these two circumstances nor any of the other pre-November 2001 circumstances that we have set forth in Part I–A, supra, whether viewed separately or Cite as: 559 U. S. ____ (2010) 19 Opinion of the Court together, reveal “facts” indicating scienter. Regardless of which, if any, of the events following November 6, 2001, constituted “discovery,” we need only conclude that prior to November 6, 2001, the plaintiffs did not discover, and Merck has not shown that a reasonably diligent plaintiff would have discovered, “the facts constituting the viola tion.” In light of our interpretation of the statute, our holdings in respect to scienter, and our application of those holdings to the circumstances of this case, we must, and we do, reach that conclusion. Thus, the plaintiffs’ suit is timely. We need not—and do not—pass upon the Court of Appeals’ suggestion that the November 2003 Brigham and Women’s study might have triggered the statute of limitations. The judgment of the Court of Appeals is Affirmed. Cite as: 559 U. S. ____ (2010) 1 Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–905 _________________ MERCK & CO., INC., ET AL., PETITIONERS v. RICHARD REYNOLDS ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [April 27, 2010] JUSTICE STEVENS, concurring in part and concurring in the judgment. In my opinion the Court’s explanation of why the com plaint was timely filed is convincing and correct. Ante, at 12–19. In this case there is no difference between the time when the plaintiffs actually discovered the factual basis for their claim and the time when reasonably diligent plaintiffs should have discovered those facts. For that reason, much of the discussion in Part II of the Court’s opinion, see ante, at 8–12, is not necessary to support the Court’s judgment. Until a case arises in which the differ ence between an actual discovery rule and a constructive discovery rule would affect the outcome, I would reserve decision on the merits of JUSTICE SCALIA’s argument, post, at 1–7 (opinion concurring in part and concurring in judgment). With this reservation, I join the Court’s excel lent opinion. Cite as: 559 U. S. ____ (2010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–905 _________________ MERCK & CO., INC., ET AL., PETITIONERS v. RICHARD REYNOLDS ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [April 27, 2010] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.

This case concerns the timeliness of a complaint filed in a private securities fraud action. The complaint was timely if filed no more than two years after the plaintiffs “discover[ed] the facts constituting the violation.” 28 U.S. C. Construing this limitations statute for the first time, we hold that a cause of action accrues (1) when the plaintiff did in fact discover, or (2) when a rea sonably diligent plaintiff would have discovered, “the facts constituting the violation”—whichever comes first. We also hold that the “facts constituting the violation” include the fact of scienter, “a mental state embracing intent to deceive, manipulate, or defraud,” & v. Hochfelder, pplying this standard, we affirm the Court of ppeals’ determination that the complaint filed here was timely. I The action before us involves a claim by a group of inves tors (the plaintiffs, respondents here) that Merck & Co. and others (the petitioners here, hereinafter Merck) know ingly misrepresented the risks of heart attacks accompany 2 MERCK & CO. v. REYNOLDS Opinion of the Court ing the use of Merck’s pain-killing drug, Vioxx (leading to economic losses when the risks later became apparent). The plaintiffs brought an action for securities fraud under of the Securities Exchange ct of 134. See 48 Stat. 81, as amended, 15 U.S. C. SEC Rule 10b–5, 17 CFR (200); Dura Pharmaceuticals, Inc. v. Broudo, The applicable statute of limitations provides that a “private right of action” that, like the present action, “involves a claim of fraud, deceit, manipulation, or con trivance in contravention of a regulatory requirement concerning the securities laws may be brought not later than the earlier of— “(1) 2 years after the discovery of the facts constituting the violation; or “(2) 5 years after such violation.” 28 U.S. C. The complaint in this case was filed on November 6, 2003, and no one doubts that it was filed within five years of the alleged violation. Therefore, the critical date for timeliness purposes is November 6, —two years before this complaint was filed. Merck claims that before this date the plaintiffs had (or should have) discovered the “facts constituting the violation.” If so, by the time the plaintiffs filed their complaint, the 2-year statutory period in had run. The plaintiffs reply that they had not, and could not have, discovered by the critical date those “facts,” particularly not the facts related to scienter, and that their complaint was therefore timely. We first set out the relevant pre-November facts, as we have gleaned them from the briefs, the record, and the opinions below. 1. 10’s. In the mid-10’s Merck developed Vioxx. In 1 the Food and Drug dministration (FD) approved it for prescription use. Vioxx suppresses pain by inhibiting Cite as: 55 U. S. (0) 3 Opinion of the Court the body’s production of an enzyme called COX–2 (cyclooxy- genase-2). COX–2 is associated with pain and inflamma- tion. Unlike some other anti-inflammatory drugs in its class like aspirin, ibuprofen, and naproxen, Vioxx does not inhibit production of a second enzyme called COX–1 (cyclooxygenase-1). COX–1 plays a part in the functioning of the gastrointestinal tract and also in platelet aggregation (associated with blood clots). pp. 50–51. 2. March Merck announced the results of a study, called the “VIGOR” study. at 21–24. The study compared Vioxx with another painkiller, naproxen. The study showed that persons taking Vioxx suffered fewer gastrointestinal side effects (as Merck had hoped). But the study also revealed that approximately 4 out of every 1,000 participants who took Vioxx suffered heart attacks, compared to only 1 per 1,000 participants who took naproxen. ; see Bombardier et al., Com- parison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid rthritis, 343 New England J. Medicine 1520, 1523, 1526–1527 Merck’s press release acknowledged VIGOR’s adverse cardiovascular data. But Merck said that these data were “consistent with naproxen’s ability to block platelet aggre- gation.” pp. 21. Merck noted that, since “Vioxx, like all COX–2 selective medicines, does not block platelet aggre- gation[, it] would not be expected to have similar effects.” nd Merck added that “safety data from all other completed and ongoing clinical trials showed no indica- tion of a difference in the incidence of thromboembolic events between Vioxx” and either a placebo or comparable drugs. This theory—that VIGOR’s troubling cardiovascular findings might be due to the absence of a benefit conferred by naproxen rather than due to a harm caused by Vioxx— later became known as the “naproxen hypothesis.” In advancing that hypothesis, Merck acknowledged that the 4 MERCK & CO. v. REYNOLDS Opinion of the Court naproxen benefit “had not been observed previously.” at 21. Journalists and stock market analysts reported all of the above—the positive gastrointestinal results, the troubling cardiovascular finding, the naproxen hypothesis, and the fact that the naproxen hypothesis was unproved. See at 355–31, 508–557. 3. February to ugust Public debate about the naproxen hypothesis continued. In February the FD’s rthritis dvisory Committee convened to consider Merck’s request that the Vioxx label be changed to reflect VIGOR’s positive gastrointestinal findings. The VIGOR cardiovascular findings were also discussed. at 32– 35, 558–577. In May a group of plaintiffs filed a products-liability lawsuit against Merck, claiming that “Merck’s own research” had demonstrated that “users of Vioxx were four times as likely to suffer heart attacks as compared to other less expensive, medications.” at 86. In ugust the Journal of the merican Medical ssociation wrote that the available data raised a “cau tionary flag” and strongly urged that “a trial specifically assessing cardiovascular risk” be done. at 331–332; Mukherjee, Nissen, & Topol, Risk of Cardiovascular Events ssociated with Selective Cox-2 Inhibitors, 286 JM 54 t about the same time, Bloomberg News quoted a Merck scientist who claimed that Merck had “additional data” that were “very, very reassuring,” and Merck issued a press release stating that it stood “behind the overall and cardiovascular safety profile of Vioxx.” pp. 434, 120 (emphasis deleted; internal quota tion marks omitted). 4. September and October The FD sent Merck a warning letter released to the public on September 21, It said that, in respect to cardiovascular risks, Merck’s Vioxx marketing was “false, lacking in fair bal ance, or otherwise misleading.” t the same time, the FD acknowledged that the naproxen hypothesis Cite as: 55 U. S. (0) 5 Opinion of the Court was a “possible explanation” of the VIGOR results. at 340. But it found that Merck’s “promotional campaign selectively present[ed]” that hypothesis without adequately acknowledging “another reasonable explanation,” namely, “that Vioxx may have pro-thrombotic [i.e., adverse cardio vascular] properties.” The FD ordered Merck to send healthcare providers a corrective letter. fter the FD letter was released, more products liability lawsuits were filed. See at 885–56. Merck’s share price fell by 6.6% over several days. See By October 1, the price rebounded. See On October the New York Times said that Merck had reexam ined its own data and “found no evidence that Vioxx in creased the risk of heart attacks.” pp. 504. It quoted the president of Merck Research Laboratories as positing “ ‘two possible interpretations’ ”: “ ‘Naproxen lowers the heart attack rate, or Vioxx raises it.’ ” Stock ana lysts, while reporting the warning letter, also noted that the FD had not denied that the naproxen hypothesis remained an unproven but possible explanation. See at 614, 626, 628. B We next set forth three important events that occurred after the critical date. 1. October 2003. The Wall Street Journal published the results of a Merck-funded Vioxx study conducted at Bos ton’s Brigham and Women’s Hospital. fter examining the medical records of more than 50,000 Medicare pa tients, researchers found that those given Vioxx for 30-to 0 days were 37% more likely to have suffered a heart attack than those given either a different painkiller or no painkiller at all. at 164–165. (That is to say, if pa tients given a different painkiller or given no painkiller at all suffered 10 heart attacks, then the same number of patients given Vioxx would suffer 13 or 14 heart attacks.) 6 MERCK & CO. v. REYNOLDS Opinion of the Court Merck defended Vioxx and pointed to the study’s limita tions. at 165–167. 2. September 30, 2004. Merck withdrew Vioxx from the market. It said that a new study had found “an increased risk of confirmed cardiovascular events beginning after 18 months of continuous therapy.” (internal quo tation marks omitted). Merck representative publicly described the results as “totally unexpected.” Merck’s shares fell by 27% the same day. 3. November 1, 2004. The Wall Street Journal published an article stating that “internal Merck e-mails and mar keting materials as well as interviews with outside scien tists show that the company fought forcefully for years to keep safety concerns from destroying the drug’s commer cial prospects.” at 18–10. The article said that an early e-mail from Merck’s head of research had said that the VIGOR “results showed that the cardiovascular events ‘are clearly there,’ ” that it was “ ‘a shame but a low incidence,’ ” and that it “ ‘is mechanism based as we wor ried it was.’ ” It also said that Merck had given its salespeople instructions to “ ‘DODGE’ ” questions about Vioxx’s cardiovascular effects. C The plaintiffs filed their complaint on November 6, 2003. s subsequently amended, the complaint alleged that Merck had defrauded investors by promoting the naproxen hypothesis, knowing the hypothesis was false. It said, for example, that Merck “knew, at least as early as 16, of the serious safety issues with Vioxx,” and that a “18 internal Merck clinical trial revealed that serious cardiovascular events occurred six times more frequently in patients given Vioxx than in patients given a different arthritis drug or placebo.” 58–5 (emphasis and capitalization deleted). Merck, believing that the plaintiffs knew or should have Cite as: 55 U. S. (0) 7 Opinion of the Court known the “facts constituting the violation” at least two years earlier, moved to dismiss the complaint, saying it was filed too late. The District Court granted the motion. The court held that the VIGOR study, the FD warning letter, and Merck’s response should have alerted the plaintiffs to a “possibility that Merck had knowingly misrepresented material facts” no later than October thus placing the plaintiffs on “inquiry notice” to look further. In re Merck & Co. Securities, Derivative & “ERIS” Litigation, Finding that the plaintiffs had failed to “show that they exercised reasonable due diligence but nevertheless were unable to discover their injuries,” the court took October as the date that the limitations period began to run and therefore found the complaint untimely. The Court of ppeals for the Third Circuit reversed. majority held that the pre-November events, while constituting “storm warnings,” did not suggest much by way of scienter, and consequently did not put the plaintiffs on “inquiry notice,” requiring them to investigate further. In re Merck & Co. Securities, Derivative & “ERIS” Litiga tion, dissenting judge consid ered the pre-November events sufficient to start the 2-year clock running. Merck sought review in this Court, pointing to dis agreements among the Courts of ppeals. Compare Theo (limita tions period begins to run when information puts plaintiffs on “inquiry notice” of the need for investigation), with (same; but if plaintiff does investigate, period runs “from the date such inquiry should have revealed the fraud” (internal quotation marks omitted)), and New England Health Employees Pension Fund v. & LLP, 336 F.3d 45, 501 (C6 2003) (limitations period always begins to 8 MERCK & CO. v. REYNOLDS Opinion of the Court run only when a reasonably diligent plaintiff, after being put on “inquiry notice,” should have discovered facts con stituting violation (internal quotation marks omitted)). We granted Merck’s petition. II Before turning to Merck’s arguments, we consider a more basic matter. The parties and the Solicitor General agree that ’s word “discovery” refers not only to a plaintiff’s actual discovery of certain facts, but also to the facts that a reasonably diligent plaintiff would have discovered. We agree. But because the statute’s language does not make this interpretation obvious, and because we cannot answer the question presented without considering whether the parties are right about this matter, we set forth the reasons for our agreement in some detail. We recognize that one might read the statutory words “after the discovery of the facts constituting the violation” as referring to the time a plaintiff actually discovered the relevant facts. But in the statute of limitations context, the word “discovery” is often used as a term of art in con nection with the “discovery rule,” a doctrine that delays accrual of a cause of action until the plaintiff has “discov ered” it. The rule arose in fraud cases as an exception to the general limitations rule that a cause of action accrues once a plaintiff has a “complete and present cause of ac tion,” Bay rea Laundry and Dry Cleaning Pension Trust ; inter nal quotation marks omitted). This Court long ago recog nized that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded. Otherwise, “the law which was designed to prevent fraud” could become “the means by which it is Cite as: 55 U. S. (0) Opinion of the Court made successful and secure.” Bailey v. Glover, 21 Wall. 342, 34 ccordingly, “where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered.” (146) (internal quotation marks omitted; emphasis added). nd for more than a century, courts have under stood that “[f]raud is deemed to be discovered when, in the exercise of reasonable diligence, it could have been discovered.” 2 H. Wood, Limitation of ctions p. 1402 (4th ed. 116); see at 1401–1403, and nn. 74– 84 (collecting cases and statutes); see, e.g., Holmberg, at ; (The rule “regard[s] the cause of action as having accrued at the time the fraud was or should have been discovered”). More recently, both state and federal courts have ap plied forms of the “discovery rule” to claims other than fraud. See 2 C. Corman, Limitation of ctions 11.1.2.3, pp. 136–142, and nn. 6–13, 18–23 (11 and Supp.) (hereinafter Corman) ; see, e.g., United Legisla tures have codified the discovery rule in various contexts. 2 Corman at 170–171, and nn. 1– (collecting stat utes); see, e.g., 28 U.S. C. (actions to quiet title against the United States). In doing so, legislators have written the word “discovery” directly into the statute. nd when they have done so, state and federal courts have typically interpreted the word to refer not only to actual discovery, but also to the hypothetical discovery of facts a reasonably diligent plaintiff would know. See, e.g., Pea 217–220, (106); ; 640–642, 10 MERCK & CO. v. REYNOLDS Opinion of the Court 821 (124); (C5 15); 657 P.2d 604, 606 ; ; J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, (C1 16). Thus, treatise writers now describe “the discovery rule” as allowing a claim “to accrue when the litigant first knows or with due diligence should know facts that will form the basis for an action.” 2 Corman at 134 ; see also ib n. 1 ; 37 m. Jur. 2d, Fraud and Deceit p. 354 ( and Supp. 200) (noting that the various formulations of “dis covery” all provide that “in addition to actual knowledge of the fraud, once a reasonably diligent party is in a position that they should have sufficient knowledge or information to have actually discovered the fraud, they are charged with discovery”); at 354–355, and nn. 2–11 (collecting cases). Like the parties, we believe that Congress intended courts to interpret the word “discovery” in similarly. Before Congress enacted that statute, this Court, having found in the federal securities laws the existence of an implied private action, determined its governing limitations period by looking to other limita tions periods in the federal securities laws. Pleva, Lipkind, Prupis & (11). Noting the existence of various formulations “differ[ing] slightly in terminology,” the Court chose the language in 15 U.S. C. the statutory provision that governs securities price manipulation claims. 501 U.S., at 364, n. nd in doing so, the Court said that private actions “must be commenced within one year after the discovery of the facts constituting the viola tion and within three years after such violation.” at 364 (The Court listed among the vari Cite as: 55 U. S. (0) 11 Opinion of the Court ous formulations the one in 15 U.S. C. on which the concurrence relies. See post, at 2–4 (SCLI, J., concurring in part and concurring in judgment); and n. 7 Some of those courts noted that other limitations provi sions in the federal securities laws explicitly provide that the period begins to run “ ‘after the discovery of the untrue statement or after such discovery should have been made by [the] exercise of reasonable diligence,’ ” whereas the formulation adopted by the Court in from 15 U.S. C. does not. (quoting emphasis added in ); see at 364, n. But, courts reasoned, because the term “discov ery” in respect to statutes of limitations for fraud has long been understood to include discoveries a reasonably dili gent plaintiff would make, the omission of an explicit provision to that effect did not matter. at 721; accord, New England Health – 500. In when Congress enacted the present limitations statute, it repeated ’s critical language. The statute says that an action based on fraud “may be brought not later than the earlier of 2 years after the discovery of the facts constituting the violation” (or “5 years after such violation”). of the Sarbanes-Oxley ct, codified at 28 U.S. C. (This statutory provision does not make the linguistic distinc 12 MERCK & CO. v. REYNOLDS Opinion of the Court tion that the concurrence finds in a different statute, and upon which its argument rests. Cf. 2 U.S. C. (statute in which Congress provided that an action be brought “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation” ).) Not surprisingly, the Courts of ppeals unanimously have continued to inter pret the word “discovery” in this statute as including not only facts a particular plaintiff knows, but also the facts any reasonably diligent plaintiff would know. See, e.g., Staehr v. Hartford Financial Servs. Group, Inc., 547 F.3d 406, 411 ; Sudo Properties, We normally assume that, when Congress enacts stat utes, it is aware of relevant judicial precedent. See, e.g., 116–117, and n. 13 ; Given the history and precedent surrounding the use of the word “discovery” in the limitations context generally as well as in this provision in particular, the reasons for making this as sumption are particularly strong here. We consequently hold that “discovery” as used in this statute encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known. nd we evaluate Merck’s claims accordingly. III We turn now to Merck’s arguments in favor of holding that petitioners’ claims accrued before November 6, First, Merck argues that the statute does not require “discovery” of scienter-related “facts.” See Brief for Peti tioners 1–28. We cannot agree, however, that facts about scienter are unnecessary. The statute says that the limitations period does not begin to run until “discovery of the facts constituting the Cite as: 55 U. S. (0) 13 Opinion of the Court violation.” 28 U.S. C. Scienter is assuredly a “fact.” In a action, scienter refers to “a mental state embracing intent to deceive, manipulate, or defraud.” & n. 12. nd the “ ‘state of a man’s mind is as much a fact as the state of his digestion.’ ” Postal Service Bd. of Gover (quoting Edging ton v. Fitzmaurice, [1885] 2 Ch. Div. 45, 483). nd this “fact” of scienter “constitut[es]” an important and necessary element of a “violation.” plaintiff cannot recover without proving that a defendant made a material misstatement with an intent to deceive—not merely innocently or negligently. See Inc. v. Makor Issues & Rights, Ltd., ; & Indeed, Congress has enacted special heightened pleading requirements for the scienter element of fraud cases. See 15 U.S. C. (requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” ). s a result, unless a plaintiff can set forth facts in the complaint showing that it is “at least as likely as” not that the defendant acted with the relevant knowledge or intent, the claim will fail. It would therefore frustrate the very purpose of the discovery rule in this provision—which, after all, specifically applies only in cases “involv[ing] a claim of fraud, deceit, manipu lation, or contrivance,” —if the limitations period began to run regardless of whether a plaintiff had discov ered any facts suggesting scienter. So long as a defendant concealed for two years that he made a misstatement with an intent to deceive, the limitations period would expire before the plaintiff had actually “discover[ed]” the fraud. We consequently hold that facts showing scienter are among those that “constitut[e] the violation.” In so hold ing, we say nothing about other facts necessary to support 14 MERCK & CO. v. REYNOLDS Opinion of the Court a private action. Cf. Brief for United States as micus Curiae 12, n. 1 (suggesting that facts concerning a plaintiff’s reliance, loss, and loss causation are not among those that constitute “the violation” and therefore need not be “discover[ed]” for a claim to accrue). Second, Merck argues that, even if “discovery” requires facts related to scienter, facts that tend to show a materi ally false or misleading statement (or material omission) are ordinarily sufficient to show scienter as well. See Brief for Petitioners 22, 28–2. But we do not see how that is so. We recognize that certain statements are such that, to show them false is normally to show scienter as well. It is unlikely, for example, that someone would falsely say “I am not married” without being aware of the fact that his statement is false. Where is at issue, however, the relation of factual falsity and state of mind is more context specific. n incorrect prediction about a firm’s future earnings, by itself, does not automatically tell us whether the speaker deliberately lied or just made an innocent (and therefore nonactionable) error. Hence, the statute may require “discovery” of scienter-related facts beyond the facts that show a statement (or omission) to be materially false or misleading. Merck fears that this requirement will give life to stale claims or subject defen dants to liability for acts taken long ago. But Congress’ inclusion in the statute of an unqualified bar on actions instituted “5 years after such violation,” (2), giv ing defendants total repose after five years, should dimin ish that fear. Cf. (holding compa rable bar not subject to equitable tolling). Third, Merck says that the limitations period began to run prior to November because by that point the plaintiffs were on “inquiry notice.” Merck uses the term “inquiry notice” to refer to the point “at which a plaintiff possesses a quantum of information sufficiently suggestive of wrongdoing that he should conduct a further inquiry.” Cite as: 55 U. S. (0) 15 Opinion of the Court Brief for Petitioners 20. nd some, but not all, Courts of ppeals have used the term in roughly similar ways. See, e.g., (“[I]nquiry notice [is] “ ‘the term used for knowledge of facts that would lead a reasonable person to begin investigating the possibility that his legal rights had been infringed’ ”). Cf. 12 F.3d, at (“duty of inquiry” arises once “circumstances would suggest to an investor of ordinary intelligence the probability that she had been defrauded”); Fujisawa Pharmaceutical Co. v. Kapoor, (“The facts constituting [inquiry] notice must be sufficien[t] to incite the victim to investigate” and “to enable him to tie up any loose ends and complete the investigation in time to file a timely suit”); Great Rivers Cooperative of South eastern 86 (“Inquiry notice exists when the victim is aware of facts that would lead a reasonable person to investigate and consequently acquire actual knowledge of the defendant’s misrepresentations” ). If the term “inquiry notice” refers to the point where the facts would lead a reasonably diligent plaintiff to investi gate further, that point is not necessarily the point at which the plaintiff would already have discovered facts showing scienter or other “facts constituting the violation.” But the statute says that the plaintiff’s claim accrues only after the “discovery” of those latter facts. Nothing in the text sug gests that the limitations period can sometimes begin before “discovery” can take place. Merck points out that, as we have discussed, see at 8–, the court-created “discov ery rule” exception to ordinary statutes of limitations is not generally available to plaintiffs who fail to pursue their claims with reasonable diligence. But we are dealing here with a statute, not a court-created exception to a statute. Because the statute contains no indication that the limita tions period should occur at some earlier moment before 16 MERCK & CO. v. REYNOLDS Opinion of the Court “discovery,” when a plaintiff would have begun investigat ing, we cannot accept Merck’s argument. s a fallback, Merck argues that even if the limitations period does generally begin at “discovery,” it should none theless run from the point of “inquiry notice” in one par ticular situation, namely, where the actual plaintiff fails to undertake an investigation once placed on “inquiry no tice.” In such circumstances, Merck contends, the actual plaintiff is not diligent, and the law should not “effectively excuse a plaintiff’s failure to conduct a further investiga tion” by placing that nondiligent plaintiff and a reasonably diligent plaintiff “in the same position.” Brief for Petition ers 48. We cannot accept this argument for essentially the same reason we reject “inquiry notice” as the standard gener ally: We cannot reconcile it with the statute, which simply provides that “discovery” is the event that triggers the 2 year limitations period—for all plaintiffs. Cf. United (“Laches within the term of the statute of limitations is no defense at law”). Furthermore, the statute does not place all plain tiffs “in the same position” no matter whether they inves tigate when investigation is warranted. The limitations period puts plaintiffs who fail to investigate once on “in quiry notice” at a disadvantage because it lapses two years after a reasonably diligent plaintiff would have discovered the necessary facts. plaintiff who fails entirely to inves tigate or delays investigating may well not have discov ered those facts by that time or, at least, may not have found sufficient facts by that time to be able to file a complaint that satisfies the applicable heightened plead ing standards. Cf. (“[] reasonably diligent investigation may consume as little as a few days or as much as a few years to get to the bottom of the matter”). Merck further contends that its proposed “inquiry no Cite as: 55 U. S. (0) 17 Opinion of the Court tice” standard is superior, because determining when a hypothetical reasonably diligent plaintiff would have “discover[ed]” the necessary facts is too complicated for judges to undertake. But courts applying the traditional discovery rule have long had to ask what a reasonably diligent plaintiff would have known and done in myriad circumstances. nd courts in at least five Circuits already ask this kind of question in securities fraud cases. See, e.g., 7 ; New England Health ; at 1, –10; 154 F.3d 111, 1 (C10 18); Marks v. CDW Computer Centers, Inc., 122 F.3d 363, 367–368 Merck has not shown this precedent to be unworkable. We consequently find that the “discovery” of facts that put a plaintiff on “inquiry notice” does not automatically begin the running of the limitations period. We conclude that the limitations period in begins to run once the plaintiff did discover or a reasona bly diligent plaintiff would have “discover[ed] the facts constituting the violation”—whichever comes first. In determining the time at which “discovery” of those “facts” occurred, terms such as “inquiry notice” and “storm warn ings” may be useful to the extent that they identify a time when the facts would have prompted a reasonably diligent plaintiff to begin investigating. But the limitations period does not begin to run until the plaintiff thereafter discov ers or a reasonably diligent plaintiff would have discov ered “the facts constituting the violation,” including sci enter—irrespective of whether the actual plaintiff undertook a reasonably diligent investigation. IV Finally, Merck argues that, even if all its other legal arguments fail, the record still shows that, before Novem 18 MERCK & CO. v. REYNOLDS Opinion of the Court ber 6, the plaintiffs had discovered or should have discovered “the facts constituting the violation.” In re spect to scienter Merck primarily relies upon (1) the FD’s September warning letter, which said that Merck had “ ‘minimized’ ” the VIGOR study’s “ ‘potentially serious cardiovascular findings’ ” and (2) pleadings filed in prod ucts-liability actions in September and October alleging that Merck had “ ‘omitted, suppressed, or con cealed material facts concerning the dangers and risks associated with Vioxx’ ” and “purposefully downplayed and/or understated the serious nature of the risks associ ated with Vioxx.” Brief for Petitioners 36–37 (quoting pp. 340, 83). The FD’s warning letter, however, shows little or nothing about the here-relevant scienter, i.e., whether Merck advanced the naproxen hypothesis with fraudulent intent. See Part I–(4), The FD itself described the pro-Vioxx naproxen hypothesis as a “possible explana tion” for the VIGOR results, faulting Merck only for failing sufficiently to publicize the alternative less favorable to Merck, that Vioxx might be harmful. pp. 340. The products-liability complaints’ statements about Merck’s knowledge show little more. See Part I–(3), Merck does not claim that these complaints con tained any specific information suggesting the fraud al leged here, i.e., that Merck knew the naproxen hypothesis was false even as it promoted it. nd, without providing any reason to believe that the plaintiffs had special access to information about Merck’s state of mind, the complaints alleged only in general terms that Merck had concealed information about Vioxx and “purposefully downplayed and/or understated” the risks associated with Vioxx—the same charge made in the FD warning letter. pp. 83. In our view, neither these two circumstances nor any of the other pre-November circumstances that we have set forth in Part I–, whether viewed separately or Cite as: 55 U. S. (0) 1 Opinion of the Court together, reveal “facts” indicating scienter. Regardless of which, if any, of the events following November 6, constituted “discovery,” we need only conclude that prior to November 6, the plaintiffs did not discover, and Merck has not shown that a reasonably diligent plaintiff would have discovered, “the facts constituting the viola tion.” In light of our interpretation of the statute, our holdings in respect to scienter, and our application of those holdings to the circumstances of this case, we must, and we do, reach that conclusion. Thus, the plaintiffs’ suit is timely. We need not—and do not—pass upon the Court of ppeals’ suggestion that the November 2003 Brigham and Women’s study might have triggered the statute of limitations. The judgment of the Court of ppeals is ffirmed. Cite as: 55 U. S. (0) 1 Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STTES No. 08–05 MERCK & CO., INC., ET L., PETITIONERS v. RICHRD REYNOLDS ET L. ON WRIT OF CERTIORRI TO THE UNITED STTES COURT OF PPELS FOR THE THIRD CIRCUIT [pril 27, 0] JUSTICE STEVENS, concurring in part and concurring in the judgment. In my opinion the Court’s explanation of why the com plaint was timely filed is convincing and correct. nte, at 12–1. In this case there is no difference between the time when the plaintiffs actually discovered the factual basis for their claim and the time when reasonably diligent plaintiffs should have discovered those facts. For that reason, much of the discussion in Part II of the Court’s opinion, see ante, at 8–12, is not necessary to support the Court’s judgment. Until a case arises in which the differ ence between an actual discovery rule and a constructive discovery rule would affect the outcome, I would reserve decision on the merits of JUSTICE SCLI’s argument, post, at 1–7 (opinion concurring in part and concurring in judgment). With this reservation, I join the Court’s excel lent opinion. Cite as: 55 U. S. (0) 1 Opinion of SCLI, J. SUPREME COURT OF THE UNITED STTES No. 08–05 MERCK & CO., INC., ET L., PETITIONERS v. RICHRD REYNOLDS ET L. ON WRIT OF CERTIORRI TO THE UNITED STTES COURT OF PPELS FOR THE THIRD CIRCUIT [pril 27, 0] JUSTICE SCLI, with whom JUSTICE THOMS joins, concurring in part and concurring in the judgment.

Justice Scalia

concurring

Merck & Co. v. Reynolds

2010-04-27

https://www.courtlistener.com/opinion/145292/merck-co-v-reynolds/

https://www.courtlistener.com/api/rest/v3/clusters/145292/

2009-043

Private suits under §10(b) of the Securities Exchange Act of 1934, 15 U.S. C. §78j(b), must be brought within “(1) 2 years after the discovery of the facts constituting the violation” or “(2) 5 years after such violation,” whichever comes first. 28 U.S. C. §1658(b)(1). I agree with the Court that scienter is among the “facts constituting the violation” that a plaintiff must “discove[r]” for the limita tions period to begin. Ante, at 12–14 (internal quotation marks omitted). I also agree that respondents’ suit is timely, but for a reason different from the Court’s: Merck has not shown that respondents actually “discover[ed]” scienter more than two years before bringing suit. In ordinary usage, “discovery” occurs when one actually learns something new. See Webster’s New International Dictionary of the English Language 745 (2d ed. 1957) (defining “discovery” as “[f]inding out or ascertaining something previously unknown or unrecognized”). As the Court notes, however, ante, at 8–10, in the context of statutes of limitations “discovery” has long carried an additional meaning: It also occurs when a plaintiff, exer cising reasonable diligence, should have discovered the facts giving rise to his claim. See, e.g., Wood v. Carpenter, 101 U.S. 135, 140–142 (1879); 2 H. Wood, Limitations of 2 MERCK & CO. v. REYNOLDS Opinion of SCALIA, J. Actions §276b(11)–(13), pp. 1401–1408 (4th ed. 1916); Dawson, Undiscovered Fraud and Statutes of Limitation, 31 Mich. L. Rev. 591, 619, and n. 77 (1933). Read in isola tion, “discovery” in §1658(b)(1) might mean constructive discovery. In context, however, I do not believe it can. Section 13 of the Securities Act of 1933, 48 Stat. 84, explicitly estab lished a constructive-discovery rule for claims under §§11 and 12 of that Act: “No action shall be maintained to enforce any liability created under section 77k or 77l(a)(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence . . . .” 15 U.S. C. §77m. “[D]iscovery” in §77m obviously cannot mean constructive discovery, since that would render superfluous the phrase “or after such discovery should have been made by the exercise of reasonable diligence.” Ibid. With §77m al ready on the books, Congress added limitations periods in the 1934 Act, 15 U.S. C. §§78i(e), 78r(c), that did not contain similar qualifying language; instead, each estab lished a time bar that runs from “discovery” simpliciter. When Congress enacted §1658(b)(1) in 2002, establishing a limitations period for private actions for “fraud, deceit, manipulation, or contrivance in contravention of a regula tory requirement concerning the securities laws,” specifi cally including the 1933 and 1934 Acts, see 15 U.S. C. §78c(a)(47), it likewise included no constructive-discovery caveat. To interpret §1658(b)(1) as imposing a construc tive-discovery standard, one must therefore assume, con trary to common sense, that the same word means two very different things in the same statutory context of limitations periods for securities-fraud actions under the 1933 and 1934 Acts. Cite as: 559 U. S. ____ (2010) 3 Opinion of SCALIA, J. True, the sensible presumption that a word means the same thing when it appears more than once in the same statutory context—or even in the very same statute—is rebuttable. See General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 595–596 (2004). Context may make clear that in one instance the word carries one meaning, and in a second instance another. See, e.g., id., at 596– 597. But nothing in the context of §77m or §1658(b)(1) suggests that is the case. Both provisions impose limita tions periods for federal-law claims based on various false statements or omissions involving securities. The former applies to false statements or omissions in registration statements, §77k, and offers to sell securities, §77l(a)(2); the broad language of the latter (“claim[s] of fraud, deceit, manipulation, or contrivance in contravention of a regula tory requirement concerning the securities laws”) covers other “manipulative or deceptive device[s] or contriv ance[s]” made “in connection with the purchase or sale” of a security in violation of Securities and Exchange Com mission regulations, §78j(b), including SEC Rule 10b–5, 17 CFR §240.10b–5(b) (2009). There is good reason, more over, for providing an actual-discovery rule for private §10(b) claims but providing (explicitly) a constructive discovery rule for claims governed by §77m: The elements of §10(b) claims, which include scienter, are likely more difficult to discover than the elements of claims under §77k or §77l(a)(2), which do not, see Herman & MacLean v. Huddleston, 459 U.S. 375, 382 (1983); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 208–209 (1976); In re Morgan Stanley Information Fund Securities Litigation, 592 F.3d 347, 359 (CA2 2010). And a constructive-discovery stan dard may be easier to apply to the claims covered by §77m. Determining when the plaintiff should have uncovered an untrue assertion in a registration statement or prospectus is much simpler than assessing when a plaintiff should have learned that the defendant deliberately misled him 4 MERCK & CO. v. REYNOLDS Opinion of SCALIA, J. using a deceptive device covered by §10(b).1 Unable to identify anything in the statutory context that warrants giving “discovery” two meanings, the Court relies on the historical treatment of “discovery” in limita tions periods (particularly for fraud claims) as incorporat ing a constructive-discovery rule. Ante, at 8–10, 12. But that history proves only that “discovery” can carry that technical meaning, and that without §77m it would be reasonable (other things equal) to read it that way here. It does not show what “discovery” means in §1658(b)(1) in light of §77m’s codification of a constructive-discovery rule. In my view, the meaning of “discovery” in the broader context of limitations provisions is overcome by its meaning in the more specific context of the federal securi ties laws. The Court’s other reason for rejecting the more natural reading of §1658(b)(1) rests on a consensus among the Courts of Appeals before the provision’s enactment. Ante, at 11–12. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), the Court notes, we explicitly adopted the terms of §78i(e)—which like §1658(b)(1) refers only to discovery with no mention of reasonable diligence—as the limitations period for the private §10(b) cause of action we created. Id., at 364, and —————— 1 The Court appears to believe that §77m’s distinction between actual and constructive discovery has no bearing on §1658(b)(1)’s meaning because the latter does not itself draw the same distinction. Ante, at 11–12. The point, however, is that both provisions use the same word (“discovery”) with no contextual clue that it carries different meanings; and its use in §77m makes clear that the meaning is actual discovery. The Court suggests that usages of the same word in other statutes are irrelevant, ante, at 11–12, but of course it does not believe that. Its entire argument rests on the meaning courts have ascribed to “discov ery” in other limitations provisions (some enacted decades ago by state legislatures), ante, at 8–10. Yet while the Court considers that broader context, it provides no explanation for ignoring the more specific context of securities-fraud claims under the 1933 and 1934 Acts. Cite as: 559 U. S. ____ (2010) 5 Opinion of SCALIA, J. n. 9.2 Since every Circuit to address the issue between Lampf and §1658(b)(1)’s enactment 11 years later had held constructive discovery applicable to §10(b) claims—and since Congress copied §78i(e)’s key text into §1658(b)(1) with no indication it intended to adopt a contrary rule—the Court assumes Congress meant to codify (or at least not to disturb) that consensus. Ante, at 11–12. Even assuming that Congress intended to incorporate the Circuits’ views—which requires the further unrealistic assumption that a majority of each House knew of and agreed with the Courts of Appeals’ opinions—that would be entirely irrelevant. Congress’s collective intent (if such a thing even exists) cannot trump the text it enacts, and in any event we have no reliable way to ascertain that intent apart from reading the text. See Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___ (2010) (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 1). The only way in which the Circuits’ pre-2002 decisions might bear on §1658(b)(1)’s meaning is if all (or nearly all) of the Circuits had interpreted “discovery” in §78i(e) to mean constructive discovery. If that were true, one could say that those decisions had established the public mean ing of the term in this context—whether Congress knew of (or agreed with) that meaning or not. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U. S. ___, ___, n. 1 (2010) (SCALIA, J., concurring in part and concurring —————— 2 The Court notes that Lampf chose §78i(e)’s limitations period as the time bar for §10(b) claims, even though it was aware of §77m, 501 U.S., at 360, and n. 7, 364, and n. 9; see ante, at 10–11. But I fail to see how that provides any support for the Court’s interpretation. To the con trary, the fact that in enacting §1658(b)(1) Congress did not copy §77m’s constructive-discovery proviso—but decreed instead that “dis covery” alone starts the clock (as it had done in §78i(e), which we borrowed in Lampf)—is what makes equating §77m and §1658(b)(1) so implausible. 6 MERCK & CO. v. REYNOLDS Opinion of SCALIA, J. in judgment) (slip op., at 2, n. 1). But as amici note, that is not so. See Brief for Faculty at Law and Business Schools as Amici Curiae 23–29 (here inafter Faculty Brief). Some circuit cases cited by the Court and amici can conceivably be read as interpreting the language Lampf adopted from §78i(e) as imposing some form of constructive discovery. See Theoharous v. Fong, 256 F.3d 1219, 1228 (CA11 2001); Menowitz v. Brown, 991 F.2d 36, 41 (CA2 1993) (per curiam); Howard v. Haddad, 962 F.2d 328, 329–330 (CA4 1992); Anixter v. Home-Stake Production Co., 947 F.2d 897, 898–899 (CA10 1991), vacated on other grounds, 503 U.S. 978 (1992). Others, however, cannot be so construed. Two were not interpreting §78i(e) at all, but looked directly to §77m, despite Lampf’s explicit selection of §78i(e)’s terms. Great Rivers Cooperative of Southeastern Iowa v. Farmland Industries, Inc., 120 F.3d 893, 896 (CA8 1997); Topalian v. Ehrman, 954 F.2d 1125, 1135 (CA5 1992). Another court candidly acknowledged that §78i(e)’s text—unlike §77m’s—forecloses constructive discovery, but it nonethe less held that courts remain “free to apply to [§78i(e)] the judge-made doctrine of inquiry notice” as a “modest and traditional . . . exercise of judicial creativity,” since “Con gress could not have known when it enacted [§78i(e)] that this section would someday provide the statute of limita tions for a wide range of securities frauds.” Tregenza v. Great American Communications Co., 12 F.3d 717, 721– 722 (CA7 1993) (Posner, J.). The rest of the Circuits apparently had not decided the issue before §1658(b)(1)’s enactment. See Betz v. Trainer Wortham & Co., 519 F.3d 863, 874 (CA9 2008); New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 500–501, and n. 3 (CA6 2003); In re NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1325 (CA3 2002); see also Cooperativa de Ahorro y Credito Aguada v. Kidder, Peabody & Co., 129 F.3d 222, 224 (CA1 Cite as: 559 U. S. ____ (2010) 7 Opinion of SCALIA, J. 1997) (applying pre-Lampf rule under 15 U.S. C. §78aa– 1). And of those that were undecided, two had cast doubt on a constructive-discovery view in dicta—of which the omniscient Congress of the Court’s imagining should also have been aware. See Berry v. Valence Technology, Inc., 175 F.3d 699, 703–705 (CA9 1999); Gruber v. Price Water house, 911 F.2d 960, 964, n. 4 (CA3 1990). This motley assortment of approaches comes nowhere near establishing that the word “discovery” in §78i(e) meant constructive rather than actual discovery despite §77m. Absent any textual or contextual reason to read “discovery” differently in §1658(b)(1) and §77m, I would hold that only actual discovery suffices to start the limita tions period for §10(b) claims. Since Merck points to no evidence showing respondents actually discovered scienter more than two years before bringing this suit, I agree with the Court that the suit was not time barred. Respondents suggested at oral argument, Tr. of Oral Arg. 29, and their amici imply, see Faculty Brief 33–34, that in fraud-on-the-market cases there is little if any difference between actual and constructive discovery because of the presumption of reliance applicable in such cases, see Basic Inc. v. Levinson, 485 U.S. 224, 247 (1988). It seems to me Basic has no bearing on the question dis cussed here. A presumption of reliance upon market-price signals is not a presumption of knowledge of all public information, much less knowledge of nonpublic informa tion that a reasonably diligent investor would have inde pendently uncovered. In any event, whether or not a constructive-discovery standard will in many cases yield the same result, actual discovery is what §1658(b)(1) requires to start the limitations period

Private suits under of the Securities Exchange Act of 1934, 15 U.S. C. must be brought within “(1) 2 years after the discovery of the facts constituting the violation” or “(2) 5 years after such violation,” whichever comes first. 28 U.S. C. I agree with the Court that scienter is among the “facts constituting the violation” that a plaintiff must “discove[r]” for the limita tions period to begin. Ante, at 12–14 (internal quotation marks omitted). I also agree that respondents’ suit is timely, but for a reason different from the Court’s: Merck has not shown that respondents actually “discover[ed]” scienter more than two years before bringing suit. In ordinary usage, “discovery” occurs when one actually learns something new. See Webster’s New International Dictionary of the English Language 745 (2d ed. 1957) (defining “discovery” as “[f]inding out or ascertaining something previously unknown or unrecognized”). As the Court notes, however, ante, at 8–10, in the context of statutes of limitations “discovery” has long carried an additional meaning: It also occurs when a plaintiff, exer cising reasonable diligence, should have discovered the facts giving rise to his claim. See, e.g., ; 2 H. Wood, Limitations of 2 MERCK & CO. v. REYNOLDS Opinion of SCALIA, J. Actions pp. 1401–1408 (4th ed. 1916); Dawson, Undiscovered Fraud and Statutes of Limitation, and n. 77 (1933). Read in isola tion, “discovery” in might mean constructive discovery. In context, however, I do not believe it can. Section 13 of the Securities Act of 1933, explicitly estab lished a constructive-discovery rule for claims under and 12 of that Act: “No action shall be maintained to enforce any liability created under section 77k or 77l(a)(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence” 15 U.S. C. “[D]iscovery” in obviously cannot mean constructive discovery, since that would render superfluous the phrase “or after such discovery should have been made by the exercise of reasonable diligence.” With al ready on the books, Congress added limitations periods in the 1934 Act, 15 U.S. C. 78r(c), that did not contain similar qualifying language; instead, each estab lished a time bar that runs from “discovery” simpliciter. When Congress enacted in 2002, establishing a limitations period for private actions for “fraud, deceit, manipulation, or contrivance in contravention of a regula tory requirement concerning the securities laws,” specifi cally including the 1933 and 1934 Acts, see 15 U.S. C. it likewise included no constructive-discovery caveat. To interpret as imposing a construc tive-discovery standard, one must therefore assume, con trary to common sense, that the same word means two very different things in the same statutory context of limitations periods for securities-fraud actions under the 1933 and 1934 Acts. Cite as: 559 U. S. (2010) 3 Opinion of SCALIA, J. True, the sensible presumption that a word means the same thing when it appears more than once in the same statutory context—or even in the very same statute—is rebuttable. See General Dynamics Land Systems, Inc. v. Cline, Context may make clear that in one instance the word carries one meaning, and in a second instance another. See, e.g., at 596– 597. But nothing in the context of or suggests that is the case. Both provisions impose limita tions periods for federal-law claims based on various false statements or omissions involving securities. The former applies to false statements or omissions in registration statements, and offers to sell securities, the broad language of the latter (“claim[s] of fraud, deceit, manipulation, or contrivance in contravention of a regula tory requirement concerning the securities laws”) covers other “manipulative or deceptive device[s] or contriv ance[s]” made “in connection with the purchase or sale” of a security in violation of Securities and Exchange Com mission regulations, including SEC Rule 10b–5, 17 CFR (2009). There is good reason, more over, for providing an actual-discovery rule for private claims but providing (explicitly) a constructive discovery rule for claims governed by : The elements of claims, which include scienter, are likely more difficult to discover than the elements of claims under or which do not, see Herman & MacLean v. Huddleston, ; Ernst & Ernst v. Hochfelder, ; In re Morgan Stanley Information Fund Securities Litigation, 592 F.3d 347, 359 (CA2 2010). And a constructive-discovery stan dard may be easier to apply to the claims covered by Determining when the plaintiff should have uncovered an untrue assertion in a registration statement or prospectus is much simpler than assessing when a plaintiff should have learned that the defendant deliberately misled him 4 MERCK & CO. v. REYNOLDS Opinion of SCALIA, J. using a deceptive device covered by1 Unable to identify anything in the statutory context that warrants giving “discovery” two meanings, the Court relies on the historical treatment of “discovery” in limita tions periods (particularly for fraud claims) as incorporat ing a constructive-discovery rule. Ante, at 8–10, 12. But that history proves only that “discovery” can carry that technical meaning, and that without it would be reasonable (other things equal) to read it that way here. It does not show what “discovery” means in in light of ’s codification of a constructive-discovery rule. In my view, the meaning of “discovery” in the broader context of limitations provisions is overcome by its meaning in the more specific context of the federal securi ties laws. The Court’s other reason for rejecting the more natural reading of rests on a consensus among the Courts of Appeals before the provision’s enactment. Ante, at 11–12. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, the Court notes, we explicitly adopted the terms of like refers only to discovery with no mention of reasonable diligence—as the limitations period for the private cause of action we created. and —————— 1 The Court appears to believe that ’s distinction between actual and constructive discovery has no bearing on ’s meaning because the latter does not itself draw the same distinction. Ante, at 11–12. The point, however, is that both provisions use the same word (“discovery”) with no contextual clue that it carries different meanings; and its use in makes clear that the meaning is actual discovery. The Court suggests that usages of the same word in other statutes are irrelevant, ante, at 11–12, but of course it does not believe that. Its entire argument rests on the meaning courts have ascribed to “discov ery” in other limitations provisions (some enacted decades ago by state legislatures), ante, at 8–10. Yet while the Court considers that broader context, it provides no explanation for ignoring the more specific context of securities-fraud claims under the 1933 and 1934 Acts. Cite as: 559 U. S. (2010) 5 Opinion of SCALIA, J. n. 9.2 Since every Circuit to address the issue between Lampf and ’s enactment 11 years later had held constructive discovery applicable to claims—and since Congress copied key text into with no indication it intended to adopt a contrary rule—the Court assumes Congress meant to codify (or at least not to disturb) that consensus. Ante, at 11–12. Even assuming that Congress intended to incorporate the Circuits’ views—which requires the further unrealistic assumption that a majority of each House knew of and agreed with the Courts of Appeals’ opinions—that would be entirely irrelevant. Congress’s collective intent (if such a thing even exists) cannot trump the text it enacts, and in any event we have no reliable way to ascertain that intent apart from reading the text. See Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. (2010) (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 1). The only way in which the Circuits’ pre-2002 decisions might bear on ’s meaning is if all (or nearly all) of the Circuits had interpreted “discovery” in to mean constructive discovery. If that were true, one could say that those decisions had established the public mean ing of the term in this context—whether Congress knew of (or agreed with) that meaning or not. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U. S. n. 1 (2010) (SCALIA, J., concurring in part and concurring —————— 2 The Court notes that Lampf chose limitations period as the time bar for claims, even though it was aware of 501 U.S., at 360, and n. 7, 364, and n. 9; see ante, at 10–11. But I fail to see how that provides any support for the Court’s interpretation. To the con trary, the fact that in enacting Congress did not copy ’s constructive-discovery proviso—but decreed instead that “dis covery” alone starts the clock (as it had done in which we borrowed in Lampf)—is what makes equating and so implausible. 6 MERCK & CO. v. REYNOLDS Opinion of SCALIA, J. in judgment) (slip op., at 2, n. 1). But as amici note, that is not so. See Brief for Faculty at Law and Business Schools as Amici Curiae 23–29 (here inafter Faculty Brief). Some circuit cases cited by the Court and amici can conceivably be read as interpreting the language Lampf adopted from as imposing some form of constructive discovery. See Theoharous v. Fong, ; Menowitz v. Brown, ; Howard v. Haddad, ; Anixter v. Home-Stake Production Co., 898–899 vacated on other grounds, Others, however, cannot be so construed. Two were not interpreting at all, but looked directly to despite Lampf’s explicit selection of terms. Great Rivers Cooperative of Southeastern ; Topalian v. Ehrman, Another court candidly acknowledged that text—unlike ’s—forecloses constructive discovery, but it nonethe less held that courts remain “free to apply to [] the judge-made doctrine of inquiry notice” as a “modest and traditional exercise of judicial creativity,” since “Con gress could not have known when it enacted [] that this section would someday provide the statute of limita tions for a wide range of securities frauds.” Tregenza v. Great American Communications Co., 721– 722 (Posner, J.). The rest of the Circuits apparently had not decided the issue before ’s enactment. See ; New England Health Care Employees Pension ; In re NAHC, Inc. Securities Litigation, 1325 (CA3 2002); see also Cooperativa de Ahorro y Credito (CA1 Cite as: 559 U. S. (2010) 7 Opinion of SCALIA, J. ) (applying pre-Lampf rule under 15 U.S. C. 1). And of those that were undecided, two had cast doubt on a constructive-discovery view in dicta—of which the omniscient Congress of the Court’s imagining should also have been aware. See ; This motley assortment of approaches comes nowhere near establishing that the word “discovery” in meant constructive rather than actual discovery despite Absent any textual or contextual reason to read “discovery” differently in and I would hold that only actual discovery suffices to start the limita tions period for claims. Since Merck points to no evidence showing respondents actually discovered scienter more than two years before bringing this suit, I agree with the Court that the suit was not time barred. Respondents suggested at oral argument, Tr. of Oral Arg. 29, and their amici imply, see Faculty Brief 33–34, that in fraud-on-the-market cases there is little if any difference between actual and constructive discovery because of the presumption of reliance applicable in such cases, see Basic 485 U.S. It seems to me Basic has no bearing on the question dis cussed here. A presumption of reliance upon market-price signals is not a presumption of knowledge of all public information, much less knowledge of nonpublic informa tion that a reasonably diligent investor would have inde pendently uncovered. In any event, whether or not a constructive-discovery standard will in many cases yield the same result, actual discovery is what requires to start the limitations period

Justice Stevens

majority

Brown v. Legal Foundation of Wash.

2003-03-26

https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/

https://www.courtlistener.com/api/rest/v3/clusters/127904/

2002-035

The State of Washington, like every other State in the Union, uses interest on lawyers' trust accounts (IOLTA) to pay for legal services provided to the needy. Some IOLTA programs were created by statute, but in Washington, as in most other States, the IOLTA program was established by the State Supreme Court pursuant to its authority to regulate the practice of law. In Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998), a case involving the Texas IOLTA program, we held "that the interest income generated by funds held in IOLTA accounts is the `private property' of the owner of the principal." Id., at 172. We did not, however, express any opinion on the question whether the income had been "taken" by the State or "as to the amount of `just compensation,' if any, due respondents." Ibid. We now confront those questions. I As we explained in Phillips, id., at 160-161, in the course of their legal practice, attorneys are frequently required to hold clients' funds for various lengths of time. It has long been recognized that they have a professional and fiduciary obligation to avoid commingling their clients' money with *221 their own, but it is not unethical to pool several clients' funds in a single trust account. Before 1980 client funds were typically held in non-interest-bearing federally insured checking accounts. Because federal banking regulations in effect since the Great Depression prohibited banks from paying interest on checking accounts, the value of the use of the clients' money in such accounts inured to the banking institutions. In 1980, Congress authorized federally insured banks to pay interest on a limited category of demand deposits referred to as "NOW accounts." See 87 Stat. 342, 12 U.S.C. § 1832. This category includes deposits made by individuals and charitable organizations, but does not include those made by for-profit corporations or partnerships unless the deposits are made pursuant to a program under which charitable organizations have "the exclusive right to the interest."[1] In response to the change in federal law, Florida adopted the first IOLTA program in 1981 authorizing the use of NOW accounts for the deposit of client funds, and providing that all of the interest on such accounts be used for charitable purposes. Every State in the Nation and the District of Columbia have followed Florida's lead and adopted an IOLTA program, either through their legislatures or their highest courts.[2] The result is that, whereas before 1980 the banks *222 retained the value of the use of the money deposited in non-interest-bearing client trust accounts, today, because of the adoption of IOLTA programs, that value is transferred to *223 charitable entities providing legal services for the poor. The aggregate value of those contributions in 2001 apparently exceeded $200 million.[3] In 1984, the Washington Supreme Court established its IOLTA program by amending its Rules of Professional Conduct. IOLTA Adoption Order, 102 Wash. 2d 1101. The amendments were adopted after over two years of deliberation, during which the court received hundreds of public comments and heard oral argument from the Seattle-King County Bar Association, designated to represent the proponents of the Rule, and the Walla Walla County Bar Association, designated to represent the opponents of the Rule. In its opinion explaining the order, the court noted that earlier Rules had required attorneys to hold client trust funds "in accounts separate from their own funds," id., at 1102, and had prohibited the use of such funds for the lawyer's own pecuniary advantage, but did not address the question whether or how such funds should be invested. Commenting on then-prevalent practice the court observed: "In conformity with trust law, however, lawyers usually invest client trust funds in separate interest-bearing accounts and pay the interest to the clients whenever the trust funds are large enough in amount or to be held for a long enough period of time to make such investments economically feasible, that is, when the amount of interest earned exceeds the bank charges and costs of setting up the account. However, when trust funds are so nominal *224 in amount or to be held for so short a period that the amount of interest that could be earned would not justify the cost of creating separate accounts, most attorneys simply deposit the funds in a single noninterest-bearing trust checking account containing all such trust funds from all their clients. The funds in such accounts earn no interest for either the client or the attorney. The banks, in contrast, have received the interest-free use of client money." Ibid. The court then described the four essential features of its IOLTA program: (a) the requirement that all client funds be deposited in interest-bearing trust accounts, (b) the requirement that funds that cannot earn net interest for the client be deposited in an IOLTA account, (c) the requirement that the lawyers direct the banks to pay the net interest on the IOLTA accounts to the Legal Foundation of Washington (Foundation), and (d) the requirement that the Foundation must use all funds received from IOLTA accounts for tax-exempt law-related charitable and educational purposes. It explained: "1. All client funds paid to any Washington lawyer or law firm must be deposited in identifiable interest-bearing trust accounts separate from any accounts containing non-trust money of the lawyer or law firm. The program is mandatory for all Washington lawyers. New CPR DR 9-102(A). "2. The new rule provides for two kinds of interest-bearing trust accounts. The first type of account bears interest to be paid, net of any transaction costs, to the client. This type of account may be in the form of either separate accounts for each client or a single pooled account with subaccounting to determine how much interest is earned for each client. The second type of account is a pooled interest-bearing account with the interest to be paid directly by the financial institution *225 to the Legal Foundation of Washington (hereinafter the Foundation), a nonprofit entity to be established pursuant to the order following this opinion. New CPR DR 9-102(C)(1), (2). "3. Determining whether client funds should be deposited in accounts bearing interest for the benefit of the client or the Foundation is left to the discretion of each lawyer, but the new rule specifies that the lawyer shall base his decision solely on whether the funds could be invested to provide a positive net return to the client. This determination is made by considering several enumerated factors: the amount of interest the funds would earn during the period they are expected to be deposited, the cost of establishing and administering the account, and the capability of financial institutions to calculate and pay interest to individual clients. New CPR DR 9-102(C)(3). . . . . . "5. Lawyers and law firms must direct the depository institution to pay interest or dividends, net of any service charges or fees, to the Foundation, and to send certain regular reports to the Foundation and the lawyer or law firm depositing the funds. New CPR DR 9-102(C)(4). "The Foundation must use all funds received from lawyers' trust accounts for tax-exempt law-related charitable and educational purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, as directed by this court. See Articles of Incorporation and Bylaws of the Legal Foundation of Washington, 100 Wash. 2d, Advance Sheet 13, at ii, vi (1984)." Id., at 1102-1104. In its opinion the court responded to three objections that are relevant to our inquiry in this case. First, it rejected the contention that the new program "constitutes an unconstitutional *226 taking of property without due process or just compensation." Id., at 1104. Like other State Supreme Courts that had considered the question, it distinguished our decision in Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980), on the ground that the new "`program creates income where there had been none before, and the income thus created would never benefit the client under any set of circumstances.'" 102 Wash. 2d, at 1108 (quoting In re Interest on Trust Accounts, 402 So. 2d 389, 395 (Fla. 1981)). Second, it rejected the argument that it was unethical for lawyers to rely on any factor other than the client's best interests when deciding whether to deposit funds in an IOLTA account rather than an account that would generate interest for the client. The court endorsed, and added emphasis to, the response to that argument set forth in the proponents' reply brief: "`Although the proposed amendments list several factors an attorney should consider in deciding how to invest his clients' trust funds, ... all of these factors are really facets of a single question: Can the client's money be invested so that it will produce a net benefit for the client? If so, the attorney must invest it to earn interest for the client. Only if the money cannot earn net interest for the client is the money to go into an IOLTA account.' "Reply Brief of Proponents, at 14. This is a correct statement of an attorney's duty under trust law, as well as a proper interpretation of the proposed rule as published for public comment. However, in order to make it even clearer that IOLTA funds are only those funds that cannot, under any circumstances, earn net interest (after deducting transaction and administrative costs and bank fees) for the client, we have amended the proposed rule accordingly. See new CPR DR 9-102(C)(3). The new rule makes it absolutely clear that the enumerated *227 factors are merely facets of the ultimate question of whether client funds could be invested profitably for the benefit of clients. If they can, then investment for the client is mandatory." 102 Wash. 2d, at 1113-1114. The court also rejected the argument that it had failed to consider the significance of advances in computer technology that, in time, may convert IOLTA participation into an unconstitutional taking of property that could have been distributed to the client. It pointed to the fact that the Rule expressly requires attorneys to give consideration to the capability of financial institutions to calculate and pay interest on individual accounts, and added: "Thus, as cost effective subaccounting services become available, making it possible to earn net interest for clients on increasingly smaller amounts held for increasingly shorter periods of time, more trust money will have to be invested for the clients' benefit under the new rule. The rule is therefore self-adjusting and is adequately designed to accommodate changes in banking technology without running afoul of the state or federal constitutions." Id., at 1114. Given the court's explanation of its Rule, it seems apparent that a lawyer who mistakenly uses an IOLTA account as a depositary for money that could earn interest for the client would violate the Rule. Hence, the lawyer will be liable to the client for any lost interest, however minuscule the amount might be. In 1995, the Washington Supreme Court amended its IOLTA Rules to make them applicable to Limited Practice Officers (LPOs) as well as lawyers. LPOs are nonlawyers who are licensed to act as escrowees in the closing of real estate transactions. Like lawyers, LPOs often temporarily control the funds of clients. II This action was commenced by a public interest law firm and four citizens to enjoin state officials from continuing to *228 require LPOs to deposit trust funds into IOLTA accounts. Because the Court of Appeals held that the firm and two of the individuals do not have standing,[4]Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835, 848-850 (CA9 2001), and since that holding was not challenged in this Court, we limit our discussion to the claims asserted by petitioners Allen Brown and Greg Hayes. The defendants, respondents in this Court, are the justices of the Washington Supreme Court, the Foundation, which receives and redistributes the interest on IOLTA accounts, and the president of the Foundation. In their amended complaint, Brown and Hayes describe the IOLTA program, with particular reference to its application to LPOs and to some of the activities of recipient organizations that have received funds from the Foundation. Brown and Hayes also both allege that they regularly purchase and sell real estate and in the course of such transactions they deliver funds to LPOs who are required to deposit them in IOLTA accounts. They object to having the interest on those funds "used to finance the Recipient Organizations" and "to anyone other than themselves receiving the interest derived from those funds." App. 25. The first count of their complaint alleges that "being forced to associate with the Recipient Organizations" violates their First Amendment rights, id., at 25, 27-28; the second count alleges that the "taking" of the interest earned on their funds in the IOLTA accounts violates the Just Compensation Clause of *229 the Fifth Amendment, id., at 28-29; and the third count alleges that the requirement that client funds be placed in IOLTA accounts is "an illegal taking of the beneficial use of those funds," id., at 29. The prayer for relief sought a refund of interest earned on the plaintiffs' money that had been placed in IOLTA accounts, a declaration that the IOLTA Rules are unconstitutional, and an injunction against their enforcement against LPOs. See id., at 30. Most of the pretrial discovery related to the question whether the 1995 Amendment to the IOLTA Rules had indirectly lessened the earnings of LPOs because LPOs no longer receive certain credits that the banks had provided them when banks retained the interest earned on escrowed funds. Each of the petitioners, however, did identify a specific transaction in which interest on his escrow deposit was paid to the Foundation. Petitioner Hayes and a man named Fossum made an earnest money deposit of $2,000 on August 14, 1996, and a further payment of $12,793.32 on August 28, 1996, in connection with a real estate purchase that was closed on August 30, 1996. Id., at 117-118. The money went into an IOLTA account. Presumably those funds, half of which belonged to Fossum, were used to pay the sales price, "to pay off liens and obtain releases to clear the title to the property being conveyed." Id., at 98. The record does not explain exactly how or when the ultimate recipients of those funds received or cashed the checks issued to them by the escrowee, but the parties apparently agree that the deposits generated some interest on principal that was at least in part owned by Hayes during the closing. In connection with a real estate purchase that closed on May 1, 1997, petitioner Brown made a payment of $90,521.29 that remained in escrow for two days, see id., at 53; he estimated that the interest on that deposit amounted to $4.96, but he did not claim that he would have received any interest *230 if the IOLTA Rules had not been in place.[5] The record thus suggests, although the facts are not crystal clear, that funds deposited by each of the petitioners generated some interest that was ultimately paid to the Foundation. It also seems clear that without IOLTA those funds would not have produced any net interest for either of the petitioners. After discovery, the District Court granted the defendants' motion for summary judgment. As a factual matter the court concluded "that in no event can the client-depositors make any net returns on the interest accrued in these accounts. Indeed, if the funds were able to make any net return, they would not be subject to the IOLTA program." Washington Legal Foundation v. Legal Foundation of Washington, No. C97-0146C (WD Wash., Jan. 30, 1998), App. to Pet. for Cert. 94a. As a legal matter, the court concluded that the constitutional issue focused on what an owner has lost, not what the "`taker'" has gained, and that petitioners Hayes and Brown had "lost nothing." Ibid. While the case was on appeal, we decided Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998). Relying on our opinion in that case, a three-judge panel of the Ninth Circuit decided that the IOLTA program caused a taking of petitioners' property and that further proceedings were necessary to determine whether they are entitled to just compensation. The panel concluded: "In sum, we hold that the interest generated by IOLTA pooled trust accounts is property of the clients and customers whose money is deposited into trust, and that a government appropriation of that interest for public purposes is a taking entitling them to just compensation under the Fifth Amendment. But just compensation for the takings may be less than the amount *231 of the interest taken, or nothing, depending on the circumstances, so determining the remedy requires a remand." Washington Legal Foundation v. Legal Foundation of Washington, 236 F.3d 1097, 1115 (2001). The Court of Appeals then reconsidered the case en banc. 271 F.3d 835 (CA9 2001). The en banc majority affirmed the judgment of the District Court, reasoning that, under the ad hoc approach applied in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), there was no taking because petitioners had suffered neither an actual loss nor an interference with any investment-backed expectations, and that the regulation of the use of their property was permissible. Moreover, in the majority's view, even if there were a taking, the just compensation due was zero. The three judges on the original panel, joined by Judge Kozinski, dissented. In their view, the majority's reliance on Penn Central was misplaced because this case involves a "per se" taking rather than a regulatory taking. 271 F.3d, at 865-866. The dissenters adhered to the panel's view that a remand is necessary in order to decide whether any compensation is due. In their petition for certiorari, Brown and Hayes asked us not only to resolve the disagreement between the majority and the dissenters in the Ninth Circuit about the taking issue, but also to answer a question that none of those judges reached, namely, whether injunctive relief is available because the small amounts to which they claim they are entitled render recovery through litigation impractical. We granted certiorari. 536 U.S. 903 (2002). III While it confirms the State's authority to confiscate private property, the text of the Fifth Amendment imposes two conditions on the exercise of such authority: the taking must be for a "public use" and "just compensation" must be paid *232 to the owner.[6] In this case, the first condition is unquestionably satisfied. If the State had imposed a special tax, or perhaps a system of user fees, to generate the funds to finance the legal services supported by the Foundation, there would be no question as to the legitimacy of the use of the public's money.[7] The fact that public funds might pay the legal fees of a lawyer representing a tenant in a dispute with a landlord who was compelled to contribute to the program would not undermine the public character of the "use" of the funds. Provided that she receives just compensation for the taking of her property, a conscientious pacifist has no standing to object to the government's decision to use the property she formerly owned for the production of munitions. Even if there may be occasional misuses of IOLTA funds, the overall, dramatic success of these programs in serving the compelling interest in providing legal services to literally millions of needy Americans certainly qualifies the Foundation's distribution of these funds as a "public use" within the meaning of the Fifth Amendment. *233 Before moving on to the second condition, the "just compensation" requirement, we must address the type of taking, if any, that this case involves. As we made clear just last term: "The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property. Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by `essentially ad hoc, factual inquiries,' Penn Central, 438 U. S., at 124, designed to allow `careful examination and weighing of all the relevant circumstances.' Palazzolo [v. Rhode Island], 533 U. S. [606,] 636 [2001] (O'CONNOR, J., concurring). "When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United States v. Pewee Coal Co., 341 U.S. 114, 115 (1951), regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United States v. General Motors Corp., 323 U.S. 373 (1945), United States v. Petty Motor Co., 327 U.S. 372 (1946). Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for *234 apartment tenants, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); or when its planes use private airspace to approach a government airport, United States v. Causby, 328 U.S. 256 (1946), it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting tenants unwilling to pay a higher rent, Block v. Hirsh, 256 U.S. 135 (1921); that bans certain private uses of a portion of an owner's property, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987); or that forbids the private use of certain airspace, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), does not constitute a categorical taking. `The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions.' Yee v. Escondido, 503 U.S. 519, 523 (1992). See also Loretto, 458 U. S., at 440; Keystone, 480 U. S., at 489, n. 18." Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321-323 (2002). In their complaint, Brown and Hayes separately challenge (1) the requirement that their funds must be placed in an IOLTA account (Count III) and (2) the later transfers to the Foundation of whatever interest is thereafter earned (Count II). The former is merely a transfer of principal and therefore does not effect a confiscation of any interest. Conceivably it could be viewed as the first step in a "regulatory taking" which should be analyzed under the factors set forth in our opinion in Penn Central. Under such an analysis, however, it is clear that there would be no taking because the transaction had no adverse economic impact on petitioners and did not interfere with any investment-backed expectation. See 438 U.S., at 124. *235 Even the dissenters in the Court of Appeals did not disagree with the proposition that Penn Central forecloses the conclusion that there was a regulatory taking effected by the Washington IOLTA program. In their view, however, the proper focus was on the second step, the transfer of interest from the IOLTA account to the Foundation. It was this step that the dissenters likened to the kind of "per se" taking that occurred in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). We agree that a per se approach is more consistent with the reasoning in our Phillips opinion than Penn Central's ad hoc analysis. As was made clear in Phillips, the interest earned in the IOLTA accounts "is the `private property' of the owner of the principal." 524 U.S., at 172. If this is so, the transfer of the interest to the Foundation here seems more akin to the occupation of a small amount of rooftop space in Loretto. We therefore assume that Brown and Hayes retained the beneficial ownership of at least a portion of their escrow deposits until the funds were disbursed at the closings, that those funds generated some interest in the IOLTA accounts, and that their interest was taken for a public use when it was ultimately turned over to the Foundation. As the dissenters in the Ninth Circuit explained, though, this does not end our inquiry. Instead, we must determine whether any "just compensation" is due. IV "The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985). All of the Circuit Judges and District Judges who have confronted the compensation question, both in this case and in Phillips, have agreed that the "just compensation" required by the Fifth Amendment is measured by the property owner's loss *236 rather than the government's gain. This conclusion is supported by consistent and unambiguous holdings in our cases. Most frequently cited is Justice Holmes' characteristically terse statement that "the question is what has the owner lost, not what has the taker gained." Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910). Also directly in point is Justice Brandeis' explanation of why a mere technical taking does not give rise to an obligation to pay compensation: "We have no occasion to determine whether in law the President took possession and assumed control of the Marion & Rye Valley Railway. For even if there was technically a taking, the judgment for defendant was right. Nothing was recoverable as just compensation, because nothing of value was taken from the company; and it was not subjected by the Government to pecuniary loss." Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 282 (1926). A few years later we again noted that the private party "is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more." Olson v. United States, 292 U.S. 246, 255 (1934). In Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), although there was disagreement within the Court concerning the proper measure of the owner's loss when a leasehold interest was condemned, it was common ground that the government should pay "not for what it gets but for what the owner loses." Id., at 23 (Douglas, J., dissenting). Moreover, in his opinion for the majority, Justice Frankfurter made it clear that, given "the liability of all property to condemnation for the common good," an owner's nonpecuniary losses attributable to "his unique need for property or idiosyncratic attachment to it, like loss due to an exercise of *237 the police power, is properly treated as part of the burden of common citizenship." Id., at 5. Applying the teaching of these cases to the question before us, it is clear that neither Brown nor Hayes is entitled to any compensation for the nonpecuniary consequences of the taking of the interest on his deposited funds, and that any pecuniary compensation must be measured by his net losses rather than the value of the public's gain. For that reason, both the majority[8] and the dissenters[9] on the Court of Appeals agreed that if petitioners' net loss was zero, the compensation that is due is also zero. V Posing hypothetical cases that explain why a lawyer might mistakenly deposit funds in an IOLTA account when those funds might have produced net earnings for the client, the Ninth Circuit dissenters concluded that a remand of this case is necessary to decide whether petitioners are entitled to any compensation. "Even though when funds are deposited into IOLTA accounts, the lawyers expect them to earn less than it would cost to distribute the interest, that expectation can turn out to be incorrect, as discussed above. Several hypothetical cases illustrate the complexities of the remedies, which need further factual development on remand. Suppose $2,000 is deposited into a lawyer's trust account paying 5% and stays there for two days. It earns about $.55, probably well under the cost of a stamp and envelope, along with clerical expenses, needed to send the $.55 to the client. In that case, the client's financial loss from the taking, if a reasonable charge is *238 made for the administrative expense, is nothing. The fair market value of a right to receive $.55 by spending perhaps $5.00 to receive it would be nothing. On the other hand, suppose, hypothetically, that the amount deposited into the trust account is $30,000, and it stays there for 6 days. The client's loss here would be about $29.59 if he does not get the interest, which may well exceed the reasonable administrative expense of paying it to him out of a common fund. It is hard to see how just compensation could be zero in this hypothetical taking, even though it would be in the $2,000 for 2 days hypothetical taking. It may be that the difference between what a pooled fund earns, and what the individual clients and escrow companies lose, adds up to enough to sustain a valuable IOLTA program while not depriving any of the clients and customers of just compensation for the takings. This is a practical question entirely undeveloped on this record. We leave it for the parties to consider during the remedial phase of this litigation." 271 F.3d, at 883.[10] *239 These hypotheticals persuade us that lawyers and LPOs may occasionally deposit client funds in an IOLTA account when those funds could have produced net interest for their clients. It does not follow, however, that there is a need for further hearings to determine whether Brown or Hayes is entitled to any compensation from the respondents. The Rules adopted and administered by the Washington Supreme Court unambiguously require lawyers and LPOs to deposit client funds in non-IOLTA accounts whenever those funds could generate net earnings for the client. See supra, at 224-225. Thus, if the LPOs who deposited petitioners' money in IOLTA accounts could have generated net income, the LPOs violated the court's Rules. Any conceivable net loss to petitioners was the consequence of the LPOs' incorrect private decisions rather than any state action. Such mistakes may well give petitioners a valid claim against the LPOs, but they would provide no support for a claim for compensation from the State, or from any of the respondents. The District Court was therefore entirely correct when it made the factual finding "that in no event can the client-depositors make any net return on the interest accrued in *240 these accounts. Indeed, if the funds were able to make any net return, they would not be subject to the IOLTA program." No. C97-0146C (WD Wash., Jan. 30, 1998), App. to Pet. for Cert. 94a. The categorical requirement in Washington's IOLTA program that mandates the choice of a non-IOLTA account when net interest can be generated for the client provided an independent ground for the en banc court's judgment. It held that the program did "not work a constitutional violation with regard to Brown's and Hayes's property: Even if their property was taken, the Fifth Amendment only protects against a taking without just compensation. Because of the way the IOLTA program operates, the compensation due Brown and Hayes for any taking of their property would be nil. There was therefore no constitutional violation when they were not compensated." 271 F.3d, at 861-862. We agree with that holding.[11] VI To recapitulate: It is neither unethical nor illegal for lawyers to deposit their clients' funds in a single bank account. A state law that requires client funds that could not otherwise generate net earnings for the client to be deposited in an IOLTA account is not a "regulatory taking." A law that requires that the interest on those funds be transferred to a different owner for a legitimate public use, however, could be a per se taking requiring the payment of "just compensation" to the client. Because that compensation is measured by the owner's pecuniary loss — which is zero whenever the Washington law is obeyed — there has been no violation of the Just Compensation Clause of the Fifth Amendment in this case. It is therefore unnecessary to discuss the remedial *241 question presented in the certiorari petition. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

The State of Washington, like every other State in the Union, uses interest on lawyers' trust accounts (IOLTA) to pay for legal services provided to the needy. Some IOLTA programs were created by statute, but in Washington, as in most other States, the IOLTA program was established by the State Supreme Court pursuant to its authority to regulate the practice of law. In a case involving the Texas IOLTA program, we held "that the interest income generated by funds held in IOLTA accounts is the `private property' of the owner of the principal." We did not, however, express any opinion on the question whether the income had been "taken" by the State or "as to the amount of `just compensation,' if any, due respondents." We now confront those questions. I As we explained in Phillips, in the course of their legal practice, attorneys are frequently required to hold clients' funds for various lengths of time. It has long been recognized that they have a professional and fiduciary obligation to avoid commingling their clients' money with *221 their own, but it is not unethical to pool several clients' funds in a single trust account. Before 1980 client funds were typically held in non-interest-bearing federally insured checking accounts. Because federal banking regulations in effect since the Great Depression prohibited banks from paying interest on checking accounts, the value of the use of the clients' money in such accounts inured to the banking institutions. In 1980, Congress authorized federally insured banks to pay interest on a limited category of demand deposits referred to as "NOW accounts." See This category includes deposits made by individuals and charitable organizations, but does not include those made by for-profit corporations or partnerships unless the deposits are made pursuant to a program under which charitable organizations have "the exclusive right to the interest."[1] In response to the change in federal law, Florida adopted the first IOLTA program in 1981 authorizing the use of NOW accounts for the deposit of client funds, and providing that all of the interest on such accounts be used for charitable purposes. Every State in the Nation and the District of Columbia have followed Florida's lead and adopted an IOLTA program, either through their legislatures or their highest courts.[2] The result is that, whereas before 1980 the banks *222 retained the value of the use of the money deposited in non-interest-bearing client trust accounts, today, because of the adoption of IOLTA programs, that value is transferred to *223 charitable entities providing legal services for the poor. The aggregate value of those contributions in apparently exceeded $200 million.[3] In 1984, the Washington Supreme Court established its IOLTA program by amending its Rules of Professional Conduct. IOLTA Adoption Order, The amendments were adopted after over two years of deliberation, during which the court received hundreds of public comments and heard oral argument from the Seattle-King County Bar Association, designated to represent the proponents of the Rule, and the Walla Walla County Bar Association, designated to represent the opponents of the Rule. In its opinion explaining the order, the court noted that earlier Rules had required attorneys to hold client trust funds "in accounts separate from their own funds," and had prohibited the use of such funds for the lawyer's own pecuniary advantage, but did not address the question whether or how such funds should be invested. Commenting on then-prevalent practice the court observed: "In conformity with trust law, however, lawyers usually invest client trust funds in separate interest-bearing accounts and pay the interest to the clients whenever the trust funds are large enough in amount or to be held for a long enough period of time to make such investments economically feasible, that is, when the amount of interest earned exceeds the bank charges and costs of setting up the account. However, when trust funds are so nominal *224 in amount or to be held for so short a period that the amount of interest that could be earned would not justify the cost of creating separate accounts, most attorneys simply deposit the funds in a single noninterest-bearing trust checking account containing all such trust funds from all their clients. The funds in such accounts earn no interest for either the client or the attorney. The banks, in contrast, have received the interest-free use of client money." The court then described the four essential features of its IOLTA program: (a) the requirement that all client funds be deposited in interest-bearing trust accounts, (b) the requirement that funds that cannot earn net interest for the client be deposited in an IOLTA account, (c) the requirement that the lawyers direct the banks to pay the net interest on the IOLTA accounts to the Legal Foundation of Washington (Foundation), and (d) the requirement that the Foundation must use all funds received from IOLTA accounts for tax-exempt law-related charitable and educational purposes. It explained: "1. All client funds paid to any Washington lawyer or law firm must be deposited in identifiable interest-bearing trust accounts separate from any accounts containing non-trust money of the lawyer or law firm. The program is mandatory for all Washington lawyers. New CPR DR 9-102(A). "2. The new rule provides for two kinds of interest-bearing trust accounts. The first type of account bears interest to be paid, net of any transaction costs, to the client. This type of account may be in the form of either separate accounts for each client or a single pooled account with subaccounting to determine how much interest is earned for each client. The second type of account is a pooled interest-bearing account with the interest to be paid directly by the financial institution *225 to the Legal Foundation of Washington (hereinafter the Foundation), a nonprofit entity to be established pursuant to the order following this opinion. New CPR DR 9-102(C)(1), (2). "3. Determining whether client funds should be deposited in accounts bearing interest for the benefit of the client or the Foundation is left to the discretion of each lawyer, but the new rule specifies that the lawyer shall base his decision solely on whether the funds could be invested to provide a positive net return to the client. This determination is made by considering several enumerated factors: the amount of interest the funds would earn during the period they are expected to be deposited, the cost of establishing and administering the account, and the capability of financial institutions to calculate and pay interest to individual clients. New CPR DR 9-102(C)(3). "5. Lawyers and law firms must direct the depository institution to pay interest or dividends, net of any service charges or fees, to the Foundation, and to send certain regular reports to the Foundation and the lawyer or law firm depositing the funds. New CPR DR 9-102(C)(4). "The Foundation must use all funds received from lawyers' trust accounts for tax-exempt law-related charitable and educational purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, as directed by this court. See Articles of Incorporation and Bylaws of the Legal Foundation of Washington, 100 Wash. 2d, Advance Sheet 13, at ii, vi (1984)." -1104. In its opinion the court responded to three objections that are relevant to our inquiry in this case. First, it rejected the contention that the new program "constitutes an unconstitutional *226 taking of property without due process or just compensation." Like other State Supreme Courts that had considered the question, it distinguished our decision in Webb's Fabulous Pharmacies, on the ground that the new "`program creates income where there had been none before, and the income thus created would never benefit the client under any set of circumstances.'" ). Second, it rejected the argument that it was unethical for lawyers to rely on any factor other than the client's best interests when deciding whether to deposit funds in an IOLTA account rather than an account that would generate interest for the client. The court endorsed, and added emphasis to, the response to that argument set forth in the proponents' reply brief: "`Although the proposed amendments list several factors an attorney should consider in deciding how to invest his clients' trust funds, all of these factors are really facets of a single question: Can the client's money be invested so that it will produce a net benefit for the client? If so, the attorney must invest it to earn interest for the client. Only if the money cannot earn net interest for the client is the money to go into an IOLTA account.' "Reply Brief of Proponents, at 14. This is a correct statement of an attorney's duty under trust law, as well as a proper interpretation of the proposed rule as published for public comment. However, in order to make it even clearer that IOLTA funds are only those funds that cannot, under any circumstances, earn net interest (after deducting transaction and administrative costs and bank fees) for the client, we have amended the proposed rule accordingly. See new CPR DR 9-102(C)(3). The new rule makes it absolutely clear that the enumerated *227 factors are merely facets of the ultimate question of whether client funds could be invested profitably for the benefit of clients. If they can, then investment for the client is mandatory." -1114. The court also rejected the argument that it had failed to consider the significance of advances in computer technology that, in time, may convert IOLTA participation into an unconstitutional taking of property that could have been distributed to the client. It pointed to the fact that the Rule expressly requires attorneys to give consideration to the capability of financial institutions to calculate and pay interest on individual accounts, and added: "Thus, as cost effective subaccounting services become available, making it possible to earn net interest for clients on increasingly smaller amounts held for increasingly shorter periods of time, more trust money will have to be invested for the clients' benefit under the new rule. The rule is therefore self-adjusting and is adequately designed to accommodate changes in banking technology without running afoul of the state or federal constitutions." Given the court's explanation of its Rule, it seems apparent that a lawyer who mistakenly uses an IOLTA account as a depositary for money that could earn interest for the client would violate the Rule. Hence, the lawyer will be liable to the client for any lost interest, however minuscule the amount might be. In 1995, the Washington Supreme Court amended its IOLTA Rules to make them applicable to Limited Practice Officers (LPOs) as well as lawyers. LPOs are nonlawyers who are licensed to act as escrowees in the closing of real estate transactions. Like lawyers, LPOs often temporarily control the funds of clients. II This action was commenced by a public interest law firm and four citizens to enjoin state officials from continuing to *228 require LPOs to deposit trust funds into IOLTA accounts. Because the Court of Appeals held that the firm and two of the individuals do not have standing,[4]Washington Legal and since that holding was not challenged in this Court, we limit our discussion to the claims asserted by petitioners Allen Brown and Greg Hayes. The defendants, respondents in this Court, are the justices of the Washington Supreme Court, the Foundation, which receives and redistributes the interest on IOLTA accounts, and the president of the Foundation. In their amended complaint, Brown and Hayes describe the IOLTA program, with particular reference to its application to LPOs and to some of the activities of recipient organizations that have received funds from the Foundation. Brown and Hayes also both allege that they regularly purchase and sell real estate and in the course of such transactions they deliver funds to LPOs who are required to deposit them in IOLTA accounts. They object to having the interest on those funds "used to finance the Recipient Organizations" and "to anyone other than themselves receiving the interest derived from those funds." App. 25. The first count of their complaint alleges that "being forced to associate with the Recipient Organizations" violates their First Amendment rights, ; the second count alleges that the "taking" of the interest earned on their funds in the IOLTA accounts violates the Just Compensation Clause of *229 the Fifth Amendment, ; and the third count alleges that the requirement that client funds be placed in IOLTA accounts is "an illegal taking of the beneficial use of those funds," The prayer for relief sought a refund of interest earned on the plaintiffs' money that had been placed in IOLTA accounts, a declaration that the IOLTA Rules are unconstitutional, and an injunction against their enforcement against LPOs. See Most of the pretrial discovery related to the question whether the 1995 Amendment to the IOLTA Rules had indirectly lessened the earnings of LPOs because LPOs no longer receive certain credits that the banks had provided them when banks retained the interest earned on escrowed funds. Each of the petitioners, however, did identify a specific transaction in which interest on his escrow deposit was paid to the Foundation. Petitioner Hayes and a man named Fossum made an earnest money deposit of $2,000 on August 14, 1996, and a further payment of $12,793.32 on August 28, 1996, in connection with a real estate purchase that was closed on August 30, 1996. The money went into an IOLTA account. Presumably those funds, half of which belonged to Fossum, were used to pay the sales price, "to pay off liens and obtain releases to clear the title to the property being conveyed." The record does not explain exactly how or when the ultimate recipients of those funds received or cashed the checks issued to them by the escrowee, but the parties apparently agree that the deposits generated some interest on principal that was at least in part owned by Hayes during the closing. In connection with a real estate purchase that closed on May 1, 1997, petitioner Brown made a payment of $90,521.29 that remained in escrow for two days, see ; he estimated that the interest on that deposit amounted to $4.96, but he did not claim that he would have received any interest *230 if the IOLTA Rules had not been in place.[5] The record thus suggests, although the facts are not crystal clear, that funds deposited by each of the petitioners generated some interest that was ultimately paid to the Foundation. It also seems clear that without IOLTA those funds would not have produced any net interest for either of the petitioners. After discovery, the District Court granted the defendants' motion for summary judgment. As a factual matter the court concluded "that in no event can the client-depositors make any net returns on the interest accrued in these accounts. Indeed, if the funds were able to make any net return, they would not be subject to the IOLTA program." Washington Legal No. C97-0146C App. to Pet. for Cert. 94a. As a legal matter, the court concluded that the constitutional issue focused on what an owner has lost, not what the "`taker'" has gained, and that petitioners Hayes and Brown had "lost nothing." While the case was on appeal, we decided Relying on our opinion in that case, a three-judge panel of the Ninth Circuit decided that the IOLTA program caused a taking of petitioners' property and that further proceedings were necessary to determine whether they are entitled to just compensation. The panel concluded: "In sum, we hold that the interest generated by IOLTA pooled trust accounts is property of the clients and customers whose money is deposited into trust, and that a government appropriation of that interest for public purposes is a taking entitling them to just compensation under the Fifth Amendment. But just compensation for the takings may be less than the amount *231 of the interest taken, or nothing, depending on the circumstances, so determining the remedy requires a remand." Washington Legal The Court of Appeals then reconsidered the case en banc. The en banc majority affirmed the judgment of the District Court, reasoning that, under the ad hoc approach applied in Penn Transp. there was no taking because petitioners had suffered neither an actual loss nor an interference with any investment-backed expectations, and that the regulation of the use of their property was permissible. Moreover, in the majority's view, even if there were a taking, the just compensation due was zero. The three judges on the original panel, joined by Judge Kozinski, dissented. In their view, the majority's reliance on Penn was misplaced because this case involves a "per se" taking rather than a regulatory -866. The dissenters adhered to the panel's view that a remand is necessary in order to decide whether any compensation is due. In their petition for certiorari, Brown and Hayes asked us not only to resolve the disagreement between the majority and the dissenters in the Ninth Circuit about the taking issue, but also to answer a question that none of those judges reached, namely, whether injunctive relief is available because the small amounts to which they claim they are entitled render recovery through litigation impractical. We granted certiorari. III While it confirms the State's authority to confiscate private property, the text of the Fifth Amendment imposes two conditions on the exercise of such authority: the taking must be for a "public use" and "just compensation" must be paid *232 to the owner.[6] In this case, the first condition is unquestionably satisfied. If the State had imposed a special tax, or perhaps a system of user fees, to generate the funds to finance the legal services supported by the Foundation, there would be no question as to the legitimacy of the use of the public's money.[7] The fact that public funds might pay the legal fees of a lawyer representing a tenant in a dispute with a landlord who was compelled to contribute to the program would not undermine the public character of the "use" of the funds. Provided that she receives just compensation for the taking of her property, a conscientious pacifist has no standing to object to the government's decision to use the property she formerly owned for the production of munitions. Even if there may be occasional misuses of IOLTA funds, the overall, dramatic success of these programs in serving the compelling interest in providing legal services to literally millions of needy Americans certainly qualifies the Foundation's distribution of these funds as a "public use" within the meaning of the Fifth Amendment. *233 Before moving on to the second condition, the "just compensation" requirement, we must address the type of taking, if any, that this case involves. As we made clear just last term: "The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property. Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by `essentially ad hoc, factual inquiries,' Penn designed to allow `careful examination and weighing of all the relevant circumstances.' Palazzolo [v. Rhode Island], 533 U. S. [606,] 636 [] (O'CONNOR, J., concurring). "When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United United Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for *234 apartment tenants, ; or when its planes use private airspace to approach a government airport, United it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting tenants unwilling to pay a higher rent, ; that bans certain private uses of a portion of an owner's property, Village of ; Bituminous Coal ; or that forbids the private use of certain airspace, Penn Transp. does not constitute a categorical `The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions.' See also ; n. 18." Tahoe-Sierra Preservation Council, In their complaint, Brown and Hayes separately challenge (1) the requirement that their funds must be placed in an IOLTA account (Count III) and (2) the later transfers to the Foundation of whatever interest is thereafter earned (Count II). The former is merely a transfer of principal and therefore does not effect a confiscation of any interest. Conceivably it could be viewed as the first step in a "regulatory taking" which should be analyzed under the factors set forth in our opinion in Penn Under such an analysis, however, it is clear that there would be no taking because the transaction had no adverse economic impact on petitioners and did not interfere with any investment-backed expectation. See *235 Even the dissenters in the Court of Appeals did not disagree with the proposition that Penn forecloses the conclusion that there was a regulatory taking effected by the Washington IOLTA program. In their view, however, the proper focus was on the second step, the transfer of interest from the IOLTA account to the Foundation. It was this step that the dissenters likened to the kind of "per se" taking that occurred in We agree that a per se approach is more consistent with the reasoning in our Phillips opinion than Penn 's ad hoc analysis. As was made clear in Phillips, the interest earned in the IOLTA accounts "is the `private property' of the owner of the principal." 524 U.S., If this is so, the transfer of the interest to the Foundation here seems more akin to the occupation of a small amount of rooftop space in We therefore assume that Brown and Hayes retained the beneficial ownership of at least a portion of their escrow deposits until the funds were disbursed at the closings, that those funds generated some interest in the IOLTA accounts, and that their interest was taken for a public use when it was ultimately turned over to the Foundation. As the dissenters in the Ninth Circuit explained, though, this does not end our inquiry. Instead, we must determine whether any "just compensation" is due. IV "The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." Williamson County Regional Planning All of the Circuit Judges and District Judges who have confronted the compensation question, both in this case and in Phillips, have agreed that the "just compensation" required by the Fifth Amendment is measured by the property owner's loss *236 rather than the government's gain. This conclusion is supported by consistent and unambiguous holdings in our cases. Most frequently cited is Justice Holmes' characteristically terse statement that "the question is what has the owner lost, not what has the taker gained." Boston Chamber of Also directly in point is Justice Brandeis' explanation of why a mere technical taking does not give rise to an obligation to pay compensation: "We have no occasion to determine whether in law the President took possession and assumed control of the Marion & Rye Valley Railway. For even if there was technically a taking, the judgment for defendant was right. Nothing was recoverable as just compensation, because nothing of value was taken from the company; and it was not subjected by the Government to pecuniary loss." Marion & Rye Valley R. A few years later we again noted that the private party "is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more." In Kimball Laundry (9), although there was disagreement within the Court concerning the proper measure of the owner's loss when a leasehold interest was condemned, it was common ground that the government should pay "not for what it gets but for what the owner loses." Moreover, in his opinion for the majority, Justice Frankfurter made it clear that, given "the liability of all property to condemnation for the common good," an owner's nonpecuniary losses attributable to "his unique need for property or idiosyncratic attachment to it, like loss due to an exercise of *237 the police power, is properly treated as part of the burden of common citizenship." Applying the teaching of these cases to the question before us, it is clear that neither Brown nor Hayes is entitled to any compensation for the nonpecuniary consequences of the taking of the interest on his deposited funds, and that any pecuniary compensation must be measured by his net losses rather than the value of the public's gain. For that reason, both the majority[8] and the dissenters[9] on the Court of Appeals agreed that if petitioners' net loss was zero, the compensation that is due is also zero. V Posing hypothetical cases that explain why a lawyer might mistakenly deposit funds in an IOLTA account when those funds might have produced net earnings for the client, the Ninth Circuit dissenters concluded that a remand of this case is necessary to decide whether petitioners are entitled to any compensation. "Even though when funds are deposited into IOLTA accounts, the lawyers expect them to earn less than it would cost to distribute the interest, that expectation can turn out to be incorrect, as discussed above. Several hypothetical cases illustrate the complexities of the remedies, which need further factual development on remand. Suppose $2,000 is deposited into a lawyer's trust account paying 5% and stays there for two days. It earns about $.55, probably well under the cost of a stamp and envelope, along with clerical expenses, needed to send the $.55 to the client. In that case, the client's financial loss from the taking, if a reasonable charge is *238 made for the administrative expense, is nothing. The fair market value of a right to receive $.55 by spending perhaps $5.00 to receive it would be nothing. On the other hand, suppose, hypothetically, that the amount deposited into the trust account is $30,000, and it stays there for 6 days. The client's loss here would be about $29.59 if he does not get the interest, which may well exceed the reasonable administrative expense of paying it to him out of a common fund. It is hard to see how just compensation could be zero in this hypothetical taking, even though it would be in the $2,000 for 2 days hypothetical It may be that the difference between what a pooled fund earns, and what the individual clients and escrow companies lose, adds up to enough to sustain a valuable IOLTA program while not depriving any of the clients and customers of just compensation for the takings. This is a practical question entirely undeveloped on this record. We leave it for the parties to consider during the remedial phase of this litigation."[10] *239 These hypotheticals persuade us that lawyers and LPOs may occasionally deposit client funds in an IOLTA account when those funds could have produced net interest for their clients. It does not follow, however, that there is a need for further hearings to determine whether Brown or Hayes is entitled to any compensation from the respondents. The Rules adopted and administered by the Washington Supreme Court unambiguously require lawyers and LPOs to deposit client funds in non-IOLTA accounts whenever those funds could generate net earnings for the client. See Thus, if the LPOs who deposited petitioners' money in IOLTA accounts could have generated net income, the LPOs violated the court's Rules. Any conceivable net loss to petitioners was the consequence of the LPOs' incorrect private decisions rather than any state action. Such mistakes may well give petitioners a valid claim against the LPOs, but they would provide no support for a claim for compensation from the State, or from any of the respondents. The District Court was therefore entirely correct when it made the factual finding "that in no event can the client-depositors make any net return on the interest accrued in *240 these accounts. Indeed, if the funds were able to make any net return, they would not be subject to the IOLTA program." No. C97-0146C App. to Pet. for Cert. 94a. The categorical requirement in Washington's IOLTA program that mandates the choice of a non-IOLTA account when net interest can be generated for the client provided an independent ground for the en banc court's judgment. It held that the program did "not work a constitutional violation with regard to Brown's and Hayes's property: Even if their property was taken, the Fifth Amendment only protects against a taking without just compensation. Because of the way the IOLTA program operates, the compensation due Brown and Hayes for any taking of their property would be nil. There was therefore no constitutional violation when they were not compensated." -862. We agree with that holding.[11] VI To recapitulate: It is neither unethical nor illegal for lawyers to deposit their clients' funds in a single bank account. A state law that requires client funds that could not otherwise generate net earnings for the client to be deposited in an IOLTA account is not a "regulatory " A law that requires that the interest on those funds be transferred to a different owner for a legitimate public use, however, could be a per se taking requiring the payment of "just compensation" to the client. Because that compensation is measured by the owner's pecuniary loss — which is zero whenever the Washington law is obeyed — there has been no violation of the Just Compensation Clause of the Fifth Amendment in this case. It is therefore unnecessary to discuss the remedial *241 question presented in the certiorari petition. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Scalia

dissenting

Brown v. Legal Foundation of Wash.

2003-03-26

https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/

https://www.courtlistener.com/api/rest/v3/clusters/127904/

2002-035

The Court today concludes that the State of Washington may seize private property, without paying compensation, on the ground that the former owners suffered no "net loss" because their confiscated property was created by the beneficence of a state regulatory program. In so holding the Court creates a novel exception to our oft-repeated rule that the just compensation owed to former owners of confiscated property is the fair market value of the property taken. What is more, the Court embraces a line of reasoning that we explicitly rejected in Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998). Our precedents compel the conclusion that petitioners are entitled to the fair market value of the interest generated by their funds held in interest on lawyers' trust accounts (IOLTA). I dissent from the Court's judgment to the contrary. I In 1984 the Supreme Court of Washington issued an order requiring lawyers to place all client trust funds in "identifiable interest-bearing trust accounts." App. 150. If a client's funds can be invested to provide a "positive net return" to the client, the lawyer must place the funds in an account that pays interest to the client. If the client's funds cannot earn a "positive net return" for the client, the funds are to be deposited in a pooled interest-bearing IOLTA account with the interest payable to the Legal Foundation of Washington (LFW), a nonprofit organization that provides legal services for the indigent. A lawyer is not required to obtain his client's consent, or even notify his client, regarding the *242 use of client funds in IOLTA accounts or the payment of interest to LFW. Id., at 151. The Supreme Court of Washington dismissed all constitutional objections to its 1984 order on the now-discredited ground that any interest that might be earned on IOLTA accounts would not be "property" of the clients. Id., at 158; cf. Phillips, supra. As the Court correctly notes, Washington's IOLTA program comprises two steps: First, the State mandates that certain client trust funds be placed in an IOLTA account, where those funds generate interest. Second, the State seizes the interest earned on those accounts to fund LFW. Ante, at 234. With regard to step one, we held in Phillips, supra, that any interest earned on client funds held in IOLTA accounts belongs to the owner of the principal, not the State or the State's designated recipient of the interest. As to step two, the Court assumes, arguendo, that the appropriation of petitioners' interest constitutes a "taking,"[1] but holds that just compensation is zero because without the mandatory pooling arrangements (step one) of IOLTA, petitioners' funds could not have generated any interest in the first place.[2]Ante, at 239-240. This holding contravenes our *243 decision in Phillips — effectively refusing to treat the interest as the property of petitioners we held it to be — and brushes aside 80 years of precedent on determining just compensation. II When a State has taken private property for a public use, the Fifth Amendment requires compensation in the amount of the market value of the property on the date it is appropriated. See United States v. 50 Acres of Land, 469 U.S. 24, 29 (1984) (holding that just compensation is "`market value of the property at the time of the taking'" (emphasis added) (quoting Olson v. United States, 292 U.S. 246, 255 (1934))); Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 10 (1984); United States v. 564.54 Acres of Monroe and Pike County Land, 441 U.S. 506, 511 (1979); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 474 (1973); United States v. Commodities Trading Corp., 339 U.S. 121, 130 (1950); United States v. New River Collieries Co., 262 U.S. 341, 344 (1923). As we explained in United States v. Petty Motor Co., 327 U.S. 372, 377 (1946), "just compensation . . . is not the value to the owner for his particular purposes or to the condemnor for some special use *244 but a so-called `market value.'" Our cases have recognized only two situations in which this standard is not to be used: when market value is too difficult to ascertain, and when payment of market value would result in "`manifest injustice'" to the owner or the public. See Kirby Forest Industries, Inc., supra, at 10, n. 14. In holding that any just compensation that might be owed is zero, the Court neither pretends to ascertain the market value of the confiscated property nor asserts that the case falls within one of the two exceptions where market value need not be determined. Instead, the Court proclaims that just compensation is to be determined by the former property owner's "net loss," and endorses simultaneously two competing and irreconcilable theories of how that loss should be measured. The Court proclaims its agreement with the Ninth Circuit majority that just compensation is the interest petitioners would have earned had their funds been deposited in non-IOLTA accounts. Ante, at 239-240. See also 271 F.3d 835, 862 (CA9 2001) ("[W]ithout IOLTA, neither Brown nor Hayes would have earned interest on his principal because by regulatory definition, their funds would have not otherwise been placed in an IOLTA account"). At the same time, the Court approves the view of the Ninth Circuit dissenters that just compensation is the amount of interest actually earned in petitioners' IOLTA accounts, minus the amount that would have been lost in transaction costs had petitioners sought to keep the money for themselves. Ante, at 238-239, n. 10. The Court cannot have it both ways — as the Ninth Circuit itself realized — but even if it could, neither of the two options from which lower courts may now choose is consistent with Phillips or our precedents that equate just compensation with the fair market value of the property taken. A Under the Court's first theory, just compensation is zero because, under the State Supreme Court's Rules, the only *245 funds placed in IOLTA accounts are those which could not have earned net interest for the client in a non-IOLTA savings account. App. 150. This approach defines petitioners' "net loss" as the amount of interest they would have received had their funds been deposited in separate, non-IOLTA accounts. See ante, at 239 ("[I]f the [Limited Practice Officers (LPOs)] who deposited petitioners' money in IOLTA accounts could have generated net income, the LPOs violated the court's Rules. Any conceivable net loss to petitioners was the consequence of the LPOs' incorrect private decisions rather than any state action"). This definition of just compensation has no foundation in reason. Once interest is earned on petitioners' funds held in IOLTA accounts, that money is petitioners' property. See Phillips, 524 U. S., at 168 ("[A]ny interest that does accrue attaches as a property right incident to the ownership of the underlying principal"). It is at that point that the State appropriates the interest to fund LFW — after the interest has been generated in the pooled accounts — and it is at that point that just compensation for the taking must be assessed. It may very well be, as the Court asserts, that petitioners could not have earned money on their funds absent IOLTA's mandatory pooling arrangements, but just compensation is not to be measured by what would have happened in a hypothetical world in which the State's IOLTA program did not exist. When the State takes possession of petitioners' property — petitioners' money — and transfers it to LFW, the property obviously has value. The conclusion that it is devoid of value because of the circumstances giving rise to its creation is indefensible. Consider the implications of the Court's approach for a case such as Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980), which involved a Florida statute that allowed the clerk of a court, in his discretion, to invest interpleader funds deposited with that court in interest-bearing certificates, the interest earned to be deemed "`income of *246 the office of the clerk of the circuit court.'" Id., at 156, n. 1 (quoting Fla. Stat. § 28.33 (1977)). The appellant in Webb's had tendered nearly $2 million to a state court after filing an interpleader action, and we held that the state court's retention of the more than $100,000 in interest generated by those funds was an uncompensated taking of private property.[3] 449 U. S., at 164. But what would have been just compensation for the taking in Webb's under today's analysis? It would consist not of the amount of interest actually earned by the principal, but rather of the amount that would have been earned had the State not provided for the clerk of court to generate the interest in the first place. That amount would have been zero since, as we noted in Webb's, Florida law did not require that interest be earned on a registry deposit, id., at 161. Section 28.33's authorization for the clerk of court to invest the interpleader funds, like the Washington Supreme Court's IOLTA scheme, was a state-created opportunity to generate interest on moneys that would otherwise lie fallow. As the Florida Supreme Court observed, "[i]nterest accrues only because of section 28.33. In this sense the statute takes only what it creates." Beckwith v. Webb's Fabulous Pharmacies, Inc., 374 So. 2d 951, 953 (1979) (emphasis added). In Webb's this Court unanimously rejected the contention that a state regulatory scheme's generation of interest that *247 would otherwise not have come into existence gave license for the State to claim the interest for itself. What can possibly explain the contrary holding today? Surely it cannot be that the Justices look more favorably upon a nationally emulated uncompensated taking of clients' funds to support (hurrah!) legal services to the indigent than they do upon a more local uncompensated taking of clients' funds to support nothing more inspiring than the Florida circuit courts. That were surely an unprincipled distinction. But the real, principled basis for the distinction remains to be disclosed. And until it is disclosed, today's endorsement of the proposition that there is no taking when "the State giveth, and the State taketh away," has potentially far-reaching consequences. May the government now seize welfare benefits, without paying compensation, on the ground that there was no "net los[s]," ante, at 237, to the recipient? Cf. Goldberg v. Kelly, 397 U.S. 254 (1970).[4] What is more, the Court's reasoning calls into question our holding in Phillips that interest generated on IOLTA accounts is the "private property" of the owners of the principal. An ownership interest encumbered by the right of the government to seize moneys for itself or transfer them to the nonprofit organization of its choice is not compatible with any notion of "private property." True, the Fifth Amendment allows the government to appropriate private property without compensation if the market value of the property is zero (and if it is taken for a "public use"). But *248 the Court does not defend the State's action on the ground that the money taken is worthless, but instead on the ground that the interest would not have been created but for IOLTA's mandatory pooling arrangements. The Court thereby embraces precisely the line of argument we rejected in Phillips: that the interest earned on client funds in IOLTA accounts could not be deemed "private property" of the clients because those funds "cannot reasonably be expected to generate interest income on their own." 524 U.S., at 169 (internal quotation marks omitted); cf. id., at 183 (BREYER, J., dissenting). B The Court's rival theory for explaining why just compensation is zero fares no better. Contrary to its aforementioned description of petitioners' "net loss" as the amount their funds would have earned in non-IOLTA accounts, ante, at 239-240, the Court declares that just compensation is "the net value of the interest that was actually earned by petitioners," ante, at 239, n. 10 (emphasis added) — net value consisting of the value of the funds, less "transaction and administrative costs and bank fees" that would be expended in extracting the funds from the IOLTA accounts, ibid. To support this concept of "net value," the Court cites nothing but the cases discussed earlier in its opinion, ante, at 235-237, which establish that just compensation consists of the value the owner has lost rather than the value the government has gained. In this case, however, there is no difference between the two. Petitioners have lost the interest that Phillips says rightfully belongs to them — which is precisely what the government has gained. The Court's apparent fear that following the Constitution in this case will provide petitioners a "windfall" in the amount of transaction costs saved is based on the unfounded assumption that the State must return the interest directly to petitioners. The State could satisfy its obligation to pay just compensation by simply returning petitioners' money to the IOLTA account *249 from which it was seized, leaving others to incur the accounting costs in the event petitioners seek to extract their interest from the account. In any event, our cases that have distinguished the "property owner's loss" from the "government's gain" say nothing whatever about reducing this value to some "net" amount. Remarkably, the Court does not cite the recent case of ours that specifically addresses this issue, and that does so in the very context of an IOLTA-type scheme. Phillips flatly rejected the notion that just compensation may be reduced by transaction costs the former owner would have sustained in retaining his property. See 524 U.S., at 170 ("The government may not seize rents received by the owner of a building simply because it can prove that the costs incurred in collecting the rents exceed the amount collected");[5] see also Olson v. United States, 292 U. S., at 255 ("It is the property and not the cost of it that is safeguarded by [the] Constitutio[n]"). *250 And if the Federal Government seizes someone's paycheck, it may not deduct from its obligation to pay just compensation the amount that state and local governments would have taxed, on the ground that it need only compensate the "net los[s]," ante, at 237, to the former owner. That is why we have repeatedly held that just compensation is the "market value" of the confiscated property, rather than the "net loss" to the owner. "Market value" is not reduced by what the owner would have lost in taxes or other exactions. "`[J]ust compensation' means the full monetary equivalent of the property taken." United States v. Reynolds, 397 U.S. 14, 16 (1970). But the irrationality of this aspect of the Court's opinion does not end with its blatant contradiction of a precedent (Phillips) promulgated by a Court consisting of the same Justices who sit today. Even if "net value" (rather than "market value") were the appropriate measure of just compensation, the Court has no basis whatsoever for pronouncing the "net value" of petitioners' interest to be zero. While the Court is correct that under the State's IOLTA rules, petitioners' funds could not have earned net interest in separate, non-IOLTA accounts, ante, at 238-239, n. 10, that has no bearing on the transaction costs that petitioners would sustain in removing their earned interest from the IOLTA accounts.[6] The Court today arbitrarily forecloses clients from *251 recovering the "net interest" to which (even under the Court's definition of just compensation) they are entitled. What is more, there is no reason to believe that petitioners themselves do not fall within the class of clients whose funds, though unable to earn interest in non-IOLTA accounts, nevertheless generate "net interest" in IOLTA accounts. That is why the Ninth Circuit dissenters (who shared the Court's second theory of just compensation but not the first) voted to remand to the District Court for a factual determination of what the "net value" of petitioners' interest actually is. To confuse confusion yet again, the Court justifies its decision not to remand by simply falling back upon the different theory of just compensation espoused by the Ninth Circuit majority — namely, that just compensation will always be zero because the funds would not have earned interest for the clients in a non-IOLTA savings account. Ante, at 239-240. See also 271 F.3d, at 862 ("Brown and Hayes are in actuality seeking compensation for the value added to their property by Washington's IOLTA program"). That does not conform, of course, with the Court's previously announced standard for just compensation: "the net value of the interest that was actually earned by petitioners." Ante, at 239, n. 10 (emphasis added).[7] Assessing the "net value" of interest *252 "actually earned" requires a factual determination of the costs petitioners would incur if they sought to keep the IOLTA-generated interest for themselves. By refusing to undertake this inquiry, the Court reveals that its contention that the value of interest "actually earned" is the measure of just compensation is a facade. The Court's affirmance of the decision below can only rest on the reasoning adopted by the Ninth Circuit majority (notwithstanding its rejection in Phillips): that property created by virtue of a state regulatory program may be taken without compensation. * * * Perhaps we are witnessing today the emergence of a whole new concept in Compensation Clause jurisprudence: the Robin Hood Taking, in which the government's extraction of wealth from those who own it is so cleverly achieved, and the object of the government's larcenous beneficence is so highly favored by the courts (taking from the rich to give to indigent defendants) that the normal rules of the Constitution protecting private property are suspended. One must hope that that is the case. For to extend to the entire run of Compensation Clause cases the rationale supporting today's judgment — what the government hath given, the government may freely take away — would be disastrous. The Court's judgment that petitioners are not entitled to the market value of their confiscated property has no basis in law. I respectfully dissent.

The Court today concludes that the State of Washgton may seize private property, without payg compensation, on the ground that the former owners suffered no "net loss" because their confiscated property was created by the beneficence of a state regulatory program. In so holdg the Court creates a novel exception to our oft-repeated rule that the just compensation owed to former owners of confiscated property is the fair market value of the property taken. What is more, the Court embraces a le of reasong that we explicitly rejected Our precedents compel the conclusion that petitioners are entitled to the fair market value of the terest generated by their funds held terest on lawyers' trust accounts (IOLTA). I dissent from the Court's judgment to the contrary. I In 1984 the Supreme Court of Washgton issued an order requirg lawyers to place all client trust funds "identifiable terest-bearg trust accounts." App. 150. If a client's funds can be vested to provide a "positive net return" to the client, the lawyer must place the funds an account that pays terest to the client. If the client's funds cannot earn a "positive net return" for the client, the funds are to be deposited a pooled terest-bearg IOLTA account with the terest payable to the Legal Foundation of Washgton (LFW), a nonprofit organization that provides legal services for the digent. A lawyer is not required to obta his client's consent, or even notify his client, regardg the *242 use of client funds IOLTA accounts or the payment of terest to LFW. The Supreme Court of Washgton dismissed all constitutional objections to its 1984 order on the now-discredited ground that any terest that might be earned on IOLTA accounts would not be "property" of the clients. ; cf. As the Court correctly notes, Washgton's IOLTA program comprises two steps: First, the State mandates that certa client trust funds be placed an IOLTA account, where those funds generate terest. Second, the State seizes the terest earned on those accounts to fund LFW. Ante, at 234. With regard to step one, we held that any terest earned on client funds held IOLTA accounts belongs to the owner of the prcipal, not the State or the State's designated recipient of the terest. As to step two, the Court assumes, arguendo, that the appropriation of petitioners' terest constitutes a "takg,"[1] but holds that just compensation is zero because without the mandatory poolg arrangements (step one) of IOLTA, petitioners' funds could not have generated any terest the first place.[2]Ante, at 239-240. This holdg contravenes our *243 decision — effectively refusg to treat the terest as the property of petitioners we held it to be — and brushes aside 80 years of precedent on determg just compensation. II When a State has taken private property for a public use, the Fifth Amendment requires compensation the amount of the market value of the property on the date it is appropriated. See United (holdg that just compensation is "`market value of the property at the time of the takg'" )); Kirby Forest Industries, ; United ; Almota Farmers Elevator & Warehouse ; United v. Commodities Tradg Corp., ; United As we explaed United "just compensation is not the value to the owner for his particular purposes or to the condemnor for some special use *244 but a so-called `market value.'" Our cases have recognized only two situations which this standard is not to be used: when market value is too difficult to ascerta, and when payment of market value would result "`manifest justice'" to the owner or the public. See Kirby Forest Industries, at n. 14. In holdg that any just compensation that might be owed is zero, the Court neither pretends to ascerta the market value of the confiscated property nor asserts that the case falls with one of the two exceptions where market value need not be determed. Instead, the Court proclaims that just compensation is to be determed by the former property owner's "net loss," and endorses simultaneously two competg and irreconcilable theories of how that loss should be measured. The Court proclaims its agreement with the Nth Circuit majority that just compensation is the terest petitioners would have earned had their funds been deposited non-IOLTA accounts. Ante, at 239-240. See ("[W]ithout IOLTA, neither Brown nor Hayes would have earned terest on his prcipal because by regulatory defition, their funds would have not otherwise been placed an IOLTA account"). At the same time, the Court approves the view of the Nth Circuit dissenters that just compensation is the amount of terest actually earned petitioners' IOLTA accounts, mus the amount that would have been lost transaction costs had petitioners sought to keep the money for themselves. Ante, at 238-239, n. The Court cannot have it both ways — as the Nth Circuit itself realized — but even if it could, neither of the two options from which lower courts may now choose is consistent with or our precedents that equate just compensation with the fair market value of the property taken. A Under the Court's first theory, just compensation is zero because, under the State Supreme Court's Rules, the only *245 funds placed IOLTA accounts are those which could not have earned net terest for the client a non-IOLTA savgs account. App. 150. This approach defes petitioners' "net loss" as the amount of terest they would have received had their funds been deposited separate, non-IOLTA accounts. See ante, at 239 ("[I]f the [Limited Practice Officers (LPOs)] who deposited petitioners' money IOLTA accounts could have generated net come, the LPOs violated the court's Rules. Any conceivable net loss to petitioners was the consequence of the LPOs' correct private decisions rather than any state action"). This defition of just compensation has no foundation reason. Once terest is earned on petitioners' funds held IOLTA accounts, that money is petitioners' property. See ("[A]ny terest that does accrue attaches as a property right cident to the ownership of the underlyg prcipal"). It is at that pot that the State appropriates the terest to fund LFW — after the terest has been generated the pooled accounts — and it is at that pot that just compensation for the takg must be assessed. It may very well be, as the Court asserts, that petitioners could not have earned money on their funds absent IOLTA's mandatory poolg arrangements, but just compensation is not to be measured by what would have happened a hypothetical world which the State's IOLTA program did not exist. When the State takes possession of petitioners' property — petitioners' money — and transfers it to LFW, the property obviously has value. The conclusion that it is devoid of value because of the circumstances givg rise to its creation is defensible. Consider the implications of the Court's approach for a case such as Webb's Fabulous Pharmacies, v. Beckwith, which volved a Florida statute that allowed the clerk of a court, his discretion, to vest terpleader funds deposited with that court terest-bearg certificates, the terest earned to be deemed "`come of *246 the office of the clerk of the circuit court.'" (quotg (1977)). The appellant Webb's had tendered nearly $2 million to a state court after filg an terpleader action, and we held that the state court's retention of the more than $0,000 terest generated by those funds was an uncompensated takg of private property.[3] But what would have been just compensation for the takg Webb's under today's analysis? It would consist not of the amount of terest actually earned by the prcipal, but rather of the amount that would have been earned had the State not provided for the clerk of court to generate the terest the first place. That amount would have been zero sce, as we noted Webb's, Florida law did not require that terest be earned on a registry deposit, Section 28.33's authorization for the clerk of court to vest the terpleader funds, like the Washgton Supreme Court's IOLTA scheme, was a state-created opportunity to generate terest on moneys that would otherwise lie fallow. As the Florida Supreme Court observed, "[i]nterest accrues only because of section 28.33. In this sense the statute takes only what it creates." Beckwith v. Webb's Fabulous Pharmacies, In Webb's this Court unanimously rejected the contention that a state regulatory scheme's generation of terest that *247 would otherwise not have come to existence gave license for the State to claim the terest for itself. What can possibly expla the contrary holdg today? Surely it cannot be that the Justices look more favorably upon a nationally emulated uncompensated takg of clients' funds to support (hurrah!) legal services to the digent than they do upon a more local uncompensated takg of clients' funds to support nothg more spirg than the Florida circuit courts. That were surely an unprcipled distction. But the real, prcipled basis for the distction remas to be disclosed. And until it is disclosed, today's endorsement of the proposition that there is no takg when "the State giveth, and the State taketh away," has potentially far-reachg consequences. May the government now seize welfare benefits, without payg compensation, on the ground that there was no "net los[s]," ante, at 237, to the recipient? Cf.[4] What is more, the Court's reasong calls to question our holdg that terest generated on IOLTA accounts is the "private property" of the owners of the prcipal. An ownership terest encumbered by the right of the government to seize moneys for itself or transfer them to the nonprofit organization of its choice is not compatible with any notion of "private property." True, the Fifth Amendment allows the government to appropriate private property without compensation if the market value of the property is zero (and if it is taken for a "public use"). But *248 the Court does not defend the State's action on the ground that the money taken is worthless, but stead on the ground that the terest would not have been created but for IOLTA's mandatory poolg arrangements. The Court thereby embraces precisely the le of argument we rejected : that the terest earned on client funds IOLTA accounts could not be deemed "private property" of the clients because those funds "cannot reasonably be expected to generate terest come on their own." (ternal quotation marks omitted); cf. (BREYER, J., dissentg). B The Court's rival theory for explag why just compensation is zero fares no better. Contrary to its aforementioned description of petitioners' "net loss" as the amount their funds would have earned non-IOLTA accounts, ante, at 239-240, the Court declares that just compensation is "the net value of the terest that was actually earned by petitioners," ante, at 239, n. — net value consistg of the value of the funds, less "transaction and admistrative costs and bank fees" that would be expended extractg the funds from the IOLTA accounts, To support this concept of "net value," the Court cites nothg but the cases discussed earlier its opion, ante, at 235-237, which establish that just compensation consists of the value the owner has lost rather than the value the government has gaed. In this case, however, there is no difference between the two. Petitioners have lost the terest that says rightfully belongs to them — which is precisely what the government has gaed. The Court's apparent fear that followg the Constitution this case will provide petitioners a "wdfall" the amount of transaction costs saved is based on the unfounded assumption that the State must return the terest directly to petitioners. The State could satisfy its obligation to pay just compensation by simply returng petitioners' money to the IOLTA account *249 from which it was seized, leavg others to cur the accountg costs the event petitioners seek to extract their terest from the account. In any event, our cases that have distguished the "property owner's loss" from the "government's ga" say nothg whatever about reducg this value to some "net" amount. Remarkably, the Court does not cite the recent case of ours that specifically addresses this issue, and that does so the very context of an IOLTA-type scheme. flatly rejected the notion that just compensation may be reduced by transaction costs the former owner would have sustaed retag his property. See ("The government may not seize rents received by the owner of a buildg simply because it can prove that the costs curred collectg the rents exceed the amount collected");[5] see 2 U. S., at *250 And if the Federal Government seizes someone's paycheck, it may not deduct from its obligation to pay just compensation the amount that state and local governments would have taxed, on the ground that it need only compensate the "net los[s]," ante, at 237, to the former owner. That is why we have repeatedly held that just compensation is the "market value" of the confiscated property, rather than the "net loss" to the owner. "Market value" is not reduced by what the owner would have lost taxes or other exactions. "`[J]ust compensation' means the full monetary equivalent of the property taken." United v. Reynolds, But the irrationality of this aspect of the Court's opion does not end with its blatant contradiction of a precedent () promulgated by a Court consistg of the same Justices who sit today. Even if "net value" (rather than "market value") were the appropriate measure of just compensation, the Court has no basis whatsoever for pronouncg the "net value" of petitioners' terest to be zero. While the Court is correct that under the State's IOLTA rules, petitioners' funds could not have earned net terest separate, non-IOLTA accounts, ante, at 238-239, n. that has no bearg on the transaction costs that petitioners would susta removg their earned terest from the IOLTA accounts.[6] The Court today arbitrarily forecloses clients from *251 recoverg the "net terest" to which (even under the Court's defition of just compensation) they are entitled. What is more, there is no reason to believe that petitioners themselves do not fall with the class of clients whose funds, though unable to earn terest non-IOLTA accounts, nevertheless generate "net terest" IOLTA accounts. That is why the Nth Circuit dissenters (who shared the Court's second theory of just compensation but not the first) voted to remand to the District Court for a factual determation of what the "net value" of petitioners' terest actually is. To confuse confusion yet aga, the Court justifies its decision not to remand by simply fallg back upon the different theory of just compensation espoused by the Nth Circuit majority — namely, that just compensation will always be zero because the funds would not have earned terest for the clients a non-IOLTA savgs account. Ante, at 239-240. See 271 F.3d, at ("Brown and Hayes are actuality seekg compensation for the value added to their property by Washgton's IOLTA program"). That does not conform, of course, with the Court's previously announced standard for just compensation: "the net value of the terest that was actually earned by petitioners." Ante, at 239, n.[7] Assessg the "net value" of terest *252 "actually earned" requires a factual determation of the costs petitioners would cur if they sought to keep the IOLTA-generated terest for themselves. By refusg to undertake this quiry, the Court reveals that its contention that the value of terest "actually earned" is the measure of just compensation is a facade. The Court's affirmance of the decision below can only rest on the reasong adopted by the Nth Circuit majority (notwithstandg its rejection ): that property created by virtue of a state regulatory program may be taken without compensation. * * * Perhaps we are witnessg today the emergence of a whole new concept Compensation Clause jurisprudence: the Rob Hood Takg, which the government's extraction of wealth from those who own it is so cleverly achieved, and the object of the government's larcenous beneficence is so highly favored by the courts (takg from the rich to give to digent defendants) that the normal rules of the Constitution protectg private property are suspended. One must hope that that is the case. For to extend to the entire run of Compensation Clause cases the rationale supportg today's judgment — what the government hath given, the government may freely take away — would be disastrous. The Court's judgment that petitioners are not entitled to the market value of their confiscated property has no basis law. I respectfully dissent.

Justice Kennedy

second_dissenting

Brown v. Legal Foundation of Wash.

2003-03-26

https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/

https://www.courtlistener.com/api/rest/v3/clusters/127904/

2002-035

The principal dissenting opinion, authored by JUSTICE SCALIA, sets forth a precise, complete, and convincing case for rejecting the holding and analysis of the Court. I join the dissent in full. It does seem appropriate to add this further observation. By mandating that the interest from these accounts serve causes the justices of the Washington Supreme Court prefer, the State not only takes property in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States but also grants to itself a monopoly which might then be used for the forced support of certain viewpoints. Had the State, with the help of Congress, not acted in violation of its constitutional responsibilities by taking for itself property which all concede to be that of the client, ante, at 235; Phillips v. Washington Legal Foundation, 524 U.S. 156, 172 (1998), the free market might have created various and diverse funds for pooling small interest amounts. These funds would have allowed the true owners of the property the option to express views and policies of their own choosing. Instead, as these programs stand today, the true owner cannot even opt out of the State's monopoly. The First Amendment consequences of the State's action have not been addressed in this case, but the potential for a serious violation is there. See Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977); Keller v. State Bar of Cal., 496 U.S. 1 (1990). Today's holding, then, is doubly unfortunate. One constitutional violation (the taking of property) likely will lead to another (compelled speech). These matters may have to come before the Court in due course.

The principal dissenting opinion, authored by JUSTICE SCALIA, sets forth a precise, complete, and convincing case for rejecting the holding and analysis of the Court. I join the dissent in full. It does seem appropriate to add this further observation. By mandating that the interest from these accounts serve causes the justices of the Washington Supreme Court prefer, the State not only takes property in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States but also grants to itself a monopoly which might then be used for the forced support of certain viewpoints. Had the State, with the help of Congress, not acted in violation of its constitutional responsibilities by taking for itself property which all concede to be that of the client, ante, at 235; the free market might have created various and diverse funds for pooling small interest amounts. These funds would have allowed the true owners of the property the option to express views and policies of their own choosing. Instead, as these programs stand today, the true owner cannot even opt out of the State's monopoly. The First Amendment consequences of the State's action have not been addressed in this case, but the potential for a serious violation is there. See ; Today's holding, then, is doubly unfortunate. One constitutional violation (the taking of property) likely will lead to another (compelled speech). These matters may have to come before the Court in due course.

Justice Souter

majority

Albertson's, Inc. v. Kirkingburg

1999-06-22

https://www.courtlistener.com/opinion/118314/albertsons-inc-v-kirkingburg/

https://www.courtlistener.com/api/rest/v3/clusters/118314/

1998-087

[*] The question posed is whether, under the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 327, as amended, 42 U.S. C. § 12101 et seq. (1994 ed. and Supp. III), an employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation must justify enforcing the regulation solely because its standard may be waived in an individual case. We answer no. I In August 1990, petitioner, Albertson's, Inc., a grocerystore chain with supermarkets in several States, hired respondent, Hallie Kirkingburg, as a truckdriver based at its Portland, Oregon, warehouse. Kirkingburg had more than a decade's driving experience and performed well when petitioner's transportation manager took him on a road test. Before starting work, Kirkingburg was examined to see if he met federal vision standards for commercial truckdrivers. 143 F.3d 1228, 1230-1231 (CA9 1998). For many decades the Department of Transportation and its predecessors have been responsible for devising these standards for individuals who drive commercial vehicles in interstate commerce.[1] Since 1971, the basic vision regulation has required corrected distant visual acuity of at least 20/40 in each eye *559 and distant binocular acuity of at least 20/40. See 35 Fed. Reg. 6458, 6463 (1970); 57 Fed. Reg. 6793, 6794 (1992); 49 CFR § 391.41(b)(10) (1998).[2] Kirkingburg, however, suffers from amblyopia, an uncorrectable condition that leaves him with 20/200 vision in his left eye and monocular vision in effect.[3] Despite Kirkingburg's weak left eye, the doctor erroneously certified that he met the DOT's basic vision standards, and Albertson's hired him.[4] In December 1991, Kirkingburg injured himself on the job and took a leave of absence. Before returning to work in November 1992, Kirkingburg went for a further physical as required by the company. This time, the examining physician correctly assessed Kirkingburg's vision and explained that his eyesight did not meet the basic DOT standards. The physician, or his nurse, told Kirkingburg that in order to be legally qualified to drive, he would have to obtain a waiver of its basic vision standards from the DOT. See 143 *560 F. 3d, at 1230; App. 284-285. The doctor was alluding to a scheme begun in July 1992 for giving DOT certification to applicants with deficient vision who had three years of recent experience driving a commercial vehicle without a license suspension or revocation, involvement in a reportable accident in which the applicant was cited for a moving violation, conviction for certain driving-related offenses, citation for certain serious traffic violations, or more than two convictions for any other moving violations. A waiver applicant had to agree to have his vision checked annually for deterioration, and to report certain information about his driving experience to the Federal Highway Administration (FHWA or Administration), the agency within the DOT responsible for overseeing the motor carrier safety regulations. See 57 Fed. Reg. 31458, 31460-31461 (1992).[5] Kirkingburg applied for a waiver, but because he could not meet the basic DOT vision standard Albertson's fired him from his job as a truckdriver.[6] In early 1993, after he had left Albertson's, Kirkingburg received a DOT waiver, but Albertson's refused to rehire him. See 143 F.3d, at 1231. Kirkingburg sued Albertson's, claiming that firing him violated the ADA.[7] Albertson's moved for summary judgment *561 solely on the ground that Kirkingburg was "not `otherwise qualified' to perform the job of truck driver with or without reasonable accommodation." App. 39-40; see id., at 119. The District Court granted the motion, ruling that Albertson's had reasonably concluded that Kirkingburg was not qualified without an accommodation because he could not, as admitted, meet the basic DOT vision standards. The court held that giving Kirkingburg time to get a DOT waiver was not a required reasonable accommodation because the waiver program was "a flawed experiment that has not altered the DOT vision requirements." Id., at 120. A divided panel of the Ninth Circuit reversed. In addition to pressing its claim that Kirkingburg was not otherwise qualified, Albertson's for the first time on appeal took the position that it was entitled to summary judgment because Kirkingburg did not have a disability within the meaning of the Act. See id., at 182-185. The Court of Appeals considered but rejected the new argument, concluding that because Kirkingburg had presented "uncontroverted evidence" that his vision was effectively monocular, he had demonstrated that "the manner in which he sees differs significantly from the manner in which most people see." 143 F.3d, at 1232. That difference in manner, the court held, was sufficient to establish disability. Ibid. The Court of Appeals then addressed the ground upon which the District Court had granted summary judgment, acknowledging that Albertson's consistently required its truckdrivers to meet the DOT's basic vision standards and that Kirkingburg had not met them (and indeed could not). The court recognized that the ADA allowed Albertson's to establish a reasonable job-related vision standard as a prerequisite for hiring and that Albertson's could rely on Government regulations as a basis for setting its standard. The court held, however, that Albertson's could not use compliance *562 with a Government regulation as the justification for its vision requirement because the waiver program, which Albertson's disregarded, was "a lawful and legitimate part of the DOT regulatory scheme." Id., at 1236. The Court of Appeals conceded that Albertson's was free to set a vision standard different from that mandated by the DOT, but held that under the ADA, Albertson's would have to justify its independent standard as necessary to prevent "`a direct threat to the health or safety of other individuals in the workplace.' " Ibid. (quoting 42 U.S. C. § 12113(b)). Although the court suggested that Albertson's might be able to make such a showing on remand, 143 F.3d, at 1236, it ultimately took the position that the company could not, interpreting petitioner's rejection of DOT waivers as flying in the face of the judgment about safety already embodied in the DOT's decision to grant them, id., at 1237. Judge Rymer dissented. She contended that Albertson's had properly relied on the basic DOT vision standards in refusing to accept waivers because, when Albertson's fired Kirkingburg, the waiver program did not rest upon "a rule or a regulation with the force of law," but was merely a way of gathering data to use in deciding whether to refashion the still-applicable vision standards. Id., at 1239. II Though we need not speak to the issue whether Kirkingburg was an individual with a disability in order to resolve this case, that issue falls within the first question on which we granted certiorari,[8] 525 U.S. 1064 (1999), and we think it worthwhile to address it briefly in order to correct three missteps the Ninth Circuit made in its discussion of the matter. Under the ADA: *563 "The term `disability' means, with respect to an individual— "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; "(B) a record of such an impairment; or "(C) being regarded as having such an impairment." 42 U.S. C. § 12102(2). We are concerned only with the first definition.[9] There is no dispute either that Kirkingburg's amblyopia is a physical impairment within the meaning of the Act, see 29 CFR § 1630.2(h)(1) (1998) (defining "physical impairment" as "[a]ny physiological disorder, or condition . . . affecting one or more of the following body systems: . . . special sense organs"), or that seeing is one of his major life activities, see § 1630.2(i) (giving seeing as an example of a major life activity).[10] The question is whether his monocular vision alone "substantially limits" Kirkingburg's seeing. In giving its affirmative answer, the Ninth Circuit relied on a regulation issued by the Equal Employment Opportunity Commission (EEOC), defining "substantially limits" as "[s]ignificantly restrict[s] as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general *564 population can perform that same major life activity." § 1630.2(j)(ii). The Ninth Circuit concluded that "the manner in which [Kirkingburg] sees differs significantly from the manner in which most people see" because, "[t]o put it in its simplest terms [he] sees using only one eye; most people see using two." 143 F.3d, at 1232. The Ninth Circuit majority also relied on a recent Eighth Circuit decision, whose holding it characterized in similar terms: "It was enough to warrant a finding of disability . . . that the plaintiff could see out of only one eye: the manner in which he performed the major life activity of seeing was different." Ibid. (characterizing Doane v. Omaha, 115 F.3d 624, 627-628 (1997)).[11] But in several respects the Ninth Circuit was too quick to find a disability. First, although the EEOC definition *565 of "substantially limits" cited by the Ninth Circuit requires a "significant restrict[ion]" in an individual's manner of performing a major life activity, the court appeared willing to settle for a mere difference. By transforming "significant restriction" into "difference," the court undercut the fundamental statutory requirement that only impairments causing "substantial limitat[ions]" in individuals' ability to perform major life activities constitute disabilities. While the Act "addresses substantial limitations on major life activities, not utter inabilities," Bragdon v. Abbott, 524 U.S. 624, 641 (1998), it concerns itself only with limitations that are in fact substantial. Second, the Ninth Circuit appeared to suggest that in gauging whether a monocular individual has a disability a court need not take account of the individual's ability to compensate for the impairment. The court acknowledged that Kirkingburg's "brain has developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensates for his disability." 143 F.3d, at 1232. But in treating monocularity as itself sufficient to establish disability and in embracing Doane, the Ninth Circuit apparently adopted the view that whether "the individual had learned to compensate for the disability by making subconscious adjustments to the manner in which he sensed depth and perceived peripheral objects," 143 F.3d, at 1232, was irrelevant to the determination of disability. See, e. g., Sutton v. United Air Lines, Inc., 130 F.3d 893, 901, n. 7 (CA10 1997) (characterizing Doane as standing for the proposition that mitigating measures should be disregarded in assessing disability); EEOC v. Union Pacific R. Co., 6 F. Supp. 2d 1135, 1137 (Idaho 1998) (same). We have just held, however, in Sutton v. United Airlines, Inc., ante, at 482, that mitigating measures must be taken into account in judging whether an individual possesses a disability. We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and *566 measures undertaken, whether consciously or not, with the body's own systems. Finally, and perhaps most significantly, the Court of Appeals did not pay much heed to the statutory obligation to determine the existence of disabilities on a case-by-case basis. The Act expresses that mandate clearly by defining "disability" "with respect to an individual," 42 U.S. C. § 12102(2), and in terms of the impact of an impairment on "such individual," § 12102(2)(A). See Sutton, ante, at 483; cf. 29 CFR pt. 1630, App. § 1630.2(j) (1998) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); ibid. ("The determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis"). While some impairments may invariably cause a substantial limitation of a major life activity, cf. Bragdon, supra, at 642 (declining to address whether HIV infection is a per se disability), we cannot say that monocularity does. That category, as we understand it, may embrace a group whose members vary by the degree of visual acuity in the weaker eye, the age at which they suffered their vision loss, the extent of their compensating adjustments in visual techniques, and the ultimate scope of the restrictions on their visual abilities. These variables are not the stuff of a per se rule. While monocularity inevitably leads to some loss of horizontal field of vision and depth perception,[12] consequences the Ninth *567 Circuit mentioned, see 143 F.3d, at 1232, the court did not identify the degree of loss suffered by Kirkingburg, nor are we aware of any evidence in the record specifying the extent of his visual restrictions. This is not to suggest that monocular individuals have an onerous burden in trying to show that they are disabled. On the contrary, our brief examination of some of the medical literature leaves us sharing the Government's judgment that people with monocular vision "ordinarily" will meet the Act's definition of disability, Brief for United States et al. as Amici Curiae 11, and we suppose that defendant companies will often not contest the issue. We simply hold that the Act requires monocular individuals, like others claiming the Act's protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial. III Petitioner's primary contention is that even if Kirkingburg was disabled, he was not a "qualified" individual with a disability, see 42 U.S. C. § 12112(a), because Albertson's merely insisted on the minimum level of visual acuity set forth in the DOT's Motor Carrier Safety Regulations, 49 CFR § 391.41(b)(10) (1998). If Albertson's was entitled to enforce that standard as defining an "essential job functio[n] of the employment position," see 42 U.S. C. § 12111(8), that is the end of the case, for Kirkingburg concededly could not satisfy it.[13] *568 Under Title I of the ADA, employers may justify their use of "qualification standards . . . that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability," so long as such standards are "job-related and consistent with business necessity, and . . . performance cannot be accomplished by reasonable accommodation . . . ." § 12113(a). See also § 12112(b)(6) (defining discrimination to include "using qualification standards . . . that screen out or tend to screen out an individual with a disability . . . unless the standard . . . is shown to be job-related for the position in question and is consistent with business necessity").[14] Kirkingburg and the Government argue that these provisions do not authorize an employer to follow even a facially applicable regulatory standard subject to waiver without making some enquiry beyond determining whether the applicant or employee meets that standard, yes or no. Before an employer may insist on compliance, they say, the employer must make a showing with reference to the particular job that the waivable regulatory standard is "jobrelated . . . and . . . consistent with business necessity," see § 12112(b)(6), and that after consideration of the capabilities of the individual a reasonable accommodation could not fairly resolve the competing interests when an applicant or employee cannot wholly satisfy an otherwise justifiable job qualification. *569 The Government extends this argument by reference to a further section of the statute, which at first blush appears to be a permissive provision for the employer's and the public's benefit. An employer may impose as a qualification standard "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," § 12113(b), with "direct threat" being defined by the Act as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation," § 12111(3); see also 29 CFR § 1630.2(r) (1998). The Government urges us to read subsections (a) and (b) together to mean that when an employer would impose any safety qualification standard, however specific, tending to screen out individuals with disabilities, the application of the requirement must satisfy the ADA's "direct threat" criterion, see Brief for United States et al. as Amici Curiae 22. That criterion ordinarily requires "an individualized assessment of the individual's present ability to safely perform the essential functions of the job," 29 CFR § 1630.2(r) (1998), "based on medical or other objective evidence," Bragdon, 524 U. S., at 649 (citing School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288 (1987)); see 29 CFR § 1630.2(r) (1998) (assessment of direct threat "shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence").[15] *570 Albertson's answers essentially that even assuming the Government has proposed a sound reading of the statute for the general run of cases, this case is not in the general run. It is crucial to its position that Albertson's here was not insisting upon a job qualification merely of its own devising, subject to possible questions about genuine appropriateness and justifiable application to an individual for whom some accommodation may be reasonable. The job qualification it was applying was the distant visual acuity standard of the Federal Motor Carrier Safety Regulations, 49 CFR § 391.41(b)(10) (1998), which is made binding on Albertson's by § 391.11: "[A] motor carrier shall not . . . permit a person to drive a commercial motor vehicle unless that person is qualified to drive," by, among other things, meeting the physical qualification standards set forth in § 391.41. The validity of these regulations is unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations. If we looked no further, there would be no basis to question petitioner's unconditional obligation to follow the regulations and its consequent right to do so. This, indeed, was the understanding of Congress when it enacted the ADA, see infra, at 573-574.[16] But there is more: the waiver program. The Court of Appeals majority concluded that the waiver program "precludes [employers] from declaring that persons determined by DOT to be capable of performing the job of commercial truck driver are incapable of performing that job by virtue of their disability," and that in the face of a waiver *571 an employer "will not be able to avoid the [ADA's] strictures by showing that its standards are necessary to prevent a direct safety threat," 143 F.3d, at 1237. The Court of Appeals thus assumed that the regulatory provisions for the waiver program had to be treated as being on par with the basic visual acuity regulation, as if the general rule had been modified by some different safety standard made applicable by grant of a waiver. Cf. Conroy v. Aniskoff, 507 U.S. 511, 515 (1993) (noting the "`cardinal rule that a statute is to be read as a whole' " (quoting King v. St. Vincent's Hospital, 502 U.S. 215, 221 (1991))). On this reading, an individualized determination under a different substantive safety rule was an element of the regulatory regime, which would easily fit with any requirement of 42 U.S. C. §§ 12113(a) and (b) to consider reasonable accommodation. An employer resting solely on the federal standard for its visual acuity qualification would be required to accept a waiver once obtained, and probably to provide an applicant some opportunity to obtain a waiver whenever that was reasonably possible. If this was sound analysis, the District Court's summary judgment for Albertson's was error. But the reasoning underlying the Court of Appeals's decision was unsound, for we think it was error to read the regulations establishing the waiver program as modifying the content of the basic visual acuity standard in a way that disentitled an employer like Albertson's to insist on it. To be sure, this is not immediately apparent. If one starts with the statutory provisions authorizing regulations by the DOT as they stood at the time the DOT began the waiver program, one would reasonably presume that the general regulatory standard and the regulatory waiver standard ought to be accorded equal substantive significance, so that the content of any general regulation would as a matter of law be deemed modified by the terms of any waiver standard thus applied to it. Compare 49 U.S. C. App. § 2505(a)(3) (1988 ed.) ("Such regulation shall . . . ensure that . . . the physical *572 condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely"),[17] with 49 U.S. C. App. § 2505(f) (1988 ed.) ("After notice and an opportunity for comment, the Secretary may waive, in whole or in part, application of any regulation issued under this section with respect to any person or class of persons if the Secretary determines that such waiver is not contrary to the public interest and is consistent with the safe operation of commercial motor vehicles").[18] Safe operation is supposed to be the touchstone of regulation in each instance. As to the general visual acuity regulations in force under the former provision,[19] affirmative determinations that the selected standards were needed for safe operation were indeed the predicates of the DOT action. Starting in 1937, the federal agencies authorized to regulate commercial motor vehicle safety set increasingly rigorous visual acuity standards, culminating in the current one, which has remained unchanged since it became effective in 1971.[20] When *573 the FHWA proposed it, the agency found that "[a]ccident experience in recent years has demonstrated that reduction of the effects of organic and physical disorders, emotional impairments, and other limitations of the good health of drivers are increasingly important factors in accident prevention," 34 Fed. Reg. 9080, 9081 (1969) (Notice of Proposed Rule Making); the current standard was adopted to reflect the agency's conclusion that "drivers of modern, more complex vehicles" must be able to "withstand the increased physical and mental demands that their occupation now imposes." 35 Fed. Reg. 6458 (1970). Given these findings and "in the light of discussions with the Administration's medical advisers," id., at 6459, the FHWA made a considered determination about the level of visual acuity needed for safe operation of commercial motor vehicles in interstate commerce, an "area [in which] the risks involved are so well known and so serious as to dictate the utmost caution." Id., at 17419. For several reasons, one would expect any regulation governing a waiver program to establish a comparable substantive standard (albeit for exceptional cases), grounded on known facts indicating at least that safe operation would not be jeopardized. First, of course, safe operation was the criterion of the statute authorizing an administrative waiver scheme, as noted already. Second, the impetus to develop a waiver program was a concern that the existing substantive standard might be more demanding than safety required. When Congress enacted the ADA, it recognized that federal safety rules would limit application of the ADA as a matter of law. The Senate Labor and Human Resources Committee Report on the ADA stated that "a person with a disability applying for or currently holding a job subject to [DOT standards for drivers] must be able to satisfy these physical qualification standards in order to be considered a qualified individual with a disability under title I of this legislation." *574 S. Rep. No. 101-116, pp. 27-28 (1998). The two primary House Committees shared this understanding, see H. R. Rep. No. 101-485, pt. 2, p. 57 (1990) (House Education and Labor Committee Report); id., pt. 3, at 34 (House Judiciary Committee Report). Accordingly, two of these Committees asked "the Secretary of Transportation [to] undertake a thorough review" of current knowledge about the capabilities of individuals with disabilities and available technological aids and devices, and make "any necessary changes" within two years of the enactment of the ADA. S. Rep. No. 101-116, at 27-28; see H. R. Rep. No. 101-485, pt. 2, at 57; see also id., pt. 3, at 34 (expressing the expectation that the Secretary of Transportation would "review these requirements to determine whether they are valid under this Act"). Finally, when the FHWA instituted the waiver program it addressed the statutory mandate by stating in its notice of final disposition that the scheme would be "consistent with the safe operation of commercial motor vehicles," just as 49 U.S. C. App. § 2505(f) (1988 ed.) required, 57 Fed. Reg. 31460 (1992). And yet, despite this background, the regulations establishing the waiver program did not modify the general visual acuity standards. It is not that the waiver regulations failed to do so in a merely formal sense, as by turning waiver decisions on driving records, not sight requirements. The FHWA in fact made it clear that it had no evidentiary basis for concluding that the pre-existing standards could be lowered consistently with public safety. When, in 1992, the FHWA published an "[a]dvance notice of proposed rulemaking" requesting comments "on the need, if any, to amend its driver qualification requirements relating to the vision standard," id., at 6793, it candidly proposed its waiver scheme as simply a means of obtaining information bearing on the justifiability of revising the binding standards already in place, see id., at 10295. The agency explained that the "object of the waiver program is to provide objective data *575 to be considered in relation to a rulemaking exploring the feasibility of relaxing the current absolute vision standards in 49 CFR part 391 in favor of a more individualized standard." Ibid. As proposed, therefore, there was not only no change in the unconditional acuity standards, but no indication even that the FHWA then had a basis in fact to believe anything more lenient would be consistent with public safety as a general matter. After a bumpy stretch of administrative procedure, see Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1290 (CADC 1994), the FHWA's final disposition explained again that the waivers were proposed as a way to gather facts going to the wisdom of changing the existing law. The waiver program "will enable the FHWA to conduct a study comparing a group of experienced, visually deficient drivers with a control group of experienced drivers who meet the current Federal vision requirements. This study will provide the empirical data necessary to evaluate the relationships between specific visual deficiencies and the operation of [commercial motor vehicles]. The data will permit the FHWA to properly evaluate its current vision requirement in the context of actual driver performance, and, if necessary, establish a new vision requirement which is safe, fair, and rationally related to the latest medical knowledge and highway technology." 57 Fed. Reg. 31458 (1992). And if all this were not enough to show that the FHWA was planning to give waivers solely to collect information, it acknowledged that a study ithad commissioned had done no more than "`illuminat[e] the lack of empirical data to establish a link between vision disorders and commercial motor vehicle safety,' " and "`failed to provide a sufficient foundation on which to propose a satisfactory vision standard for drivers of [commercial motor vehicles] in interstate commerce,' " Advocates for Highway and Auto Safety, supra, at 1293 (quoting 57 Fed. Reg. 31458 (1992)). *576 In sum, the regulatory record made it plain that the waiver regulation did not rest on any final, factual conclusion that the waiver scheme would be conducive to public safety in the manner of the general acuity standards and did not purport to modify the substantive content of the general acuity regulation in any way. The waiver program was simply an experiment with safety, however well intended, resting on a hypothesis whose confirmation or refutation in practice would provide a factual basis for reconsidering the existing standards.[21] *577 Nothing in the waiver regulation, ofcourse, required an employer of commercial drivers to accept the hypothesis and participate in the Government's experiment. The only question, then, iswhether the ADA should be read to require such an employer to defend a decision to decline the experiment. Is it reasonable, that is,to read the ADA as requiring an employer like Albertson's to shoulder the general statutory burden to justify a job qualification that would tend to exclude the disabled, whenever the employer chooses to abide by the otherwise clearly applicable, unamended substantive regulatory standard despite the Government's willingness to waive it experimentally and without any finding of its being inappropriate? If the answer were yes, an employer would in fact have an obligation of which we can think of no comparable example in our law. The employer would be required in effect to justify de novo an existing and otherwise applicable safety regulation issued by the Government itself. The employer would be required on a caseby-case basis to reinvent the Government's own wheel when the Government had merely begun an experiment to provide data to consider changing the underlying specifications. And what is even more, the employer would be required to do so when the Government had made an affirmative record indicating that contemporary empirical evidence was hard to come by. It is simply not credible that Congress enacted the ADA (before there was any waiver program) with the understanding that employers choosing to respect the Government's sole substantive visual acuity regulation in the *578 face of an experimental waiver might be burdened with an obligation to defend the regulation's application according to its own terms. The judgment of the Ninth Circuit is accordingly reversed. It is so ordered.

[*] The question posed is whether, under the Americans with Disabilities Act of 1990 (ADA or Act), as amended, 42 U.S. C. 12101 et seq. ( ed. and Supp. III), an employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation must justify enforcing the regulation solely because its standard may be waived in an individual case. We answer no. I In August 1990, petitioner, Albertson's, Inc., a grocerystore chain with supermarkets in several States, hired respondent, Hallie Kirkingburg, as a truckdriver based at its Portland, Oregon, warehouse. Kirkingburg had more than a decade's driving experience and performed well when petitioner's transportation manager took him on a road test. Before starting work, Kirkingburg was examined to see if he met federal vision standards for commercial truckdrivers. For many decades the Department of Transportation and its predecessors have been responsible for devising these standards for individuals who drive commercial vehicles in interstate commerce.[1] Since 1971, the basic vision regulation has required corrected distant visual acuity of at least 20/40 in each eye *559 and distant binocular acuity of at least 20/40. See 6463 (1970); 6794 (1992); 49 CFR 391.41(b)(10)[2] Kirkingburg, however, suffers from amblyopia, an uncorrectable condition that leaves him with 20/200 vision in his left eye and monocular vision in effect.[3] Despite Kirkingburg's weak left eye, the doctor erroneously certified that he met the DOT's basic vision standards, and Albertson's hired him.[4] In December 1991, Kirkingburg injured himself on the job and took a leave of absence. Before returning to work in November 1992, Kirkingburg went for a further physical as required by the company. This time, the examining physician correctly assessed Kirkingburg's vision and explained that his eyesight did not meet the basic DOT standards. The physician, or his nurse, told Kirkingburg that in order to be legally qualified to drive, he would have to obtain a waiver of its basic vision standards from the DOT. See 143 *; App. 284-285. The doctor was alluding to a scheme begun in July 1992 for giving DOT certification to applicants with deficient vision who had three years of recent experience driving a commercial vehicle without a license suspension or revocation, involvement in a reportable accident in which the applicant was cited for a moving violation, conviction for certain driving-related offenses, citation for certain serious traffic violations, or more than two convictions for any other moving violations. A waiver applicant had to agree to have his vision checked annually for deterioration, and to report certain information about his driving experience to the Federal Highway Administration (FHWA or Administration), the agency within the DOT responsible for overseeing the motor carrier safety regulations. See 31460-31461 (1992).[5] Kirkingburg applied for a waiver, but because he could not meet the basic DOT vision standard Albertson's fired him from his job as a truckdriver.[6] In early 1993, after he had left Albertson's, Kirkingburg received a DOT waiver, but Albertson's refused to rehire him. See Kirkingburg sued Albertson's, claiming that firing him violated the ADA.[7] Albertson's moved for summary judgment *561 solely on the ground that Kirkingburg was "not `otherwise qualified' to perform the job of truck driver with or without reasonable accommodation." App. 39-40; see The District Court granted the motion, ruling that Albertson's had reasonably concluded that Kirkingburg was not qualified without an accommodation because he could not, as admitted, meet the basic DOT vision standards. The court held that giving Kirkingburg time to get a DOT waiver was not a required reasonable accommodation because the waiver program was "a flawed experiment that has not altered the DOT vision requirements." A divided panel of the Ninth Circuit reversed. In addition to pressing its claim that Kirkingburg was not otherwise qualified, Albertson's for the first time on appeal took the position that it was entitled to summary judgment because Kirkingburg did not have a disability within the meaning of the Act. See The Court of Appeals considered but rejected the new argument, concluding that because Kirkingburg had presented "uncontroverted evidence" that his vision was effectively monocular, he had demonstrated that "the manner in which he sees differs significantly from the manner in which most people see." That difference in manner, the court held, was sufficient to establish disability. The Court of Appeals then addressed the ground upon which the District Court had granted summary judgment, acknowledging that Albertson's consistently required its truckdrivers to meet the DOT's basic vision standards and that Kirkingburg had not met them (and indeed could not). The court recognized that the ADA allowed Albertson's to establish a reasonable job-related vision standard as a prerequisite for hiring and that Albertson's could rely on Government regulations as a basis for setting its standard. The court held, however, that Albertson's could not use compliance *562 with a Government regulation as the justification for its vision requirement because the waiver program, which Albertson's disregarded, was "a lawful and legitimate part of the DOT regulatory scheme." The Court of Appeals conceded that Albertson's was free to set a vision standard different from that mandated by the DOT, but held that under the ADA, Albertson's would have to justify its independent standard as necessary to prevent "`a direct threat to the health or safety of other individuals in the workplace.' " (quoting 42 U.S. C. 12113(b)). Although the court suggested that Albertson's might be able to make such a showing on 143 F.3d, it ultimately took the position that the company could not, interpreting petitioner's rejection of DOT waivers as flying in the face of the judgment about safety already embodied in the DOT's decision to grant them, Judge Rymer dissented. She contended that Albertson's had properly relied on the basic DOT vision standards in refusing to accept waivers because, when Albertson's fired Kirkingburg, the waiver program did not rest upon "a rule or a regulation with the force of law," but was merely a way of gathering data to use in deciding whether to refashion the still-applicable vision standards. II Though we need not speak to the issue whether Kirkingburg was an individual with a disability in order to resolve this case, that issue falls within the first question on which we granted certiorari,[8] and we think it worthwhile to address it briefly in order to correct three missteps the Ninth Circuit made in its discussion of the matter. Under the ADA: *563 "The term `disability' means, with respect to an individual— "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; "(B) a record of such an impairment; or "(C) being regarded as having such an impairment." 42 U.S. C. 12102(2). We are concerned only with the first definition.[9] There is no dispute either that Kirkingburg's amblyopia is a physical impairment within the meaning of the Act, see 29 CFR 1630.2(h)(1) or that seeing is one of his major life activities, see 1630.2(i) (giving seeing as an example of a major life activity).[10] The question is whether his monocular vision alone "substantially limits" Kirkingburg's seeing. In giving its affirmative answer, the Ninth Circuit relied on a regulation issued by the Equal Employment Opportunity Commission (EEOC), defining "substantially limits" as "[s]ignificantly restrict[s] as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general *564 population can perform that same major life activity." 1630.2(j)(ii). The Ninth Circuit concluded that "the manner in which [Kirkingburg] sees differs significantly from the manner in which most people see" because, "[t]o put it in its simplest terms [he] sees using only one eye; most people see using two." The Ninth Circuit majority also relied on a recent Eighth Circuit decision, whose holding it characterized in similar terms: "It was enough to warrant a finding of disability that the plaintiff could see out of only one eye: the manner in which he performed the major life activity of seeing was different." ).[11] But in several respects the Ninth Circuit was too quick to find a disability. First, although the EEOC definition *565 of "substantially limits" cited by the Ninth Circuit requires a "significant restrict[ion]" in an individual's manner of performing a major life activity, the court appeared willing to settle for a mere difference. By transforming "significant restriction" into "difference," the court undercut the fundamental statutory requirement that only impairments causing "substantial limitat[ions]" in individuals' ability to perform major life activities constitute disabilities. While the Act "addresses substantial limitations on major life activities, not utter inabilities," it concerns itself only with limitations that are in fact substantial. Second, the Ninth Circuit appeared to suggest that in gauging whether a monocular individual has a disability a court need not take account of the individual's ability to compensate for the impairment. The court acknowledged that Kirkingburg's "brain has developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensates for his disability." But in treating monocularity as itself sufficient to establish disability and in embracing Doane, the Ninth Circuit apparently adopted the view that whether "the individual had learned to compensate for the disability by making subconscious adjustments to the manner in which he sensed depth and perceived peripheral objects," was irrelevant to the determination of disability. See, e. g., ; We have just held, however, in Sutton v. United Airlines, Inc., ante, at 482, that mitigating measures must be taken into account in judging whether an individual possesses a disability. We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and *566 measures undertaken, whether consciously or not, with the body's own systems. Finally, and perhaps most significantly, the Court of Appeals did not pay much heed to the statutory obligation to determine the existence of disabilities on a case-by-case basis. The Act expresses that mandate clearly by defining "disability" "with respect to an individual," 42 U.S. C. 12102(2), and in terms of the impact of an impairment on "such individual," 12102(2)(A). See Sutton, ante, at 483; cf. 29 CFR pt. 1630, App. 1630.2(j) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); While some impairments may invariably cause a substantial limitation of a major life activity, cf. we cannot say that monocularity does. That category, as we understand it, may embrace a group whose members vary by the degree of visual acuity in the weaker eye, the age at which they suffered their vision loss, the extent of their compensating adjustments in visual techniques, and the ultimate scope of the restrictions on their visual abilities. These variables are not the stuff of a per se rule. While monocularity inevitably leads to some loss of horizontal field of vision and depth perception,[12] consequences the Ninth *567 Circuit mentioned, see the court did not identify the degree of loss suffered by Kirkingburg, nor are we aware of any evidence in the record specifying the extent of his visual restrictions. This is not to suggest that monocular individuals have an onerous burden in trying to show that they are disabled. On the contrary, our brief examination of some of the medical literature leaves us sharing the Government's judgment that people with monocular vision "ordinarily" will meet the Act's definition of disability, Brief for United States et al. as Amici Curiae 11, and we suppose that defendant companies will often not contest the issue. We simply hold that the Act requires monocular individuals, like others claiming the Act's protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial. III Petitioner's primary contention is that even if Kirkingburg was disabled, he was not a "qualified" individual with a disability, see 42 U.S. C. 12112(a), because Albertson's merely insisted on the minimum level of visual acuity set forth in the DOT's Motor Carrier Safety Regulations, 49 CFR 391.41(b)(10) If Albertson's was entitled to enforce that standard as defining an "essential job functio[n] of the employment position," see 42 U.S. C. 12111(8), that is the end of the case, for Kirkingburg concededly could not satisfy it.[13] *568 Under Title I of the ADA, employers may justify their use of "qualification standards that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability," so long as such standards are "job-related and consistent with business necessity, and performance cannot be accomplished by reasonable accommodation" 12113(a). See also 12112(b)(6) (defining discrimination to include "using qualification standards that screen out or tend to screen out an individual with a disability unless the standard is shown to be job-related for the position in question and is consistent with business necessity").[14] Kirkingburg and the Government argue that these provisions do not authorize an employer to follow even a facially applicable regulatory standard subject to waiver without making some enquiry beyond determining whether the applicant or employee meets that standard, yes or no. Before an employer may insist on compliance, they say, the employer must make a showing with reference to the particular job that the waivable regulatory standard is "jobrelated and consistent with business necessity," see 12112(b)(6), and that after consideration of the capabilities of the individual a reasonable accommodation could not fairly resolve the competing interests when an applicant or employee cannot wholly satisfy an otherwise justifiable job qualification. *569 The Government extends this argument by reference to a further section of the statute, which at first blush appears to be a permissive provision for the employer's and the public's benefit. An employer may impose as a qualification standard "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," 12113(b), with "direct threat" being defined by the Act as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation," 12111(3); see also 29 CFR 1630.2(r) The Government urges us to read subsections (a) and (b) together to mean that when an employer would impose any safety qualification standard, however specific, tending to screen out individuals with disabilities, the application of the requirement must satisfy the ADA's "direct threat" criterion, see Brief for United States et al. as Amici Curiae 22. That criterion ordinarily requires "an individualized assessment of the individual's present ability to safely perform the essential functions of the job," 29 CFR 1630.2(r) "based on medical or other objective evidence," ); see 29 CFR 1630.2(r)[15] *570 Albertson's answers essentially that even assuming the Government has proposed a sound reading of the statute for the general run of cases, this case is not in the general run. It is crucial to its position that Albertson's here was not insisting upon a job qualification merely of its own devising, subject to possible questions about genuine appropriateness and justifiable application to an individual for whom some accommodation may be reasonable. The job qualification it was applying was the distant visual acuity standard of the Federal Motor Carrier Safety Regulations, 49 CFR 391.41(b)(10) which is made binding on Albertson's by 391.11: "[A] motor carrier shall not permit a person to drive a commercial motor vehicle unless that person is qualified to drive," by, among other things, meeting the physical qualification standards set forth in 391.41. The validity of these regulations is unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations. If we looked no further, there would be no basis to question petitioner's unconditional obligation to follow the regulations and its consequent right to do so. This, indeed, was the understanding of Congress when it enacted the ADA, see infra, at 573-574.[16] But there is more: the waiver program. The Court of Appeals majority concluded that the waiver program "precludes [employers] from declaring that persons determined by DOT to be capable of performing the job of commercial truck driver are incapable of performing that job by virtue of their disability," and that in the face of a waiver *571 an employer "will not be able to avoid the [ADA's] strictures by showing that its standards are necessary to prevent a direct safety threat," 143 F.3d, The Court of Appeals thus assumed that the regulatory provisions for the waiver program had to be treated as being on par with the basic visual acuity regulation, as if the general rule had been modified by some different safety standard made applicable by grant of a waiver. Cf. On this reading, an individualized determination under a different substantive safety rule was an element of the regulatory regime, which would easily fit with any requirement of 42 U.S. C. 12113(a) and (b) to consider reasonable accommodation. An employer resting solely on the federal standard for its visual acuity qualification would be required to accept a waiver once obtained, and probably to provide an applicant some opportunity to obtain a waiver whenever that was reasonably possible. If this was sound analysis, the District Court's summary judgment for Albertson's was error. But the reasoning underlying the Court of Appeals's decision was unsound, for we think it was error to read the regulations establishing the waiver program as modifying the content of the basic visual acuity standard in a way that disentitled an employer like Albertson's to insist on it. To be sure, this is not immediately apparent. If one starts with the statutory provisions authorizing regulations by the DOT as they stood at the time the DOT began the waiver program, one would reasonably presume that the general regulatory standard and the regulatory waiver standard ought to be accorded equal substantive significance, so that the content of any general regulation would as a matter of law be deemed modified by the terms of any waiver standard thus applied to it. Compare 49 U.S. C. App. 2505(a)(3) (1988 ed.) ("Such regulation shall ensure that the physical *572 condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely"),[17] with 49 U.S. C. App. 2505(f) (1988 ed.) ("After notice and an opportunity for comment, the Secretary may waive, in whole or in part, application of any regulation issued under this section with respect to any person or class of persons if the Secretary determines that such waiver is not contrary to the public interest and is consistent with the safe operation of commercial motor vehicles").[18] Safe operation is supposed to be the touchstone of regulation in each instance. As to the general visual acuity regulations in force under the former provision,[19] affirmative determinations that the selected standards were needed for safe operation were indeed the predicates of the DOT action. Starting in 1937, the federal agencies authorized to regulate commercial motor vehicle safety set increasingly rigorous visual acuity standards, culminating in the current one, which has remained unchanged since it became effective in 1971.[20] When *573 the FHWA proposed it, the agency found that "[a]ccident experience in recent years has demonstrated that reduction of the effects of organic and physical disorders, emotional impairments, and other limitations of the good health of drivers are increasingly important factors in accident prevention," 9081 (1969) (Notice of Proposed Rule Making); the current standard was adopted to reflect the agency's conclusion that "drivers of modern, more complex vehicles" must be able to "withstand the increased physical and mental demands that their occupation now imposes." (1970). Given these findings and "in the light of discussions with the Administration's medical advisers," the FHWA made a considered determination about the level of visual acuity needed for safe operation of commercial motor vehicles in interstate commerce, an "area [in which] the risks involved are so well known and so serious as to dictate the utmost caution." For several reasons, one would expect any regulation governing a waiver program to establish a comparable substantive standard (albeit for exceptional cases), grounded on known facts indicating at least that safe operation would not be jeopardized. First, of course, safe operation was the criterion of the statute authorizing an administrative waiver scheme, as noted already. Second, the impetus to develop a waiver program was a concern that the existing substantive standard might be more demanding than safety required. When Congress enacted the ADA, it recognized that federal safety rules would limit application of the ADA as a matter of law. The Senate Labor and Human Resources Committee Report on the ADA stated that "a person with a disability applying for or currently holding a job subject to [DOT standards for drivers] must be able to satisfy these physical qualification standards in order to be considered a qualified individual with a disability under title I of this legislation." *574 S. Rep. No. 101-116, pp. 27-28 The two primary House Committees shared this understanding, see H. R. Rep. No. 101-485, pt. 2, p. 57 (1990) (House Education and Labor Committee Report); pt. 3, at 34 (House Judiciary Committee Report). Accordingly, two of these Committees asked "the Secretary of Transportation [to] undertake a thorough review" of current knowledge about the capabilities of individuals with disabilities and available technological aids and devices, and make "any necessary changes" within two years of the enactment of the ADA. S. Rep. No. 101-116, at 27-28; see H. R. Rep. No. 101-485, pt. 2, at 57; see also pt. 3, at 34 (expressing the expectation that the Secretary of Transportation would "review these requirements to determine whether they are valid under this Act"). Finally, when the FHWA instituted the waiver program it addressed the statutory mandate by stating in its notice of final disposition that the scheme would be "consistent with the safe operation of commercial motor vehicles," just as 49 U.S. C. App. 2505(f) (1988 ed.) required, (1992). And yet, despite this background, the regulations establishing the waiver program did not modify the general visual acuity standards. It is not that the waiver regulations failed to do so in a merely formal sense, as by turning waiver decisions on driving records, not sight requirements. The FHWA in fact made it clear that it had no evidentiary basis for concluding that the pre-existing standards could be lowered consistently with public safety. When, in 1992, the FHWA published an "[a]dvance notice of proposed rulemaking" requesting comments "on the need, if any, to amend its driver qualification requirements relating to the vision standard," it candidly proposed its waiver scheme as simply a means of obtaining information bearing on the justifiability of revising the binding standards already in place, see The agency explained that the "object of the waiver program is to provide objective data *575 to be considered in relation to a rulemaking exploring the feasibility of relaxing the current absolute vision standards in 49 CFR part 391 in favor of a more individualized standard." As proposed, therefore, there was not only no change in the unconditional acuity standards, but no indication even that the FHWA then had a basis in fact to believe anything more lenient would be consistent with public safety as a general matter. After a bumpy stretch of administrative procedure, see Advocates for Highway and 28 F.3d 1, the FHWA's final disposition explained again that the waivers were proposed as a way to gather facts going to the wisdom of changing the existing law. The waiver program "will enable the FHWA to conduct a study comparing a group of experienced, visually deficient drivers with a control group of experienced drivers who meet the current Federal vision requirements. This study will provide the empirical data necessary to evaluate the relationships between specific visual deficiencies and the operation of [commercial motor vehicles]. The data will permit the FHWA to properly evaluate its current vision requirement in the context of actual driver performance, and, if necessary, establish a new vision requirement which is safe, fair, and rationally related to the latest medical knowledge and highway technology." (1992). And if all this were not enough to show that the FHWA was planning to give waivers solely to collect information, it acknowledged that a study ithad commissioned had done no more than "`illuminat[e] the lack of empirical data to establish a link between vision disorders and commercial motor vehicle safety,' " and "`failed to provide a sufficient foundation on which to propose a satisfactory vision standard for drivers of [commercial motor vehicles] in interstate commerce,' " Advocates for Highway and Safety, (quoting (1992)). *576 In sum, the regulatory record made it plain that the waiver regulation did not rest on any final, factual conclusion that the waiver scheme would be conducive to public safety in the manner of the general acuity standards and did not purport to modify the substantive content of the general acuity regulation in any way. The waiver program was simply an experiment with safety, however well intended, resting on a hypothesis whose confirmation or refutation in practice would provide a factual basis for reconsidering the existing standards.[21] *577 Nothing in the waiver regulation, ofcourse, required an employer of commercial drivers to accept the hypothesis and participate in the Government's experiment. The only question, then, iswhether the ADA should be read to require such an employer to defend a decision to decline the experiment. Is it reasonable, that is,to read the ADA as requiring an employer like Albertson's to shoulder the general statutory burden to justify a job qualification that would tend to exclude the disabled, whenever the employer chooses to abide by the otherwise clearly applicable, unamended substantive regulatory standard despite the Government's willingness to waive it experimentally and without any finding of its being inappropriate? If the answer were yes, an employer would in fact have an obligation of which we can think of no comparable example in our law. The employer would be required in effect to justify de novo an existing and otherwise applicable safety regulation issued by the Government itself. The employer would be required on a caseby-case basis to reinvent the Government's own wheel when the Government had merely begun an experiment to provide data to consider changing the underlying specifications. And what is even more, the employer would be required to do so when the Government had made an affirmative record indicating that contemporary empirical evidence was hard to come by. It is simply not credible that Congress enacted the ADA (before there was any waiver program) with the understanding that employers choosing to respect the Government's sole substantive visual acuity regulation in the *578 face of an experimental waiver might be burdened with an obligation to defend the regulation's application according to its own terms. The judgment of the Ninth Circuit is accordingly reversed. It is so ordered.

Justice Thomas

concurring

Albertson's, Inc. v. Kirkingburg

1999-06-22

https://www.courtlistener.com/opinion/118314/albertsons-inc-v-kirkingburg/

https://www.courtlistener.com/api/rest/v3/clusters/118314/

1998-087

As the Government reads the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 327, as amended, 42 U.S. C. § 12101 et seq. (1994 ed. and Supp. III), it requires that petitioner justify the Department of Transportation's (DOT) visual acuity standards as job related, consistent with business necessity, and required to prevent employees from imposing a direct threat to the health and safety of others in the workplace. The Court assumes, for purposes of this case, that the Government's reading is, for the most part, correct. Ante, at 569, and n. 15. I agree with the Court's decision that, even when the case is analyzed through the Government's proposed lens, petitioner was entitled to summary judgment in this case. As the Court explains, ante, at 577 and this page, it would be unprecedented and nonsensical to interpret § 12113 to require petitioner to defend the application of the Government's regulation to respondent when petitioner has an unconditional obligation to enforce the federal law. As the Court points out, though, ante, at 567, DOT's visual acuity standards might also be relevant to the question whether respondent was a "qualified individual with a disability" under 42 U.S. C. § 12112(a). That section provides that no covered entity "shall discriminate against a qualified individual with a disability because of the disability of such individual." Presumably, then, a plaintiff claiming a cause of action under the ADA bears the burden of proving, inter alia, that he is a qualified individual. The phrase "qualified individual with a disability" is defined to mean: *579 "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job this description shall be considered evidence of the essential functions of the job." § 12111(8) (emphasis added). In this case, respondent sought a job driving trucks in interstate commerce. The quintessential function of that job, it seems to me, is to be able to drive a commercial truck in interstate commerce, and it was respondent's burden to prove that he could do so. As the Court explains, ante, at 570, DOT's Motor Carrier Safety Regulations have the force of law and bind petitioner—it may not, by law, "permit a person to drive a commercial motor vehicle unless that person is qualified to drive." 49 CFR § 391.11 (1999). But by the same token, DOT's regulations bind respondent, who "shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle." Ibid.; see also § 391.41 ("A person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so"). Given that DOT's regulation equally binds petitioner and respondent, and that it is conceded in this case that respondent could not meet the federal requirements, respondent surely was not "qualified" to perform the essential functions of petitioner's truckdriver job without a reasonable accommodation. The waiver program might be thought of as a way to reasonably accommodate respondent, but for the fact, as the Court explains, ante, at 571-576, that the program did nothing to modify the regulation's unconditional requirements. *580 For that reason, requiring petitioner to make such an accommodation most certainly would have been unreasonable. The result of this case is the same under either view of the statute. If forced to choose between these alternatives, however, I would prefer to hold that respondent, as a matter of law, was not qualified to perform the job he sought within the meaning of the ADA. I nevertheless join the Court's opinion. The Ninth Circuit below viewed respondent's ADA claim on the Government's terms and petitioner's argument here appears to be tailored around the Government's view. In these circumstances, I agree with the Court's approach. I join the Court's opinion, however, only on the understanding that it leaves open the argument that federal laws such as DOT's visual acuity standards might be critical in determining whether a plaintiff is a "qualified individual with a disability."

As the Government reads the Americans with Disabilities Act of 1990 (ADA or Act), as amended, 42 U.S. C. 12101 et seq. (1994 ed. and Supp. III), it requires that petitioner justify the Department of Transportation's (DOT) visual acuity standards as job related, consistent with business necessity, and required to prevent employees from imposing a direct threat to the health and safety of others in the workplace. The Court assumes, for purposes of this case, that the Government's reading is, for the most part, correct. Ante, at 569, and n. 15. I agree with the Court's decision that, even when the case is analyzed through the Government's proposed lens, petitioner was entitled to summary judgment in this case. As the Court explains, ante, at 577 and this page, it would be unprecedented and nonsensical to interpret 12113 to require petitioner to defend the application of the Government's regulation to respondent when petitioner has an unconditional obligation to enforce the federal law. As the Court points out, though, ante, at 567, DOT's visual acuity standards might also be relevant to the question whether respondent was a "qualified individual with a disability" under 42 U.S. C. 12112(a). That section provides that no covered entity "shall discriminate against a qualified individual with a disability because of the disability of such individual." Presumably, then, a plaintiff claiming a cause of action under the ADA bears the burden of proving, inter alia, that he is a qualified individual. The phrase "qualified individual with a disability" is defined to mean: *579 "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job this description shall be considered evidence of the essential functions of the job." 12111(8) (emphasis added). In this case, respondent sought a job driving trucks in interstate commerce. The quintessential function of that job, it seems to me, is to be able to drive a commercial truck in interstate commerce, and it was respondent's burden to prove that he could do so. As the Court explains, ante, at 570, DOT's Motor Carrier Safety Regulations have the force of law and bind petitioner—it may not, by law, "permit a person to drive a commercial motor vehicle unless that person is qualified to drive." 49 CFR 391.11 (1999). But by the same token, DOT's regulations bind respondent, who "shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle." Ibid.; see also 391.41 ("A person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so"). Given that DOT's regulation equally binds petitioner and respondent, and that it is conceded in this case that respondent could not meet the federal requirements, respondent surely was not "qualified" to perform the essential functions of petitioner's truckdriver job without a reasonable accommodation. The waiver program might be thought of as a way to reasonably accommodate respondent, but for the fact, as the Court explains, ante, at 571-576, that the program did nothing to modify the regulation's unconditional requirements. *580 For that reason, requiring petitioner to make such an accommodation most certainly would have been unreasonable. The result of this case is the same under either view of the statute. If forced to choose between these alternatives, however, I would prefer to hold that respondent, as a matter of law, was not qualified to perform the job he sought within the meaning of the ADA. I nevertheless join the Court's opinion. The Ninth Circuit below viewed respondent's ADA claim on the Government's terms and petitioner's argument here appears to be tailored around the Government's view. In these circumstances, I agree with the Court's approach. I join the Court's opinion, however, only on the understanding that it leaves open the argument that federal laws such as DOT's visual acuity standards might be critical in determining whether a plaintiff is a "qualified individual with a disability."

Justice Stevens

majority

Richards v. Wisconsin

1997-04-28

https://www.courtlistener.com/opinion/118103/richards-v-wisconsin/

https://www.courtlistener.com/api/rest/v3/clusters/118103/

1996-047

In Wilson v. Arkansas, 514 U.S. 927 (1995), we held that the Fourth Amendment incorporates the common-law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, we recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests," id., at 934, and left "to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment," id., at 936. In this case, the Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony *388 drug investigation. In so doing, it reaffirmed a pre-Wilson holding and concluded that Wilson did not preclude this per se rule. We disagree with the court's conclusion that the Fourth Amendment permits a blanket exception to the knock-and-announce requirement for this entire category of criminal activity. But because the evidence presented to support the officers' actions in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, we affirm the judgment of the Wisconsin court. I On December 31, 1991, police officers in Madison, Wisconsin, obtained a warrant to search Steiney Richards' motel room for drugs and related paraphernalia. The search warrant was the culmination of an investigation that had uncovered substantial evidence that Richards was one of several individuals dealing drugs out of hotel rooms in Madison. The police requested a warrant that would have given advance authorization for a "no-knock" entry into the motel room, but the Magistrate explicitly deleted those portions of the warrant. App. 7, 9. The officers arrived at the motel room at 3:40 a.m. Officer Pharo, dressed as a maintenance man, led the team. With him were several plainclothes officers and at least one man in uniform. Officer Pharo knocked on Richards' door and, responding to the query from inside the room, stated that he was a maintenance man. With the chain still on the door, Richards cracked it open. Although there is some dispute as to what occurred next, Richards acknowledges that when he opened the door he saw the man in uniform standing behind Officer Pharo. Brief for Petitioner 6. He quickly slammed the door closed and, after waiting two or three seconds, the officers began kicking and ramming the door to gain entry to the locked room. At trial, the officers testified that they identified themselves as police while they were kicking the door in. App. 40. When they finally did break *389 into the room, the officers caught Richards trying to escape through the window. They also found cash and cocaine hidden in plastic bags above the bathroom ceiling tiles. Richards sought to have the evidence from his motel room suppressed on the ground that the officers had failed to knock and announce their presence prior to forcing entry into the room. The trial court denied the motion, concluding that the officers could gather from Richards' strange behavior when they first sought entry that he knew they were police officers and that he might try to destroy evidence or to escape. Id., at 54. The judge emphasized that the easily disposable nature of the drugs the police were searching for further justified their decision to identify themselves as they crossed the threshold instead of announcing their presence before seeking entry. Id., at 55. Richards appealed the decision to the Wisconsin Supreme Court and that court affirmed. 201 Wis. 2d 845, 549 N.W.2d 218 (1996). The Wisconsin Supreme Court did not delve into the events underlying Richards' arrest in any detail, but accepted the following facts: "[O]n December 31, 1991, police executed a search warrant for the motel room of the defendant seeking evidence of the felonious crime of Possession with Intent to Deliver a Controlled Substance in violation of Wis. Stat. § 161.41(1m) (1991-92). They did not knock and announce prior to their entry. Drugs were seized." Id., at 849, 549 N.W.2d, at 220. Assuming these facts, the court proceeded to consider whether our decision in Wilson required the court to abandon its decision in State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994), cert. denied, 515 U.S. 1102 (1995), which held that "when the police have a search warrant, supported by probable cause, to search a residence for evidence of delivery of drugs or evidence of possession with intent to deliver drugs, they necessarily have reasonable cause to believe exigent circumstances exist" to justify a no-knock entry. 201 Wis. 2d, at 852, 549 N. W. 2d, at 221. The court concluded *390 that nothing in Wilson `s acknowledgment that the knockand-announce rule was an element of the Fourth Amendment "reasonableness" requirement would prohibit application of a per se exception to that rule in a category of cases. 201 Wis. 2d, at 854-855, 549 N. W. 2d, at 220. In reaching this conclusion, the Wisconsin court found it reasonable—after considering criminal conduct surveys, newspaper articles, and other judicial opinions—to assume that all felony drug crimes will involve "an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police." Id., at 847-848, 549 N.W.2d, at 219. Notwithstanding its acknowledgment that in "some cases, police officers will undoubtedly decide that their safety, the safety of others, and the effective execution of the warrant dictate that they knock and announce," id., at 863, 549 N.W.2d, at 225, the court concluded that exigent circumstances justifying a no-knock entry are always present in felony drug cases. Further, the court reasoned that the violation of privacy that occurs when officers who have a search warrant forcibly enter a residence without first announcing their presence is minimal, given that the residents would ultimately be without authority to refuse the police entry. The principal intrusion on individual privacy interests in such a situation, the court concluded, comes from the issuance of the search warrant, not the manner in which it is executed. Id., at 864-865, 549 N.W.2d, at 226. Accordingly, the court determined that police in Wisconsin do not need specific information about dangerousness, or the possible destruction of drugs in a particular case, in order to dispense with the knock-and-announce requirement in felony drug cases.[1] *391 Justice Abrahamson concurred in the judgment because, in her view, the facts found by the trial judge justified a no-knock entry. Id., at 866-868, 549 N.W.2d, at 227. Specifically, she noted that Richards' actions in slamming the door when he saw the uniformed man standing behind Officer Pharo indicated that he already knew that the people knocking on his door were police officers. Under these circumstances, any further announcement of their presence would have been a useless gesture. Id., at 868-869, n. 3, 549 N.W.2d, at 228, n. 3. While agreeing with the outcome, Justice Abrahamson took issue with her colleagues' affirmation of the blanket exception to the knock-and-announce requirement in drug felony cases. She observed that the constitutional reasonableness of a search has generally been a matter left to the court, rather than to the officers who conducted the search, and she objected to the creation of a blanket rule that insulated searches in a particular category of crime from the neutral oversight of a reviewing judge. Id., at 868-875, 549 N.W.2d, at 228-230. II We recognized in Wilson that the knock-and-announce requirement could give way "under circumstances presenting a threat of physical violence," or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given." 514 U.S., at 936. It is indisputable that felony drug investigations may frequently involve both of these circumstances.[2] The question we must *392 resolve is whether this fact justifies dispensing with caseby-case evaluation of the manner in which a search was executed.[3] The Wisconsin court explained its blanket exception as necessitated by the special circumstances of today's drug culture, 201 Wis. 2d, at 863-866, 549 N. W. 2d, at 226-227, and the State asserted at oral argument that the blanket exception was reasonable in "felony drug cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs." Tr. of Oral Arg. 26. But creating exceptions to the knock-and-announce rule based on the "culture" surrounding a general category of criminal behavior presents at least two serious concerns.[4] *393 First, the exception contains considerable over generalization. For example, while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock entry.[5] Wisconsin's blanket rule impermissibly insulates these cases from judicial review. A second difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the *394 reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se exception were allowed for each category of criminal investigation that included a considerable—albeit hypothetical—risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless. Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard—as opposed to a probable-cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Cf. Maryland v. Buie, 494 U.S. 325, 337 (1990) (allowing a protective sweep of a house during an arrest where the officers have "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene"); Terry v. Ohio, 392 U.S. 1, 30 (1968) (requiring a reasonable and articulable suspicion of danger to justify a patdown search). This showing is not high, but the police *395 should be required to make it whenever the reasonableness of a no-knock entry is challenged. III Although we reject the Wisconsin court's blanket exception to the knock-and-announce requirement, we conclude that the officers' no-knock entry into Richards' motel room did not violate the Fourth Amendment. We agree with the trial court, and with Justice Abrahamson, that the circumstances in this case show that the officers had a reasonable suspicion that Richards might destroy evidence if given further opportunity to do so.[6] The judge who heard testimony at Richards' suppression hearing concluded that it was reasonable for the officers executing the warrant to believe that Richards knew, after opening the door to his motel room the first time, that the men seeking entry to his room were the police. App. 54. Once the officers reasonably believed that Richards knew who they were, the court concluded, it was reasonable for them to force entry immediately given the disposable nature of the drugs. Id., at 55. In arguing that the officers' entry was unreasonable, Richards places great emphasis on the fact that the Magistrate who signed the search warrant for his motel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no-knock entry. But this fact does not alter the reasonableness of the officers' decision, which must be evaluated as of the time they entered the motel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the Magistrate, to justify a no-knock warrant. Of course, *396 the Magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards' motel room.[7] These actual circumstances—petitioner's apparent recognition of the officers combined with the easily disposable nature of the drugs— justified the officers' ultimate decision to enter without first announcing their presence and authority. Accordingly, although we reject the blanket exception to the knock-and-announce requirement for felony drug investigations, the judgment of the Wisconsin Supreme Court is affirmed. It is so ordered.

In we held that the Fourth Amendment incorporates the common-law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible At the same time, we recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests," and left "to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment," In this case, the Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony *88 drug investigation. In so doing, it reaffirmed a pre-Wilson holding and concluded that Wilson did not preclude this per se rule. We disagree with the court's conclusion that the Fourth Amendment permits a blanket exception to the knock-and-announce requirement for this entire category of criminal activity. But because the evidence presented to support the officers' actions in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, we affirm the judgment of the Wisconsin court. I On December 1, 1991, police officers in Madison, Wisconsin, obtained a warrant to search Steiney Richards' motel room for drugs and related paraphernalia. The search warrant was the culmination of an investigation that had uncovered substantial evidence that Richards was one of several individuals dealing drugs out of hotel rooms in Madison. The police requested a warrant that would have given advance authorization for a "no-knock" entry into the motel room, but the Magistrate explicitly deleted those portions of the warrant. App. 7, 9. The officers arrived at the motel room at :40 a.m. Officer Pharo, dressed as a maintenance man, led the team. With him were several plainclothes officers and at least one man in uniform. Officer Pharo knocked on Richards' door and, responding to the query from inside the room, stated that he was a maintenance man. With the chain still on the door, Richards cracked it open. Although there is some dispute as to what occurred next, Richards acknowledges that when he opened the door he saw the man in uniform standing behind Officer Pharo. Brief for Petitioner 6. He quickly slammed the door closed and, after waiting two or three seconds, the officers began kicking and ramming the door to gain entry to the locked room. At trial, the officers testified that they identified themselves as police while they were kicking the door in. App. 40. When they finally did break *89 into the room, the officers caught Richards trying to escape through the window. They also found cash and cocaine hidden in plastic bags above the bathroom ceiling tiles. Richards sought to have the evidence from his motel room suppressed on the ground that the officers had failed to knock and announce their presence prior to forcing entry into the room. The trial court denied the motion, concluding that the officers could gather from Richards' strange behavior when they first sought entry that he knew they were police officers and that he might try to destroy evidence or to escape. The judge emphasized that the easily disposable nature of the drugs the police were searching for further justified their decision to identify themselves as they crossed the threshold instead of announcing their presence before seeking Richards appealed the decision to the Wisconsin Supreme Court and that court affirmed. The Wisconsin Supreme Court did not delve into the events underlying Richards' arrest in any detail, but accepted the following facts: "[O]n December 1, 1991, police executed a search warrant for the motel room of the defendant seeking evidence of the felonious crime of Possession with Intent to Deliver a Controlled Substance in violation of (1m) (1991-92). They did not knock and announce prior to their Drugs were seized." Assuming these facts, the court proceeded to consider whether our decision in Wilson required the court to abandon its decision in cert. denied, which held that "when the police have a search warrant, supported by probable cause, to search a residence for evidence of delivery of drugs or evidence of possession with intent to deliver drugs, they necessarily have reasonable cause to believe exigent circumstances exist" to justify a no-knock 549 N. W. 2d, at 221. The court concluded *90 that nothing in Wilson `s acknowledgment that the knockand-announce rule was an element of the Fourth Amendment "reasonableness" requirement would prohibit application of a per se exception to that rule in a category of -855, 549 N. W. 2d, at 220. In reaching this conclusion, the Wisconsin court found it reasonable—after considering criminal conduct surveys, newspaper articles, and other judicial opinions—to assume that all felony drug crimes will involve "an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police." Notwithstanding its acknowledgment that in "some cases, police officers will undoubtedly decide that their safety, the safety of others, and the effective execution of the warrant dictate that they knock and announce," the court concluded that exigent circumstances justifying a no-knock entry are always present in felony drug Further, the court reasoned that the violation of privacy that occurs when officers who have a search warrant forcibly enter a residence without first announcing their presence is minimal, given that the residents would ultimately be without authority to refuse the police The principal intrusion on individual privacy interests in such a situation, the court concluded, comes from the issuance of the search warrant, not the manner in which it is executed. Accordingly, the court determined that police in Wisconsin do not need specific information about dangerousness, or the possible destruction of drugs in a particular case, in order to dispense with the knock-and-announce requirement in felony drug [1] *91 Justice Abrahamson concurred in the judgment because, in her view, the facts found by the trial judge justified a no-knock Specifically, she noted that Richards' actions in slamming the door when he saw the uniformed man standing behind Officer Pharo indicated that he already knew that the people knocking on his door were police officers. Under these circumstances, any further announcement of their presence would have been a useless gesture. n. While agreeing with the outcome, Justice Abrahamson took issue with her colleagues' affirmation of the blanket exception to the knock-and-announce requirement in drug felony She observed that the constitutional reasonableness of a search has generally been a matter left to the court, rather than to the officers who conducted the search, and she objected to the creation of a blanket rule that insulated searches in a particular category of crime from the neutral oversight of a reviewing judge. -20. II We recognized in Wilson that the knock-and-announce requirement could give way "under circumstances presenting a threat of physical violence," or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given." 514 U.S., It is indisputable that felony drug investigations may frequently involve both of these circumstances.[2] The question we must *92 resolve is whether this fact justifies dispensing with caseby-case evaluation of the manner in which a search was executed.[] The Wisconsin court explained its blanket exception as necessitated by the special circumstances of today's drug 201 Wis. 2d, -866, 549 N. W. 2d, at 226-227, and the State asserted at oral argument that the blanket exception was reasonable in "felony drug cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs." Tr. of Oral Arg. 26. But creating exceptions to the knock-and-announce rule based on the "" surrounding a general category of criminal behavior presents at least two serious concerns.[4] *9 First, the exception contains considerable over generalization. For example, while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock [5] Wisconsin's blanket rule impermissibly insulates these cases from judicial review. A second difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the *94 reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se exception were allowed for each category of criminal investigation that included a considerable—albeit hypothetical—risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless. Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard—as opposed to a probable-cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Cf. 494 U.S. 25, 7 ; 92 U.S. 1, 0 This showing is not high, but the police *95 should be required to make it whenever the reasonableness of a no-knock entry is challenged. III Although we reject the Wisconsin court's blanket exception to the knock-and-announce requirement, we conclude that the officers' no-knock entry into Richards' motel room did not violate the Fourth Amendment. We agree with the trial court, and with Justice Abrahamson, that the circumstances in this case show that the officers had a reasonable suspicion that Richards might destroy evidence if given further opportunity to do so.[6] The judge who heard testimony at Richards' suppression hearing concluded that it was reasonable for the officers executing the warrant to believe that Richards knew, after opening the door to his motel room the first time, that the men seeking entry to his room were the police. App. 54. Once the officers reasonably believed that Richards knew who they were, the court concluded, it was reasonable for them to force entry immediately given the disposable nature of the drugs. In arguing that the officers' entry was unreasonable, Richards places great emphasis on the fact that the Magistrate who signed the search warrant for his motel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no-knock But this fact does not alter the reasonableness of the officers' decision, which must be evaluated as of the time they entered the motel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the Magistrate, to justify a no-knock warrant. Of course, *96 the Magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards' motel room.[7] These actual circumstances—petitioner's apparent recognition of the officers combined with the easily disposable nature of the drugs— justified the officers' ultimate decision to enter without first announcing their presence and authority. Accordingly, although we reject the blanket exception to the knock-and-announce requirement for felony drug investigations, the judgment of the Wisconsin Supreme Court is affirmed. It is so ordered.

Justice Ginsburg

majority

United States v. Bryant

2016-06-13

https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/

https://www.courtlistener.com/api/rest/v3/clusters/3212620/

2015-066

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, en- acted 18 U.S. C. §117(a), which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s dura- tion. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled —————— 1 “Indian country” is defined in 18 U.S. C. §1151 to encompass all land within any Indian reservation under federal jurisdiction, all dependent Indian communities, and all Indian allotments, the Indian titles to which have not been extinguished. 2 UNITED STATES v. BRYANT Opinion of the Court in those proceedings. The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed coun- sel in any case in which a term of imprisonment is im- posed. Scott v. Illinois, 440 U.S. 367, 373–374 (1979). But the Sixth Amendment does not apply to tribal-court proceedings. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008). The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U.S. C. §1301 et seq., which governs criminal pro- ceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed. §1302(c)(2). Bryant’s tribal-court convictions, it is undisputed, were valid when entered. This case pre- sents the question whether those convictions, though uncounseled, rank as predicate offenses within the com- pass of §117(a). Our answer is yes. Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution. That proceeding generates no Sixth Amendment defect where none previously existed. I A “[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain). According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, M. Black et al., National Intimate Partner and Sexual Violence Survey 2010 Summary Report 40 (2011) (Table 4.3), online at http://www.cdc.gov/ ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet Cite as: 579 U. S. ____ (2016) 3 Opinion of the Court materials as last visited June 9, 2016). American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” Dept. of Justice, Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 38 (Nov. 2014), online at https:// www.justice.gov /sites /default/files/defendingchildhood/ pages/attachments/2015/03/23/ending_violence_so_children_ can_thrive.pdf. American Indian women experience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” VAWA Reauthorization Act, §901, 119 Stat. 3077. As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in severity over time.” United States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at 2). Nationwide, over 75% of female victims of intimate partner violence have been previously victimized by the same offender, Dept. of Jus- tice, Bureau of Justice Statistics, S. Catalano, Intimate Partner Violence 1993–2010, p. 4 (rev. 2015) (Figure 4), online at http://www.bjs.gov/content/pub/pdf/ipv9310.pdf, often multiple times, Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence, p. iv (2000), online at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf (“[W]omen who were physically assaulted by an intimate partner averaged 6.9 physical assaults by the same part- ner.”). Incidents of repeating, escalating abuse more than occasionally culminate in a fatal attack. See VAWA Reau- thorization Act, §901, 119 Stat. 3077–3078 (“[D]uring the period 1979 through 1992, homicide was the third leading 4 UNITED STATES v. BRYANT Opinion of the Court cause of death of Indian females aged 15 to 34, and 75 percent were killed by family members or acquaintances.”). The “complex patchwork of federal, state, and tribal law” governing Indian country, Duro v. Reina, 495 U.S. 676, 680, n. 1 (1990), has made it difficult to stem the tide of domestic violence experienced by Native American women. Although tribal courts may enforce the tribe’s criminal laws against Indian defendants, Congress has curbed tribal courts’ sentencing authority. At the time of §117(a)’s passage, ICRA limited sentences in tribal court to a maximum of one year’s imprisonment. 25 U.S. C. §1302(a)(7) (2006 ed.).2 Congress has since expanded tribal courts’ sentencing authority, allowing them to im- pose up to three years’ imprisonment, contingent on adop- tion of additional procedural safeguards. 124 Stat. 2279– 2280 (codified at 25 U.S. C. §1302(a)(7)(C), (c)).3 To date, however, few tribes have employed this enhanced sentencing authority. See Tribal Law and Policy Inst., Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/ download/VAWA/VAWAImplementationChart.pdf.4 —————— 2 Until 1986, ICRA permitted sentences of imprisonment up to only six months. See 100 Stat. 3207–146. 3 Among the additional safeguards attending longer sentences is the unqualified right of an indigent defendant to appointed counsel. 25 U.S. C. §1302(c)(1), (2). 4 Tribal governments generally lack criminal jurisdiction over non- Indians who commit crimes in Indian country. See Oliphant v. Suquamish Tribe, 435 U.S. 191, 195 (1978). In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to author- ize tribal courts to “exercise special domestic violence criminal jurisdic- tion” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 U.S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. Cite as: 579 U. S. ____ (2016) 5 Opinion of the Court States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims. See United States v. John, 437 U.S. 634, 651 (1978). In 1953, Con- gress increased the potential for state action by giving six States “jurisdiction over specified areas of Indian country within the States and provid[ing] for the [voluntary] as- sumption of jurisdiction by other States.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (footnote omitted). See Act of Aug. 15, 1953, Pub. L. 280, 67 Stat. 588 (codified, as amended, at 18 U.S. C. §1162 and 25 U.S. C. §§1321–1328, 1360). States so empowered may apply their own criminal laws to “offenses committed by or against Indians within all Indian country within the State.” Cabazon Band of Mission Indians, 480 U.S., at 207; see 18 U.S. C. §1162(a). Even when capable of exercising jurisdiction, however, States have not de- voted their limited criminal justice resources to crimes com- mitted in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007), online at http://www.tribal-institute.org/download/Final %20280%20FG%20Report.pdf. That leaves the Federal Government. Although federal law generally governs in Indian country, Congress has long excluded from federal-court jurisdiction crimes com- mitted by an Indian against another Indian. 18 U.S. C. §1152; see Ex parte Crow Dog, 109 U.S. 556, 572 (1883) (requiring “a clear expression of the intention of Congress” to confer federal jurisdiction over crimes committed by an Indian against another Indian). In the Major Crimes Act, Congress authorized federal jurisdiction over enumerated grave criminal offenses when both perpetrator and victim 6 UNITED STATES v. BRYANT Opinion of the Court are Indians, including murder, manslaughter, and felony assault. §1153. At the time of §117(a)’s enactment, felony assault subject to federal prosecution required “serious bodily injury,” §113(a)(6) (2006 ed.), meaning “a substan- tial risk of death,” “extreme physical pain,” “protracted and obvious disfigurement,” or “protracted loss or impair- ment of the function of a bodily member, organ, or mental faculty.” §1365(h)(3) (incorporated through §113(b)(2)).5 In short, when §117(a) was before Congress, Indian perpe- trators of domestic violence “escape[d] felony charges until they seriously injure[d] or kill[ed] someone.” 151 Cong. Rec. 9062 (2005) (remarks of Sen. McCain). As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian coun- try by a habitual offender. §117(a) (2012 ed.); see No. 12– 30177 (CA9, July 6, 2015), App. to Pet. for Cert. 41a (Ow- ens, J., dissenting from denial of rehearing en banc) (“Tai- lored to the unique problems . . . that American Indian and Alaska Native Tribes face, §117(a) provides felony- level punishment for serial domestic violence offenders, and it represents the first true effort to remove these recidivists from the communities that they repeatedly —————— 5 Congress has since expanded the definition of felony assault to in- clude “[a]ssault resulting in substantial bodily injury to a spouse[,] . . . intimate partner, [or] dating partner” and “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.” Violence Against Women Reau- thorization Act of 2013, §906, 127 Stat. 124 (codified at 18 U.S. C. §113(a)(7), (8)). The “substantial bodily injury” requirement remains difficult to satisfy, as it requires “a temporary but substantial disfig- urement” or “a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.” §113(b)(1). Cite as: 579 U. S. ____ (2016) 7 Opinion of the Court terrorize.”). The section provides in pertinent part: “Any person who commits a domestic assault within . . . Indian country and who has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction any assault, sex- ual abuse, or serious violent felony against a spouse or intimate partner . . . shall be fined . . . , imprisoned for a term of not more than 5 years, or both . . . .” §117(a)(1).6 Having two prior convictions for domestic violence crimes—including tribal-court convictions—is thus a predicate of the new offense. B This case requires us to determine whether §117(a)’s inclusion of tribal-court convictions is compatible with the Sixth Amendment’s right to counsel. The Sixth Amend- ment to the U. S. Constitution guarantees a criminal defendant in state or federal court “the Assistance of Counsel for his defence.” See Gideon v. Wainwright, 372 U.S. 335, 339 (1963). This right, we have held, requires appointment of counsel for indigent defendants whenever a sentence of imprisonment is imposed. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). But an indigent defend- ant has no constitutional right to appointed counsel if his conviction results in a fine or other noncustodial punish- ment. Scott, 440 U.S., at 373–374. “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by —————— 6 Section 117(a) has since been amended to include as qualifying pred- icate offenses, in addition to intimate-partner crimes, “assault, sexual abuse, [and] serious violent felony” offenses committed “against a child of or in the care of the person committing the domestic assault.” 18 U.S. C. §117(a) (Supp. II 2014). 8 UNITED STATES v. BRYANT Opinion of the Court those constitutional provisions framed specifically as limitations on federal or state authority.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). The Bill of Rights, including the Sixth Amendment right to counsel, therefore, does not apply in tribal-court proceedings. See Plains Commerce Bank, 554 U.S., at 337. In ICRA, however, Congress accorded a range of proce- dural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment.” Martinez, 436 U.S., at 57; see id., at 62–63 (ICRA “modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments”). In addition to other enumerated protections, ICRA guarantees “due process of law,” 25 U.S. C. §1302(a)(8), and allows tribal- court defendants to seek habeas corpus review in federal court to test the legality of their imprisonment, §1303. The right to counsel under ICRA is not coextensive with the Sixth Amendment right. If a tribal court imposes a sentence in excess of one year, ICRA requires the court to accord the defendant “the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution,” including appointment of counsel for an indigent defendant at the tribe’s expense. §1302(c)(1), (2). If the sentence imposed is no greater than one year, however, the tribal court must allow a defendant only the opportunity to obtain counsel “at his own expense.” §1302(a)(6). In tribal court, therefore, unlike in federal or state court, a sentence of imprisonment up to one year may be imposed without according indigent defendants the right to appointed counsel. The question here presented: Is it permissible to use uncounseled tribal-court convictions—obtained in full compliance with ICRA—to establish the prior-crimes predicate of §117(a)? It is undisputed that a conviction obtained in violation of a defendant’s Sixth Amendment Cite as: 579 U. S. ____ (2016) 9 Opinion of the Court right to counsel cannot be used in a subsequent proceeding “either to support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U.S. 109, 115 (1967). In Burgett, we held that an uncounseled felony conviction obtained in state court in violation of the right to counsel could not be used in a subsequent proceeding to prove the prior-felony element of a recidivist statute. To permit such use of a constitutionally infirm conviction, we ex- plained, would cause “the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amend- ment right.” Ibid.; see United States v. Tucker, 404 U.S. 443, 448 (1972) (invalid, uncounseled prior convictions could not be relied upon at sentencing to impose a longer term of imprisonment for a subsequent conviction); cf. Loper v. Beto, 405 U.S. 473, 483–484 (1972) (plurality opinion) (“use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law” because the prior convictions “lac[k] reliability”). In Nichols v. United States, 511 U.S. 738 (1994), we stated an important limitation on the principle recognized in Burgett. In the case under review, Nichols pleaded guilty to a federal felony drug offense. 511 U.S., at 740. Several years earlier, unrepresented by counsel, he had been convicted of driving under the influence (DUI), a state-law misdemeanor, and fined $250 but not impris- oned. Ibid. Nichols’ DUI conviction, under the then- mandatory Sentencing Guidelines, effectively elevated by about two years the sentencing range for Nichols’ federal drug offense. Ibid. We rejected Nichols’ contention that, as his later sentence for the federal drug offense involved imprisonment, use of his uncounseled DUI conviction to elevate that sentence violated the Sixth Amendment. Id., at 746–747. “[C]onsistent with the Sixth and Fourteenth Amendments of the Constitution,” we held, “an uncoun- seled misdemeanor conviction, valid under Scott because 10 UNITED STATES v. BRYANT Opinion of the Court no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” Id., at 748–749. C Respondent Bryant’s conduct is illustrative of the do- mestic violence problem existing in Indian country. Dur- ing the period relevant to this case, Bryant, an enrolled member of the Northern Cheyenne Tribe, lived on that Tribe’s reservation in Montana. He has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to commit- ting domestic abuse in violation of the Northern Cheyenne Tribal Code. On one occasion, Bryant hit his live-in girl- friend on the head with a beer bottle and attempted to strangle her. On another, Bryant beat a different girl- friend, kneeing her in the face, breaking her nose, and leaving her bruised and bloodied. For most of Bryant’s repeated brutal acts of domestic violence, the Tribal Court sentenced him to terms of im- prisonment, never exceeding one year. When convicted of these offenses, Bryant was indigent and was not appointed counsel. Because of his short prison terms, Bryant acknowledges, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Bryant has never challenged his tribal-court convictions in federal court under ICRA’s habeas corpus provision. In 2011, Bryant was arrested yet again for assaulting women. In February of that year, Bryant attacked his then girlfriend, dragging her off the bed, pulling her hair, and repeatedly punching and kicking her. During an interview with law enforcement officers, Bryant admitted that he had physically assaulted this woman five or six Cite as: 579 U. S. ____ (2016) 11 Opinion of the Court times. Three months later, he assaulted another woman with whom he was then living, waking her by yelling that he could not find his truck keys and then choking her until she almost lost consciousness. Bryant later stated that he had assaulted this victim on three separate occasions during the two months they dated. Based on the 2011 assaults, a federal grand jury in Montana indicted Bryant on two counts of domestic as- sault by a habitual offender, in violation of §117(a). Bry- ant was represented in federal court by appointed counsel. Contending that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convic- tions to satisfy §117(a)’s predicate-offense element, Bryant moved to dismiss the indictment. The District Court denied the motion, App. to Pet. for Cert. 32a, and Bryant entered a conditional guilty plea, reserving the right to appeal that decision. Bryant was sentenced to concurrent terms of 46 months’ imprisonment on each count, to be followed by three years of supervised release. The Court of Appeals for the Ninth Circuit reversed the conviction and directed dismissal of the indictment. 769 F.3d 671 (2014). Bryant’s tribal-court convictions were not themselves constitutionally infirm, the Ninth Circuit comprehended, because “the Sixth Amendment right to appointed counsel does not apply in tribal court proceed- ings.” Id., at 675. But, the court continued, had the con- victions been obtained in state or federal court, they would have violated the Sixth Amendment because Bryant had received sentences of imprisonment although he lacked the aid of appointed counsel. Adhering to its prior deci- sion in United States v. Ant, 882 F.2d 1389 (CA9 1989),7 —————— 7 In United States v. Ant, 882 F.2d 1389 (1989), the Ninth Circuit proscribed the use of an uncounseled tribal-court guilty plea as evi- dence of guilt in a subsequent federal prosecution arising out of the same incident. Use of the plea was impermissible, the Court of Appeals reasoned, “because the tribal court guilty plea was made under circum- 12 UNITED STATES v. BRYANT Opinion of the Court the Court of Appeals held that, subject to narrow excep- tions not relevant here, “tribal court convictions may be used in subsequent [federal] prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right.” 769 F.3d, at 677. Rejecting the Government’s argument that our decision in Nichols required the opposite result, the Ninth Circuit concluded that Nichols applies only when the prior conviction did comport with the Sixth Amendment, i.e., when no sentence of imprisonment was imposed for the prior conviction. 769 F.3d, at 677–678. Judge Watford concurred, agreeing that Ant controlled the outcome of this case, but urging reexamination of Ant in light of Nichols. 769 F.3d, at 679. This Court’s deci- sion in Nichols, Judge Watford wrote, “undermines the notion that uncounseled convictions are, as a categorical matter, too unreliable to be used as a basis for imposing a prison sentence in a subsequent case.” 769 F.3d, at 679. The Court of Appeals declined to rehear the case en banc over vigorous dissents by Judges Owens and O’Scannlain. In disallowing the use of an uncounseled tribal-court conviction to establish a prior domestic violence conviction within §117(a)’s compass, the Ninth Circuit created a Circuit split. The Eighth and Tenth Circuits have both held that tribal-court “convictions, valid at their inception, and not alleged to be otherwise unreliable, may be used to prove the elements of §117.” United States v. Cavanaugh, 643 F.3d 592, 594 (CA8 2011); see United States v. Sha- vanaux, 647 F.3d 993, 1000 (CA10 2011). To resolve this disagreement, we granted certiorari, 577 U. S. ___ (2016), and now reverse. —————— stances which would have violated the United States Constitution were it applicable to tribal proceedings.” Id., at 1390. Cite as: 579 U. S. ____ (2016) 13 Opinion of the Court II Bryant’s tribal-court convictions, he recognizes, in- fringed no constitutional right because the Sixth Amend- ment does not apply to tribal-court proceedings. Brief for Respondent 5. Those prior convictions complied with ICRA, he concedes, and therefore were valid when en- tered. But, had his convictions occurred in state or federal court, Bryant observes, Argersinger and Scott would have rendered them invalid because he was sentenced to incar- ceration without representation by court-appointed coun- sel. Essentially, Bryant urges us to treat tribal-court convictions, for §117(a) purposes, as though they had been entered by a federal or state court. We next explain why we decline to do so. As earlier recounted, we held in Nichols that “an un- counseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” 511 U.S., at 748–749. “Enhancement statutes,” we rea- soned, “do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” Id., at 747; see United States v. Rodriquez, 553 U.S. 377, 386 (2008) (“When a defendant is given a higher sentence under a recidivism statute . . . 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant’s ‘status as a recidivist.’ ”). Nichols thus instructs that convictions valid when entered—that is, those that, when rendered, did not violate the Constitu- tion—retain that status when invoked in a subsequent proceeding. Nichols’ reasoning steers the result here. Bryant’s 46- month sentence for violating §117(a) punishes his most recent acts of domestic assault, not his prior crimes prose- cuted in tribal court. Bryant was denied no right to coun- sel in tribal court, and his Sixth Amendment right was 14 UNITED STATES v. BRYANT Opinion of the Court honored in federal court, when he was “adjudicated guilty of the felony offense for which he was imprisoned.” Ala- bama v. Shelton, 535 U.S. 654, 664 (2002). It would be “odd to say that a conviction untainted by a violation of the Sixth Amendment triggers a violation of that same amendment when it’s used in a subsequent case where the defendant’s right to appointed counsel is fully respected.” 769 F.3d, at 679 (Watford, J., concurring).8 Bryant acknowledges that had he been punished only by fines in his tribal-court proceedings, Nichols would have allowed reliance on his uncounseled convictions to satisfy §117(a)’s prior-crimes predicate. Brief for Respondent 50. We see no cause to distinguish for §117(a) purposes be- tween valid but uncounseled convictions resulting in a fine and valid but uncounseled convictions resulting in impris- onment not exceeding one year. “Both Nichols’s and Bry- ant’s uncounseled convictions ‘comport’ with the Sixth Amendment, and for the same reason: the Sixth Amend- ment right to appointed counsel did not apply to either conviction.” App. to Pet. for Cert. 50a (O’Scannlain, J., dissenting from denial of rehearing en banc). In keeping with Nichols, we resist creating a “hybrid” category of tribal-court convictions, “good for the punish- ment actually imposed but not available for sentence —————— 8 True, as Bryant points out, we based our decision in Nichols v. United States, 511 U.S. 738, 747 (1994), in part on the “less exact- ing” nature of sentencing, compared with the heightened burden of proof required for determining guilt. But, in describing the rule we adopted, we said that it encompasses both “criminal history provisions,” applica- ble at sentencing, and “recidivist statutes,” of which §117(a) is one. Ibid. Moreover, Nichols’ two primary rationales—the validity of the prior conviction and the sentence’s punishment of “only the last of- fense”—do not rely on a distinction between guilt adjudication and sentencing. Indeed, it is the validity of the prior conviction that distin- guishes Nichols from United States v. Tucker, 404 U.S. 443, 448 (1972), in which we found impermissible the use at sentencing of an invalid, uncounseled prior conviction. Cite as: 579 U. S. ____ (2016) 15 Opinion of the Court enhancement in a later prosecution.” 511 U.S., at 744. Nichols indicates that use of Bryant’s uncounseled tribal- court convictions in his §117(a) prosecution did not “trans- form his prior, valid, tribal court convictions into new, invalid, federal ones.” App. to Pet. for Cert. 50a (opinion of O’Scannlain, J.). Our decision in Burgett, which prohibited the subse- quent use of a conviction obtained in violation of the right to counsel, does not aid Bryant. Reliance on an invalid conviction, Burgett reasoned, would cause the accused to “suffe[r] anew from the deprivation of [his] Sixth Amend- ment right.” 389 U.S., at 115. Because a defendant convicted in tribal court suffers no Sixth Amendment violation in the first instance, “[u]se of tribal convictions in a subsequent prosecution cannot violate [the Sixth Amendment] ‘anew.’ ” Shavanaux, 647 F.3d, at 998. Bryant observes that reliability concerns underlie our right-to-counsel decisions and urges that those concerns remain even if the Sixth Amendment itself does not shel- ter him. Scott and Nichols, however, counter the argu- ment that uncounseled misdemeanor convictions are categorically unreliable, either in their own right or for use in a subsequent proceeding. Bryant’s recognition that a tribal-court conviction resulting in a fine would qualify as a §117(a) predicate offense, we further note, diminishes the force of his reliability-based argument. There is no reason to suppose that tribal-court proceedings are less reliable when a sentence of a year’s imprisonment is im- posed than when the punishment is merely a fine. No evidentiary or procedural variation turns on the sanc- tion—fine only or a year in prison—ultimately imposed. Bryant also invokes the Due Process Clause of the Fifth Amendment in support of his assertion that tribal-court judgments should not be used as predicate offenses. But, as earlier observed, ICRA itself requires tribes to ensure “due process of law,” §1302(a)(8), and it accords defend- 16 UNITED STATES v. BRYANT Opinion of the Court ants specific procedural safeguards resembling those contained in the Bill of Rights and the Fourteenth Amendment. See supra, at 8. Further, ICRA makes habeas review in federal court available to persons incar- cerated pursuant to a tribal-court judgment. §1303. By that means, a prisoner may challenge the fundamental fairness of the proceedings in tribal court. Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. Therefore, the use of those convictions in a federal prosecution does not violate a defendant’s right to due process. See Shavanaux, 647 F.3d, at 1000; cf. State v. Spotted Eagle, 316 Mont. 370, 378–379, 71 P.3d 1239, 1245–1246 (2003) (principles of comity support recognizing uncounseled tribal-court convictions that complied with ICRA). * * * Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. We accordingly reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 579 U. S. ____ (2016) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 15–420 _________________ UNITED STATES, PETITIONER v. MICHAEL BRYANT, JR.

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, en- acted 18 U.S. C. which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, 909, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s dura- tion. His tribal-court convictions do not count for purposes, Bryant maintains, because he was uncounseled —————— 1 “Indian country” is defined in 18 U.S. C. to encompass all land within any Indian reservation under federal jurisdiction, all dependent Indian communities, and all Indian allotments, the Indian titles to which have not been extinguished. 2 UNITED STATES v. BRYANT Opinion of the Court in those proceedings. The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed coun- sel in any case in which a term of imprisonment is im- posed. But the Sixth Amendment does not apply to tribal-court proceedings. See Plains Commerce The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U.S. C. et seq., which governs criminal pro- ceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed. Bryant’s tribal-court convictions, it is undisputed, were valid when entered. This case pre- sents the question whether those convictions, though uncounseled, rank as predicate offenses within the com- pass of Our answer is yes. Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a prosecution. That proceeding generates no Sixth Amendment defect where none previously existed. I A “[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain). According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, M. Black et al., National Intimate Partner and Sexual Violence Survey 2010 Summary Report 40 (Table 4.3), online at http://www.cdc.gov/ ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet Cite as: 579 U. S. (2016) 3 Opinion of the Court materials as last visited June 9, 2016). American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” Dept. of Justice, Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 38 (Nov. 2014), online at https:// www.justice.gov /sites /default/files/defendingchildhood/ pages/attachments/2015/03/23/ending_violence_so_children_ can_thrive.pdf. American Indian women experience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” VAWA Reauthorization Act, As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in severity over time.” United States v. Castleman, U. S. (2014) (slip op., at 2). Nationwide, over 75% of female victims of intimate partner violence have been previously victimized by the same offender, Dept. of Jus- tice, Bureau of Justice Statistics, S. Catalano, Intimate Partner Violence 1993–2010, p. 4 (rev. 2015) (Figure 4), online at http://www.bjs.gov/content/pub/pdf/ipv9310.pdf, often multiple times, Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence, p. iv (2000), online at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf (“[W]omen who were physically assaulted by an intimate partner averaged 6.9 physical assaults by the same part- ner.”). Incidents of repeating, escalating abuse more than occasionally culminate in a fatal attack. See VAWA Reau- thorization Act, –3078 (“[D]uring the period 1979 through 1992, homicide was the third leading 4 UNITED STATES v. BRYANT Opinion of the Court cause of death of Indian females aged 15 to 34, and 75 percent were killed by family members or acquaintances.”). The “complex patchwork of federal, state, and tribal law” governing Indian country, Duro v. Reina, 495 U.S. 676, 680, n. 1 (1990), has made it difficult to stem the tide of domestic violence experienced by Native American women. Although tribal courts may enforce the tribe’s criminal laws against Indian defendants, Congress has curbed tribal courts’ sentencing authority. At the time of ’s passage, ICRA limited sentences in tribal court to a maximum of one year’s imprisonment. 25 U.S. C. (2006 ed.).2 Congress has since expanded tribal courts’ sentencing authority, allowing them to im- pose up to three years’ imprisonment, contingent on adop- tion of additional procedural safeguards. – 2280 (codified at 25 U.S. C. (C), (c)).3 To date, however, few tribes have employed this enhanced sentencing authority. See Tribal Law and Policy Inst., Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/ download/VAWA/VAWAImplementationChart.pdf.4 —————— 2 Until 1986, ICRA permitted sentences of imprisonment up to only six months. See –146. 3 Among the additional safeguards attending longer sentences is the unqualified right of an indigent defendant to appointed counsel. 25 U.S. C. (2). 4 Tribal governments generally lack criminal jurisdiction over non- Indians who commit crimes in Indian country. See Oliphant v. Suquamish Tribe, In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to author- ize tribal courts to “exercise special domestic violence criminal jurisdic- tion” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, –122 (codified at 25 U.S. C. Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See We express no view on the validity of those provisions. Cite as: 579 U. S. (2016) 5 Opinion of the Court States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims. See United In 3, Con- gress increased the potential for state action by giving six States “jurisdiction over specified areas of Indian country within the States and provid[ing] for the [voluntary] as- sumption of jurisdiction by other States.” California v. Cabazon Band of Mission Indians, (1987) (footnote omitted). See Act of Aug. 15, 3, Pub. L. 280, (codified, as amended, at 18 U.S. C. and 25 U.S. C. 1360). States so empowered may apply their own criminal laws to “offenses committed by or against Indians within all Indian country within the State.” Cabazon Band of Mission Indians, 480 U.S., at ; see 18 U.S. C. (a). Even when capable of exercising jurisdiction, however, States have not de- voted their limited criminal justice resources to crimes com- mitted in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–16 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007), online at http://www.tribal-institute.org/download/Final %20280%20FG%20Report.pdf. That leaves the Federal Government. Although federal law generally governs in Indian country, Congress has long excluded from federal-court jurisdiction crimes com- mitted by an Indian against another Indian. 18 U.S. C. see Ex parte Crow Dog, (requiring “a clear expression of the intention of Congress” to confer federal jurisdiction over crimes committed by an Indian against another Indian). In the Major Crimes Act, Congress authorized federal jurisdiction over enumerated grave criminal offenses when both perpetrator and victim 6 UNITED STATES v. BRYANT Opinion of the Court are Indians, including murder, manslaughter, and felony assault. At the time of ’s enactment, felony assault subject to federal prosecution required “serious bodily injury,” (2006 ed.), meaning “a substan- tial risk of death,” “extreme physical pain,” “protracted and obvious disfigurement,” or “protracted loss or impair- ment of the function of a bodily member, organ, or mental faculty.” (incorporated through In short, when was before Congress, Indian perpe- trators of domestic violence “escape[d] felony charges until they seriously injure[d] or kill[ed] someone.” 151 Cong. Rec. 9062 (2005) (remarks of Sen. McCain). As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian coun- try by a habitual offender. (2012 ed.); see No. 12– 30177 (CA9, July 6, 2015), App. to Pet. for Cert. 41a (Ow- ens, J., dissenting from denial of rehearing en banc) (“Tai- lored to the unique problems that American Indian and Alaska Native Tribes face, provides felony- level punishment for serial domestic violence offenders, and it represents the first true effort to remove these recidivists from the communities that they repeatedly —————— 5 Congress has since expanded the definition of felony assault to in- clude “[a]ssault resulting in substantial bodily injury to a spouse[,] intimate partner, [or] dating partner” and “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.” Violence Against Women Reau- thorization Act of 2013, (codified at 18 U.S. C. (8)). The “substantial bodily injury” requirement remains difficult to satisfy, as it requires “a temporary but substantial disfig- urement” or “a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.” Cite as: 579 U. S. (2016) 7 Opinion of the Court terrorize.”). The section provides in pertinent part: “Any person who commits a domestic assault within Indian country and who has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction any assault, sex- ual abuse, or serious violent felony against a spouse or intimate partner shall be fined imprisoned for a term of not more than 5 years, or both” (1).6 Having two prior convictions for domestic violence crimes—including tribal-court convictions—is thus a predicate of the new B This case requires us to determine whether ’s inclusion of tribal-court convictions is compatible with the Sixth Amendment’s right to counsel. The Sixth Amend- ment to the U. S. Constitution guarantees a criminal defendant in state or federal court “the Assistance of Counsel for his defence.” See Gideon v. Wainwright, 2 U.S. 335, 339 (1963). This right, we have held, requires appointment of counsel for indigent defendants whenever a sentence of imprisonment is imposed. Argersinger v. Hamlin, But an indigent defend- ant has no constitutional right to appointed counsel if his conviction results in a fine or other noncustodial punish- ment. 440 U.S., at “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by —————— 6 Section 117(a) has since been amended to include as qualifying pred- icate offenses, in addition to intimate-partner crimes, “assault, sexual abuse, [and] serious violent felony” offenses committed “against a child of or in the care of the person committing the domestic assault.” 18 U.S. C. (Supp. II 2014). 8 UNITED STATES v. BRYANT Opinion of the Court those constitutional provisions framed specifically as limitations on federal or state authority.” Santa Clara The Bill of Rights, including the Sixth Amendment right to counsel, therefore, does not apply in tribal-court proceedings. See Plains Commerce 554 U.S., at In ICRA, however, Congress accorded a range of proce- dural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment.” ; see at 62–63 (ICRA “modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments”). In addition to other enumerated protections, ICRA guarantees “due process of law,” 25 U.S. C. and allows tribal- court defendants to seek habeas corpus review in federal court to test the legality of their imprisonment, The right to counsel under ICRA is not coextensive with the Sixth Amendment right. If a tribal court imposes a sentence in excess of one year, ICRA requires the court to accord the defendant “the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution,” including appointment of counsel for an indigent defendant at the tribe’s expense. (2). If the sentence imposed is no greater than one year, however, the tribal court must allow a defendant only the opportunity to obtain counsel “at his own expense.” In tribal court, therefore, unlike in federal or state court, a sentence of imprisonment up to one year may be imposed without according indigent defendants the right to appointed counsel. The question here presented: Is it permissible to use uncounseled tribal-court convictions—obtained in full compliance with ICRA—to establish the prior-crimes predicate of ? It is undisputed that a conviction obtained in violation of a defendant’s Sixth Amendment Cite as: 579 U. S. (2016) 9 Opinion of the Court right to counsel cannot be used in a subsequent proceeding “either to support guilt or enhance punishment for another ” In Burgett, we held that an uncounseled felony conviction obtained in state court in violation of the right to counsel could not be used in a subsequent proceeding to prove the prior-felony element of a recidivist statute. To permit such use of a constitutionally infirm conviction, we ex- plained, would cause “the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amend- ment right.” ; see United 404 U.S. 443, (invalid, uncounseled prior convictions could not be relied upon at sentencing to impose a longer term of imprisonment for a subsequent conviction); cf. (plurality opinion) (“use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law” because the prior convictions “lac[k] reliability”). In we stated an important limitation on the principle recognized in Burgett. In the case under review, Nichols pleaded guilty to a federal felony drug Several years earlier, unrepresented by counsel, he had been convicted of driving under the influence (DUI), a state-law misdemeanor, and fined $250 but not impris- oned. Nichols’ DUI conviction, under the then- mandatory Sentencing Guidelines, effectively elevated by about two years the sentencing range for Nichols’ federal drug We rejected Nichols’ contention that, as his later sentence for the federal drug offense involved imprisonment, use of his uncounseled DUI conviction to elevate that sentence violated the Sixth Amendment. at 746–. “[C]onsistent with the Sixth and Fourteenth Amendments of the Constitution,” we held, “an uncoun- seled misdemeanor conviction, valid under because 10 UNITED STATES v. BRYANT Opinion of the Court no prison term was imposed, is also valid when used to enhance punishment at a subsequent ” at 748–749. C Respondent Bryant’s conduct is illustrative of the do- mestic violence problem existing in Indian country. Dur- ing the period relevant to this case, Bryant, an enrolled member of the Northern Cheyenne Tribe, lived on that Tribe’s reservation in Montana. He has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to commit- ting domestic abuse in violation of the Northern Cheyenne Tribal Code. On one occasion, Bryant hit his live-in girl- friend on the head with a beer bottle and attempted to strangle her. On another, Bryant beat a different girl- friend, kneeing her in the face, breaking her nose, and leaving her bruised and bloodied. For most of Bryant’s repeated brutal acts of domestic violence, the Tribal Court sentenced him to terms of im- prisonment, never exceeding one year. When convicted of these offenses, Bryant was indigent and was not appointed counsel. Because of his short prison terms, Bryant acknowledges, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Bryant has never challenged his tribal-court convictions in federal court under ICRA’s habeas corpus provision. In Bryant was arrested yet again for assaulting women. In February of that year, Bryant attacked his then girlfriend, dragging her off the bed, pulling her hair, and repeatedly punching and kicking her. During an interview with law enforcement officers, Bryant admitted that he had physically assaulted this woman five or six Cite as: 579 U. S. (2016) 11 Opinion of the Court times. Three months later, he assaulted another woman with whom he was then living, waking her by yelling that he could not find his truck keys and then choking her until she almost lost consciousness. Bryant later stated that he had assaulted this victim on three separate occasions during the two months they dated. Based on the assaults, a federal grand jury in Montana indicted Bryant on two counts of domestic as- sault by a habitual offender, in violation of Bry- ant was represented in federal court by appointed counsel. Contending that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convic- tions to satisfy ’s predicate-offense element, Bryant moved to dismiss the indictment. The District Court denied the motion, App. to Pet. for Cert. 32a, and Bryant entered a conditional guilty plea, reserving the right to appeal that decision. Bryant was sentenced to concurrent terms of 46 months’ imprisonment on each count, to be followed by three years of supervised release. The Court of Appeals for the Ninth Circuit reversed the conviction and directed dismissal of the indictment. 769 F.3d 671 (2014). Bryant’s tribal-court convictions were not themselves constitutionally infirm, the Ninth Circuit comprehended, because “the Sixth Amendment right to appointed counsel does not apply in tribal court proceed- ings.” But, the court continued, had the con- victions been obtained in state or federal court, they would have violated the Sixth Amendment because Bryant had received sentences of imprisonment although he lacked the aid of appointed counsel. Adhering to its prior deci- sion in United7 —————— 7 In United the Ninth Circuit proscribed the use of an uncounseled tribal-court guilty plea as evi- dence of guilt in a subsequent federal prosecution arising out of the same incident. Use of the plea was impermissible, the Court of Appeals reasoned, “because the tribal court guilty plea was made under circum- 12 UNITED STATES v. BRYANT Opinion of the Court the Court of Appeals held that, subject to narrow excep- tions not relevant here, “tribal court convictions may be used in subsequent [federal] prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right.” 769 F.3d, at 677. Rejecting the Government’s argument that our decision in Nichols required the opposite result, the Ninth Circuit concluded that Nichols applies only when the prior conviction did comport with the Sixth Amendment, i.e., when no sentence of imprisonment was imposed for the prior –678. Judge Watford concurred, agreeing that Ant controlled the outcome of this case, but urging reexamination of Ant in light of This Court’s deci- sion in Nichols, Judge Watford wrote, “undermines the notion that uncounseled convictions are, as a categorical matter, too unreliable to be used as a basis for imposing a prison sentence in a subsequent case.” The Court of Appeals declined to rehear the case en banc over vigorous dissents by Judges Owens and O’Scannlain. In disallowing the use of an uncounseled tribal-court conviction to establish a prior domestic violence conviction within ’s compass, the Ninth Circuit created a Circuit split. The Eighth and Tenth Circuits have both held that tribal-court “convictions, valid at their inception, and not alleged to be otherwise unreliable, may be used to prove the elements of United ; see United To resolve this disagreement, we granted certiorari, 577 U. S. (2016), and now reverse. —————— stances which would have violated the United States Constitution were it applicable to tribal proceedings.” Cite as: 579 U. S. (2016) 13 Opinion of the Court II Bryant’s tribal-court convictions, he recognizes, in- fringed no constitutional right because the Sixth Amend- ment does not apply to tribal-court proceedings. Brief for Respondent 5. Those prior convictions complied with ICRA, he concedes, and therefore were valid when en- tered. But, had his convictions occurred in state or federal court, Bryant observes, Argersinger and would have rendered them invalid because he was sentenced to incar- ceration without representation by court-appointed coun- sel. Essentially, Bryant urges us to treat tribal-court convictions, for purposes, as though they had been entered by a federal or state court. We next explain why we decline to do so. As earlier recounted, we held in Nichols that “an un- counseled misdemeanor conviction, valid under because no prison term was imposed, is also valid when used to enhance punishment at a subsequent ” –749. “Enhancement statutes,” we rea- soned, “do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” ; see United 553 U.S. 7, (“When a defendant is given a higher sentence under a recidivism statute 100% of the punishment is for the offense of None is for the prior convictions or the defendant’s ‘status as a recidivist.’ ”). Nichols thus instructs that convictions valid when entered—that is, those that, when rendered, did not violate the Constitu- tion—retain that status when invoked in a subsequent proceeding. Nichols’ reasoning steers the result here. Bryant’s 46- month sentence for violating punishes his most recent acts of domestic assault, not his prior crimes prose- cuted in tribal court. Bryant was denied no right to coun- sel in tribal court, and his Sixth Amendment right was 14 UNITED STATES v. BRYANT Opinion of the Court honored in federal court, when he was “adjudicated guilty of the felony offense for which he was imprisoned.” Ala- It would be “odd to say that a conviction untainted by a violation of the Sixth Amendment triggers a violation of that same amendment when it’s used in a subsequent case where the defendant’s right to appointed counsel is fully respected.”8 Bryant acknowledges that had he been punished only by fines in his tribal-court proceedings, Nichols would have allowed reliance on his uncounseled convictions to satisfy ’s prior-crimes predicate. Brief for Respondent 50. We see no cause to distinguish for purposes be- tween valid but uncounseled convictions resulting in a fine and valid but uncounseled convictions resulting in impris- onment not exceeding one year. “Both Nichols’s and Bry- ant’s uncounseled convictions ‘comport’ with the Sixth Amendment, and for the same reason: the Sixth Amend- ment right to appointed counsel did not apply to either ” App. to Pet. for Cert. 50a (O’Scannlain, J., dissenting from denial of rehearing en banc). In keeping with Nichols, we resist creating a “hybrid” category of tribal-court convictions, “good for the punish- ment actually imposed but not available for sentence —————— 8 True, as Bryant points out, we based our decision in Nichols v. United States, in part on the “less exact- ing” nature of sentencing, compared with the heightened burden of proof required for determining guilt. But, in describing the rule we adopted, we said that it encompasses both “criminal history provisions,” applica- ble at sentencing, and “recidivist statutes,” of which is one. Moreover, Nichols’ two primary rationales—the validity of the prior conviction and the sentence’s punishment of “only the last of- fense”—do not rely on a distinction between guilt adjudication and sentencing. Indeed, it is the validity of the prior conviction that distin- guishes Nichols from United in which we found impermissible the use at sentencing of an invalid, uncounseled prior Cite as: 579 U. S. (2016) 15 Opinion of the Court enhancement in a later prosecution.” Nichols indicates that use of Bryant’s uncounseled tribal- court convictions in his prosecution did not “trans- form his prior, valid, tribal court convictions into new, invalid, federal ones.” App. to Pet. for Cert. 50a (opinion of O’Scannlain, J.). Our decision in Burgett, which prohibited the subse- quent use of a conviction obtained in violation of the right to counsel, does not aid Bryant. Reliance on an invalid conviction, Burgett reasoned, would cause the accused to “suffe[r] anew from the deprivation of [his] Sixth Amend- ment right.” 389 U.S., at Because a defendant convicted in tribal court suffers no Sixth Amendment violation in the first instance, “[u]se of tribal convictions in a subsequent prosecution cannot violate [the Sixth Amendment] ‘anew.’ ” Bryant observes that reliability concerns underlie our right-to-counsel decisions and urges that those concerns remain even if the Sixth Amendment itself does not shel- ter him. and Nichols, however, counter the argu- ment that uncounseled misdemeanor convictions are categorically unreliable, either in their own right or for use in a subsequent proceeding. Bryant’s recognition that a tribal-court conviction resulting in a fine would qualify as a predicate offense, we further note, diminishes the force of his reliability-based argument. There is no reason to suppose that tribal-court proceedings are less reliable when a sentence of a year’s imprisonment is im- posed than when the punishment is merely a fine. No evidentiary or procedural variation turns on the sanc- tion—fine only or a year in prison—ultimately imposed. Bryant also invokes the Due Process Clause of the Fifth Amendment in support of his assertion that tribal-court judgments should not be used as predicate offenses. But, as earlier observed, ICRA itself requires tribes to ensure “due process of law,” and it accords defend- 16 UNITED STATES v. BRYANT Opinion of the Court ants specific procedural safeguards resembling those contained in the Bill of Rights and the Fourteenth Amendment. See Further, ICRA makes habeas review in federal court available to persons incar- cerated pursuant to a tribal-court judgment. By that means, a prisoner may challenge the fundamental fairness of the proceedings in tribal court. Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. Therefore, the use of those convictions in a federal prosecution does not violate a defendant’s right to due process. See 647 F.3d, at ; cf. State v. Spotted Eagle, 316 Mont. 0, 8–9, 1245–1246 (2003) (principles of comity support recognizing uncounseled tribal-court convictions that complied with ICRA). * * * Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a prosecution does not violate the Constitution. We accordingly reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 579 U. S. (2016) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 15–420 UNITED STATES, PETITIONER v. MICHAEL BRYANT, JR.

Justice Thomas

concurring

United States v. Bryant

2016-06-13

https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/

https://www.courtlistener.com/api/rest/v3/clusters/3212620/

2015-066

The Court holds that neither the Sixth Amendment nor the Fifth Amendment’s Due Process Clause prohibits the Government from using Michael Bryant’s uncounseled tribal-court convictions as predicates for the federal crime of committing a domestic assault within Indian country. Ante, at 15–16; see 18 U.S. C. §117(a) (making it a federal crime to “commi[t] a domestic assault within . . . Indian country” if the person “has a final conviction on at least 2 separate prior occasions in . . . Indian tribal court proceed- ings” for domestic assault and similar crimes). Because our precedents dictate that holding, I join the Court’s opinion. The fact that this case arose at all, however, illustrates how far afield our Sixth Amendment and Indian-law precedents have gone. Three basic assumptions underlie this case: that the Sixth Amendment ordinarily bars the Government from introducing, in a later proceeding, con- victions obtained in violation of the right to counsel, ante, at 8–9; that tribes’ retained sovereignty entitles them to prosecute tribal members in proceedings that are not subject to the Constitution, ante, at 7–8; and that Con- gress can punish assaults that tribal members commit against each other on Indian land, ante, at 5–7. Although our precedents have endorsed these assumptions for dec- 2 UNITED STATES v. BRYANT THOMAS, J., concurring ades, the Court has never identified a sound constitutional basis for any of them, and I see none. Start with the notion that the Sixth Amendment gener- ally prohibits the government from using a prior, uncoun- seled conviction obtained in violation of the right to coun- sel as a predicate for a new offense in a new proceeding. Ante, at 8–9. All that the text of the Sixth Amendment requires in a criminal prosecution is that the accused enjoy the “[a]ssistance of [c]ounsel” in that proceeding. The Court was likely wrong in Burgett v. Texas, 389 U.S. 109 (1967), when it created a Sixth Amendment “exclu- sionary rule” that prohibits the government from using prior convictions obtained in violation of the right to coun- sel in subsequent proceedings to avoid “erod[ing] the principle” of the right to counsel. Id., at 115. I would be open to reconsidering Burgett in a future case. The remaining two assumptions underpinning this case exemplify a central tension within our Indian-law juris- prudence. On the one hand, the only reason why tribal courts had the power to convict Bryant in proceedings where he had no right to counsel is that such prosecutions are a function of a tribe’s core sovereignty. See United States v. Lara, 541 U.S. 193, 197 (2004); United States v. Wheeler, 435 U.S. 313, 318, 322–323 (1978). By virtue of tribes’ status as “ ‘separate sovereigns pre-existing the Constitution,’ ” tribal prosecutions need not, under our precedents, comply with “ ‘those constitutional provisions framed specifically as limitations on federal or state au- thority.’ ” Ante, at 7–8 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). On the other hand, the validity of Bryant’s ensuing federal conviction rests upon a contrary view of tribal sovereignty. Congress ordinarily lacks authority to enact a general federal criminal law proscribing domestic abuse. See United States v. Morrison, 529 U.S. 598, 610–613 (2000). But, the Court suggests, Congress must intervene Cite as: 579 U. S. ____ (2016) 3 THOMAS, J., concurring on reservations to ensure that prolific domestic abusers receive sufficient punishment. See ante, at 4–5. The Court does not explain where Congress’ power to act comes from, but our precedents leave no doubt on this score. Congress could make Bryant’s domestic assaults a federal crime subject to federal prosecution only because our precedents have endowed Congress with an “all- encompassing” power over all aspects of tribal sovereignty. Wheeler, supra, at 319. Thus, even though tribal prosecu- tions of tribal members are purportedly the apex of tribal sovereignty, Congress can second-guess how tribes prose- cute domestic abuse perpetrated by Indians against other Indians on Indian land by virtue of its “plenary power” over Indian tribes. See United States v. Kagama, 118 U.S. 375, 382–384 (1886); accord, Lara, 541 U.S., at 200. I continue to doubt whether either view of tribal sover- eignty is correct. See id., at 215 (THOMAS, J., concurring in judgment). Indian tribes have varied origins, discrete treaties with the United States, and different patterns of assimilation and conquest. In light of the tribes’ distinct histories, it strains credulity to assume that all tribes necessarily retained the sovereign prerogative of prosecut- ing their own members. And by treating all tribes as possessing an identical quantum of sovereignty, the Court’s precedents have made it all but impossible to understand the ultimate source of each tribe’s sovereignty and whether it endures. See Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1070–1074, 1107–1110 (2004). Congress’ purported plenary power over Indian tribes rests on even shakier foundations. No enumerated power— not Congress’ power to “regulate Commerce . . . with In- dian Tribes,” not the Senate’s role in approving treaties, nor anything else—gives Congress such sweeping authority. See Lara, supra, at 224–225 (THOMAS, J., concurring in judg- ment); Adoptive Couple v. Baby Girl, 570 U. S. ___, ___– ___ (2013) (THOMAS, J., concurring) (slip op., at 3–5). 4 UNITED STATES v. BRYANT THOMAS, J., concurring Indeed, the Court created this new power because it was unable to find an enumerated power justifying the federal Major Crimes Act, which for the first time punished crimes committed by Indians against Indians on Indian land. See Kagama, supra, at 377–380; cf. ante, at 5. The Court asserted: “The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protec- tion . . . . It must exist in that government, because it has never existed anywhere else.” Kagama, supra, at 384. Over a century later, Kagama endures as the foundation of this doctrine, and the Court has searched in vain for any valid constitutional justification for this unfettered power. See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 566–567 (1903) (relying on Kagama’s race-based plenary power theory); Winton v. Amos, 255 U.S. 373, 391–392 (1921) (Congress’ “plenary authority” is based on Indians’ “condition of tutelage or dependency”); Wheeler, supra, at 319 (Winton and Lone Wolf illustrate the “undisputed fact that Congress has plenary authority” over tribes); Lara, supra, at 224 (THOMAS, J., concurring in judgment) (“The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty”). It is time that the Court reconsider these precedents. Until the Court ceases treating all Indian tribes as an undifferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty. And, until the Court rejects the fiction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all- encompassing control over the “remnants of a race” for its own good. Kagama, supra, at 384

The Court holds that neither the Sixth Amendment nor the Fifth Amendment’s Due Process Clause prohibits the Government from using Michael Bryant’s uncounseled tribal-court convictions as predicates for the federal crime of committing a domestic assault within Indian country. Ante, at 15–16; see 18 U.S. C. (making it a federal crime to “commi[t] a domestic assault within Indian country” if the person “has a final conviction on at least 2 separate prior occasions in Indian tribal court proceed- ings” for domestic assault and similar crimes). Because our precedents dictate that holding, I join the Court’s opinion. The fact that this case arose at all, however, illustrates how far afield our Sixth Amendment and Indian-law precedents have gone. Three basic assumptions underlie this case: that the Sixth Amendment ordinarily bars the Government from introducing, in a later proceeding, con- victions obtained in violation of the right to counsel, ante, at 8–9; that tribes’ retained sovereignty entitles them to prosecute tribal members in proceedings that are not subject to the Constitution, ante, at 7–8; and that Con- gress can punish assaults that tribal members commit against each other on Indian land, ante, at 5–7. Although our precedents have endorsed these assumptions for dec- 2 UNITED STATES v. BRYANT THOMAS, J., concurring ades, the Court has never identified a sound constitutional basis for any of them, and I see none. Start with the notion that the Sixth Amendment gener- ally prohibits the government from using a prior, uncoun- seled conviction obtained in violation of the right to coun- sel as a predicate for a new offense in a new proceeding. Ante, at 8–9. All that the text of the Sixth Amendment requires in a criminal prosecution is that the accused enjoy the “[a]ssistance of [c]ounsel” in that proceeding. The Court was likely wrong in Burgett v. Texas, 389 U.S. 109 (1967), when it created a Sixth Amendment “exclu- sionary rule” that prohibits the government from using prior convictions obtained in violation of the right to coun- sel in subsequent proceedings to avoid “erod[ing] the principle” of the right to counsel. I would be open to reconsidering Burgett in a future case. The remaining two assumptions underpinning this case exemplify a central tension within our Indian-law juris- prudence. On the one hand, the only reason why tribal courts had the power to convict Bryant in proceedings where he had no right to counsel is that such prosecutions are a function of a tribe’s core sovereignty. See United ; United States v. (8). By virtue of tribes’ status as “ ‘separate sovereigns pre-existing the Constitution,’ ” tribal prosecutions need not, under our precedents, comply with “ ‘those constitutional provisions framed specifically as limitations on federal or state au- thority.’ ” Ante, at 7–8 (quoting Santa Clara Pueblo v. Martinez, (8)). On the other hand, the validity of Bryant’s ensuing federal conviction rests upon a contrary view of tribal sovereignty. Congress ordinarily lacks authority to enact a general federal criminal law proscribing domestic abuse. See United 610–613 (2000). But, the Court suggests, Congress must intervene Cite as: 579 U. S. (2016) 3 THOMAS, J., concurring on reservations to ensure that prolific domestic abusers receive sufficient punishment. See ante, at 4–5. The Court does not explain where Congress’ power to act comes from, but our precedents leave no doubt on this score. Congress could make Bryant’s domestic assaults a federal crime subject to federal prosecution only because our precedents have endowed Congress with an “all- encompassing” power over all aspects of tribal sovereignty. Thus, even though tribal prosecu- tions of tribal members are purportedly the apex of tribal sovereignty, Congress can second-guess how tribes prose- cute domestic abuse perpetrated by Indians against other Indians on Indian land by virtue of its “plenary power” over Indian tribes. See United States v. 118 U.S. 375, 382–384 (1886); accord, I continue to doubt whether either view of tribal sover- eignty is correct. See (THOMAS, J., concurring in judgment). Indian tribes have varied origins, discrete treaties with the United States, and different patterns of assimilation and conquest. In light of the tribes’ distinct histories, it strains credulity to assume that all tribes necessarily retained the sovereign prerogative of prosecut- ing their own members. And by treating all tribes as possessing an identical quantum of sovereignty, the Court’s precedents have made it all but impossible to understand the ultimate source of each tribe’s sovereignty and whether it endures. See Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1070–1074, 1107–1110 Congress’ purported plenary power over Indian tribes rests on even shakier foundations. No enumerated power— not Congress’ power to “regulate Commerce with In- dian Tribes,” not the Senate’s role in approving treaties, nor anything else—gives Congress such sweeping authority. See –225 (THOMAS, J., concurring in judg- ment); Adoptive Couple v. Baby Girl, 570 U. S. – (2013) (THOMAS, J., concurring) (slip op., at 3–5). 4 UNITED STATES v. BRYANT THOMAS, J., concurring Indeed, the Court created this new power because it was unable to find an enumerated power justifying the federal Major Crimes Act, which for the first time punished crimes committed by Indians against Indians on Indian land. See at 377–380; cf. ante, at 5. The Court asserted: “The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protec- tion It must exist in that government, because it has never existed anywhere else.” Over a century later, endures as the foundation of this doctrine, and the Court has searched in vain for any valid constitutional justification for this unfettered power. See, e.g., Lone 6–7 (1903) (relying on ’s race-based plenary power theory); 391–392 (1921) (Congress’ “plenary authority” is based on Indians’ “condition of tutelage or dependency”); at 319 (Winton and Lone Wolf illustrate the “undisputed fact that Congress has plenary authority” over tribes); (“The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty”). It is time that the Court reconsider these precedents. Until the Court ceases treating all Indian tribes as an undifferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty. And, until the Court rejects the fiction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all- encompassing control over the “remnants of a race” for its own good.

Justice Thomas

majority

Egelhoff v. Egelhoff

2001-04-02

https://www.courtlistener.com/opinion/118416/egelhoff-v-egelhoff/

https://www.courtlistener.com/api/rest/v3/clusters/118416/

2000-036

A Washington statute provides that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. We are asked to decide whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, 29 U.S. C. § 1001 et seq., preempts that statute to the extent it applies to ERISA plans. We hold that it does. *144 I Petitioner Donna Rae Egelhoff was married to David A. Egelhoff. Mr. Egelhoff was employed by the Boeing Company, which provided him with a life insurance policy and a pension plan. Both plans were governed by ERISA, and Mr. Egelhoff designated his wife as the beneficiary under both. In April 1994, the Egelhoffs divorced. Just over two months later, Mr. Egelhoff died intestate following an automobile accident. At that time, Mrs. Egelhoff remained the listed beneficiary under both the life insurance policy and the pension plan. The life insurance proceeds, totaling $46,000, were paid to her. Respondents Samantha and David Egelhoff, Mr. Egelhoff's children by a previous marriage, are his statutory heirs under state law. They sued petitioner in Washington state court to recover the life insurance proceeds. Respondents relied on a Washington statute that provides: "If a marriage is dissolved or invalidated, a provision made prior to that event that relates to the payment or transfer at death of the decedent's interest in a nonprobate asset in favor of or granting an interest or power to the decedent's former spouse is revoked. A provision affected by this section must be interpreted, and the nonprobate asset affected passes, as if the former spouse failed to survive the decedent, having died at the time of entry of the decree of dissolution or declaration of invalidity." Wash. Rev. Code § 11.07.010(2)(a) (1994). That statute applies to "all nonprobate assets, wherever situated, held at the time of entry by a superior court of this state of a decree of dissolution of marriage or a declaration of invalidity." § 11.07.010(1). It defines "nonprobate asset" to include "a life insurance policy, employee benefit plan, annuity or similar contract, or individual retirement account." § 11.07.010(5)(a). *145 Respondents argued that they were entitled to the life insurance proceeds because the Washington statute disqualified Mrs. Egelhoff as a beneficiary, and in the absence of a qualified named beneficiary, the proceeds would pass to them as Mr. Egelhoff's heirs. In a separate action, respondents also sued to recover the pension plan benefits. Respondents again argued that the Washington statute disqualified Mrs. Egelhoff as a beneficiary and they were thus entitled to the benefits under the plan. The trial courts, concluding that both the insurance policy and the pension plan "should be administered in accordance" with ERISA, granted summary judgment to petitioner in both cases. App. to Pet. for Cert. 46a, 48a. The Washington Court of Appeals consolidated the cases and reversed. In re Estate of Egelhoff, 93 Wash. App. 314, 968 P.2d 924 (1998). It concluded that the Washington statute was not pre-empted by ERISA. Id., at 317, 968 P.2d, at 925. Applying the statute, it held that respondents were entitled to the proceeds of both the insurance policy and the pension plan. Ibid. The Supreme Court of Washington affirmed. 139 Wash. 2d 557, 989 P.2d 80 (1999). It held that the state statute, although applicable to "employee benefit plan[s]," does not "refe[r] to" ERISA plans to an extent that would require pre-emption, because it "does not apply immediately and exclusively to an ERISA plan, nor is the existence of such a plan essential to operation of the statute." Id., at 574, 989 P.2d, at 89. It also held that the statute lacks a "connection with" an ERISA plan that would compel pre-emption. Id., at 576, 989 P.2d, at 90. It emphasized that the statute "does not alter the nature of the plan itself, the administrator's fiduciary duties, or the requirements for plan administration." Id., at 575, 989 P.2d, at 90. Nor, the court concluded, does the statute conflict with any specific provision of ERISA, including the antialienation provision, 29 U.S. C. § 1056(d)(1), because it "does not operate to divert benefit *146 plan proceeds from distribution under terms of the plan documents," but merely alters "the underlying circumstances to which the distribution scheme of [the] plan must be applied." 139 Wash. 2d, at 578, 989 P.2d, at 91. Courts have disagreed about whether statutes like that of Washington are pre-empted by ERISA. Compare, e. g., Manning v. Hayes, 212 F.3d 866 (CA5 2000) (finding preemption), cert. pending, No. 00-265,[*] and Metropolitan Life Ins. Co. v. Hanslip, 939 F.2d 904 (CA10 1991) (same), with, e. g., Emard v. Hughes Aircraft Co., 153 F.3d 949 (CA9 1998) (finding no pre-emption), and 139 Wash. 2d, at 557, 989 P.2d, at 80 (same). To resolve the conflict, we granted certiorari. 530 U.S. 1242 (2000). II Petitioner argues that the Washington statute falls within the terms of ERISA's express pre-emption provision and that it is pre-empted by ERISA under traditional principles of conflict pre-emption. Because we conclude that the statute is expressly pre-empted by ERISA, we address only the first argument. ERISA's pre-emption section, 29 U.S. C. § 1144(a), states that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. We have observed repeatedly that this broadly worded provision is "clearly expansive." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995); see, e. g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (listing cases in which we have described ERISA pre-emption in broad terms). But at the same time, we have recognized that the term "relate to" cannot be taken "to extend to the furthest stretch of its indeterminacy," or else "for all practical purposes pre-emption would never run its course." Travelers, supra, at 655. *147 We have held that a state law relates to an ERISA plan "if it has a connection with or reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983). Petitioner focuses on the "connection with" part of this inquiry. Acknowledging that "connection with" is scarcely more restrictive than "relate to," we have cautioned against an "uncritical literalism" that would make pre-emption turn on "infinite connections." Travelers, supra, at 656. Instead, "to determine whether a state law has the forbidden connection, we look both to `the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,' as well as to the nature of the effect of the state law on ERISA plans." California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U.S. 316, 325 (1997), quoting Travelers, supra, at 656 (citation omitted). Applying this framework, petitioner argues that the Washington statute has an impermissible connection with ERISA plans. We agree. The statute binds ERISA plan administrators to a particular choice of rules for determining beneficiary status. The administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents. The statute thus implicates an area of core ERISA concern. In particular, it runs counter to ERISA's commands that a plan shall "specify the basis on which payments are made to and from the plan," § 1102(b)(4), and that the fiduciary shall administer the plan "in accordance with the documents and instruments governing the plan," § 1104(a)(1)(D), making payments to a "beneficiary" who is "designated by a participant, or by the terms of [the] plan." § 1002(8).[1] In other words, unlike generally applicable *148 laws regulating "areas where ERISA has nothing to say," Dillingham, 519 U. S., at 330, which we have upheld notwithstanding their incidental effect on ERISA plans, see, e. g., ibid., this statute governs the payment of benefits, a central matter of plan administration. The Washington statute also has a prohibited connection with ERISA plans because it interferes with nationally uniform plan administration. One of the principal goals of ERISA is to enable employers "to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits." Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9 (1987). Uniformity is impossible, however, if plans are subject to different legal obligations in different States. The Washington statute at issue here poses precisely that threat. Plan administrators cannot make payments simply by identifying the beneficiary specified by the plan documents.[2] Instead they must familiarize themselves with *149 state statutes so that they can determine whether the named beneficiary's status has been "revoked" by operation of law. And in this context the burden is exacerbated by the choiceof-law problems that may confront an administrator when the employer is located in one State, the plan participant lives in another, and the participant's former spouse lives in a third. In such a situation, administrators might find that plan payments are subject to conflicting legal obligations. To be sure, the Washington statute protects administrators from liability for making payments to the named beneficiary unless they have "actual knowledge of the dissolution or other invalidation of marriage," Wash. Rev. Code § 11.07.010(3)(a) (1994), and it permits administrators to refuse to make payments until any dispute among putative beneficiaries is resolved, § 11.07.010(3)(b). But if administrators do pay benefits, they will face the risk that a court might later find that they had "actual knowledge" of a divorce. If they instead decide to await the results of litigation before paying benefits, they will simply transfer to the beneficiaries the costs of delay and uncertainty.[3] Requiring ERISA administrators to master the relevant laws of 50 States and to contend with litigation would undermine the *150 congressional goal of "minimiz[ing] the administrative and financial burden[s]" on plan administrators—burdens ultimately borne by the beneficiaries. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990). We recognize that all state laws create some potential for a lack of uniformity. But differing state regulations affecting an ERISA plan's "system for processing claims and paying benefits" impose "precisely the burden that ERISA preemption was intended to avoid." Fort Halifax, supra, at 10. And as we have noted, the statute at issue here directly conflicts with ERISA's requirements that plans be administered, and benefits be paid, in accordance with plan documents. We conclude that the Washington statute has a "connection with" ERISA plans and is therefore pre-empted. III Respondents suggest several reasons why ordinary ERISA pre-emption analysis should not apply here. First, they observe that the Washington statute allows employers to opt out. According to respondents, the statute neither regulates plan administration nor impairs uniformity because it does not apply when "[t]he instrument governing disposition of the nonprobate asset expressly provides otherwise." Wash. Rev. Code § 11.07.010(2)(b)(i) (1994). We do not believe that the statute is saved from pre-emption simply because it is, at least in a broad sense, a default rule. Even though the Washington statute's cancellation of private choice may itself be trumped by specific language in the plan documents, the statute does "dictate the choice[s] facing ERISA plans" with respect to matters of plan administration. Dillingham, supra, at 334. Plan administrators must either follow Washington's beneficiary designation scheme or alter the terms of their plan so as to indicate that they will not follow it. The statute is not any less of a regulation of the terms of ERISA plans simply because there are two ways of complying with it. Of course, simple noncompliance *151 with the statute is not one of the options available to plan administrators. Their only choice is one of timing, i. e., whether to bear the burden of compliance ex post, by paying benefits as the statute dictates (and in contravention of the plan documents), or ex ante, by amending the plan.[4] Respondents emphasize that the opt-out provision makes compliance with the statute less burdensome than if it were mandatory. That is true enough, but the burden that remains is hardly trivial. It is not enough for plan administrators to opt out of this particular statute. Instead, they must maintain a familiarity with the laws of all 50 States so that they can update their plans as necessary to satisfy the optout requirements of other, similar statutes. They also must be attentive to changes in the interpretations of those statutes by state courts. This "tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction" is exactly the burden ERISA seeks to eliminate. IngersollRand, supra, at 142. Second, respondents emphasize that the Washington statute involves both family law and probate law, areas of traditional state regulation. There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law. See, e. g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979). But that presumption can be overcome where, as here, Congress has made clear its desire for pre-emption. Accordingly, we have not hesitated to find state family law pre-empted when it conflicts with ERISA or relates to ERISA plans. See, e. g., Boggs v. Boggs, 520 *152 U. S. 833 (1997) (holding that ERISA pre-empts a state community property law permitting the testamentary transfer of an interest in a spouse's pension plan benefits). Finally, respondents argue that if ERISA pre-empts this statute, then it also must pre-empt the various state statutes providing that a murdering heir is not entitled to receive property as a result of the killing. See, e. g., Cal. Prob. Code Ann. §§ 250-259 (West 1991 and Supp. 2000); 755 Ill. Comp. Stat., ch. 755, § 5/2-6 (1999). In the ERISA context, these "slayer" statutes could revoke the beneficiary status of someone who murdered a plan participant. Those statutes are not before us, so we do not decide the issue. We note, however, that the principle underlying the statutes—which have been adopted by nearly every State—is well established in the law and has a long historical pedigree predating ERISA. See, e. g., Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). And because the statutes are more or less uniform nationwide, their interference with the aims of ERISA is at least debatable. * * * The judgment of the Supreme Court of Washington is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

A Washington statute provides that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. We are asked to decide whether the Employee Retirement Income Security Act of 14 (ERISA), 2 U.S. C. 1001 et seq., preempts that statute to the extent it applies to ERISA plans. We hold that it does. *144 I Petitioner Donna Rae Egelhoff was married to David A. Egelhoff. Mr. Egelhoff was employed by the Boeing Company, which provided him with a life insurance policy a pension plan. Both plans were governed by ERISA, Mr. Egelhoff designated his wife as the beneficiary under both. In April 14, the Egelhoffs divorced. Just over two months later, Mr. Egelhoff died intestate following an automobile accident. At that time, Mrs. Egelhoff remained the listed beneficiary under both the life insurance policy the pension plan. The life insurance proceeds, totaling $46,000, were paid to her. Respondents Samantha David Egelhoff, Mr. Egelhoff's children by a previous marriage, are his statutory heirs under state law. They sued petitioner in Washington state court to recover the life insurance proceeds. Respondents relied on a Washington statute that provides: "If a marriage is dissolved or invalidated, a provision made prior to that event that relates to the payment or transfer at death of the decedent's interest in a nonprobate asset in favor of or granting an interest or power to the decedent's former spouse is revoked. A provision affected by this section must be interpreted, the nonprobate asset affected passes, as if the former spouse failed to survive the decedent, having died at the time of entry of the decree of dissolution or declaration of invalidity." Wash. Rev. Code 11.07.010(2)(a) (14). That statute applies to "all nonprobate assets, wherever situated, held at the time of entry by a superior court of this state of a decree of dissolution of marriage or a declaration of invalidity." 11.07.010(1). It defines "nonprobate asset" to include "a life insurance policy, employee benefit plan, annuity or similar contract, or individual retirement account." 11.07.010(5)(a). *145 Respondents argued that they were entitled to the life insurance proceeds because the Washington statute disqualified Mrs. Egelhoff as a beneficiary, in the absence of a qualified named beneficiary, the proceeds would pass to them as Mr. Egelhoff's heirs. In a separate action, respondents also sued to recover the pension plan benefits. Respondents again argued that the Washington statute disqualified Mrs. Egelhoff as a beneficiary they were thus entitled to the benefits under the plan. The trial courts, concluding that both the insurance policy the pension plan "should be administered in accordance" with ERISA, granted summary judgment to petitioner in both cases. App. to Pet. for Cert. 46a, 48a. The Washington Court of Appeals consolidated the cases reversed. In re Estate of Egelhoff, It concluded that the Washington statute was not pre-empted by ERISA. Applying the statute, it held that respondents were entitled to the proceeds of both the insurance policy the pension plan. The Supreme Court of Washington affirmed. It held that the state statute, although applicable to "employee benefit plan[s]," does not "refe[r] to" ERISA plans to an extent that would require pre-emption, because it "does not apply immediately exclusively to an ERISA plan, nor is the existence of such a plan essential to operation of the statute." It also held that the statute lacks a "connection with" an ERISA plan that would compel pre-emption. It emphasized that the statute "does not alter the nature of the plan itself, the administrator's fiduciary duties, or the requirements for plan administration." Nor, the court concluded, does the statute conflict with any specific provision of ERISA, including the antialienation provision, 2 U.S. C. 1056(d)(1), because it "does not operate to divert benefit *146 plan proceeds from distribution under terms of the plan documents," but merely alters "the underlying circumstances to which the distribution scheme of [the] plan must be applied." Courts have disagreed about whether statutes like that of Washington are pre-empted by ERISA. Compare, e. g., cert. pending, No. 00-265,[*] Metropolitan Life Ins. with, e. g., To resolve the conflict, we granted certiorari. II Petitioner argues that the Washington statute falls within the terms of ERISA's express pre-emption provision that it is pre-empted by ERISA under traditional principles of conflict pre-emption. Because we conclude that the statute is expressly pre-empted by ERISA, we address only the first argument. ERISA's pre-emption section, 2 U.S. C. 1144(a), states that ERISA "shall supersede any all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. We have observed repeatedly that this broadly worded provision is "clearly expansive." New York State Conference of Blue Cross & Blue Shield ; see, e. g., But at the same time, we have recognized that the term "relate to" cannot be taken "to extend to the furthest stretch of its indeterminacy," or else "for all practical purposes pre-emption would never run its course." at *147 We have held that a state law relates to an ERISA plan "if it has a connection with or reference to such a plan." Petitioner focuses on the "connection with" part of this inquiry. Acknowledging that "connection with" is scarcely more restrictive than "relate to," we have cautioned against an "uncritical literalism" that would make pre-emption turn on "infinite connections." Instead, "to determine whether a state law has the forbidden connection, we look both to `the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,' as well as to the nature of the effect of the state law on ERISA plans." California Div. of Labor Stards (1), quoting Applying this framework, petitioner argues that the Washington statute has an impermissible connection with ERISA plans. We agree. The statute binds ERISA plan administrators to a particular choice of rules for determining beneficiary status. The administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents. The statute thus implicates an area of core ERISA concern. In particular, it runs counter to ERISA's comms that a plan shall "specify the basis on which payments are made to from the plan," 1102(b)(4), that the fiduciary shall administer the plan "in accordance with the documents instruments governing the plan," 1104(a)(1)(D), making payments to a "beneficiary" who is "designated by a participant, or by the terms of [the] plan." 1002(8).[1] In other words, unlike generally applicable *148 laws regulating "areas where ERISA has nothing to say," which we have upheld notwithsting their incidental effect on ERISA plans, see, e. g., ibid., this statute governs the payment of benefits, a central matter of plan administration. The Washington statute also has a prohibited connection with ERISA plans because it interferes with nationally uniform plan administration. One of the principal goals of ERISA is to enable employers "to establish a uniform administrative scheme, which provides a set of stard procedures to guide processing of claims disbursement of benefits." Fort Packing Uniformity is impossible, however, if plans are subject to different legal obligations in different States. The Washington statute at issue here poses precisely that threat. Plan administrators cannot make payments simply by identifying the beneficiary specified by the plan documents.[2] Instead they must familiarize themselves with *14 state statutes so that they can determine whether the named beneficiary's status has been "revoked" by operation of law. And in this context the burden is exacerbated by the choiceof-law problems that may confront an administrator when the employer is located in one State, the plan participant lives in another, the participant's former spouse lives in a third. In such a situation, administrators might find that plan payments are subject to conflicting legal obligations. To be sure, the Washington statute protects administrators from liability for making payments to the named beneficiary unless they have "actual knowledge of the dissolution or other invalidation of marriage," Wash. Rev. Code 11.07.010(3)(a) (14), it permits administrators to refuse to make payments until any dispute among putative beneficiaries is resolved, 11.07.010(3)(b). But if administrators do pay benefits, they will face the risk that a court might later find that they had "actual knowledge" of a divorce. If they instead decide to await the results of litigation before paying benefits, they will simply transfer to the beneficiaries the costs of delay uncertainty.[3] Requiring ERISA administrators to master the relevant laws of 50 States to contend with litigation would undermine the *150 congressional goal of "minimiz[ing] the administrative financial burden[s]" on plan administrators—burdens ultimately borne by the beneficiaries. Ingersoll-R 48 U.S. 133, (10). We recognize that all state laws create some potential for a lack of uniformity. But differing state regulations affecting an ERISA plan's "system for processing claims paying benefits" impose "precisely the burden that ERISA preemption was intended to avoid." Fort And as we have noted, the statute at issue here directly conflicts with ERISA's requirements that plans be administered, benefits be paid, in accordance with plan documents. We conclude that the Washington statute has a "connection with" ERISA plans is therefore pre-empted. III Respondents suggest several reasons why ordinary ERISA pre-emption analysis should not apply here. First, they observe that the Washington statute allows employers to opt out. According to respondents, the statute neither regulates plan administration nor impairs uniformity because it does not apply when "[t]he instrument governing disposition of the nonprobate asset expressly provides otherwise." Wash. Rev. Code 11.07.010(2)(b)(i) (14). We do not believe that the statute is saved from pre-emption simply because it is, at least in a broad sense, a default rule. Even though the Washington statute's cancellation of private choice may itself be trumped by specific language in the plan documents, the statute does "dictate the choice[s] facing ERISA plans" with respect to matters of plan administration. Plan administrators must either follow Washington's beneficiary designation scheme or alter the terms of their plan so as to indicate that they will not follow it. The statute is not any less of a regulation of the terms of ERISA plans simply because there are two ways of complying with it. Of course, simple noncompliance *151 with the statute is not one of the options available to plan administrators. Their only choice is one of timing, i. e., whether to bear the burden of compliance ex post, by paying benefits as the statute dictates ( in contravention of the plan documents), or ex ante, by amending the plan.[4] Respondents emphasize that the opt-out provision makes compliance with the statute less burdensome than if it were matory. That is true enough, but the burden that remains is hardly trivial. It is not enough for plan administrators to opt out of this particular statute. Instead, they must maintain a familiarity with the laws of all 50 States so that they can update their plans as necessary to satisfy the optout requirements of other, similar statutes. They also must be attentive to changes in the interpretations of those statutes by state courts. This "tailoring of plans employer conduct to the peculiarities of the law of each jurisdiction" is exactly the burden ERISA seeks to eliminate. IngersollR, at Second, respondents emphasize that the Washington statute involves both family law probate law, areas of traditional state regulation. There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law. See, e. g., 43 U.S. 572, (1). But that presumption can be overcome where, as here, Congress has made clear its desire for pre-emption. Accordingly, we have not hesitated to find state family law pre-empted when it conflicts with ERISA or relates to ERISA plans. See, e. g., (1) Finally, respondents argue that if ERISA pre-empts this statute, then it also must pre-empt the various state statutes providing that a murdering heir is not entitled to receive property as a result of the killing. See, e. g., Cal. Prob. Code Ann. 250-25 ; 755 Ill. Comp. Stat., ch. 755, 5/2-6 In the ERISA context, these "slayer" statutes could revoke the beneficiary status of someone who murdered a plan participant. Those statutes are not before us, so we do not decide the issue. We note, however, that the principle underlying the statutes—which have been adopted by nearly every State—is well established in the law has a long historical pedigree predating ERISA. See, e. g., (188). And because the statutes are more or less uniform nationwide, their interference with the aims of ERISA is at least debatable. * * * The judgment of the Supreme Court of Washington is reversed, the case is remed for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Scalia

concurring

Egelhoff v. Egelhoff

2001-04-02

https://www.courtlistener.com/opinion/118416/egelhoff-v-egelhoff/

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2000-036

I join the opinion of the Court, since I believe that the "relate to" pre-emptive provision of the Employee Retirement Income Security Act of 1974 (ERISA) is assuredly triggered by a state law that contradicts ERISA. As the Court notes, "the statute at issue here directly conflicts with ERISA's requirements that plans be administered, and benefits be paid, in accordance with plan documents." Ante, at 150. I remain unsure (as I think the lower courts and everyone else will be) as to what else triggers the "relate to" provision, *153 which—if it is interpreted to be anything other than a reference to our established jurisprudence concerning conflict and field pre-emption—has no discernible content that would not pick up every ripple in the pond, producing a result "that no sensible person could have intended." California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U.S. 316, 336 (1997) (Scalia, J., concurring). I persist in the view that we can bring some coherence to this area, and can give the statute both a plausible and precise content, only by interpreting the "relate to" clause as a reference to our ordinary pre-emption jurisprudence. See ibid.

I join the opinion of the Court, since I believe that the "relate to" pre-emptive provision of the Employee Retirement Income Security Act of 1974 (ERISA) is assuredly triggered by a state law that contradicts ERISA. As the Court notes, "the statute at issue here directly conflicts with ERISA's requirements that plans be administered, and benefits be paid, in accordance with plan documents." Ante, at 150. I remain unsure (as I think the lower courts and everyone else will be) as to what else triggers the "relate to" provision, *153 which—if it is interpreted to be anything other than a reference to our established jurisprudence concerning conflict and field pre-emption—has no discernible content that would not pick up every ripple in the pond, producing a result "that no sensible person could have intended." California Div. of Labor Standards I persist in the view that we can bring some coherence to this area, and can give the statute both a plausible and precise content, only by interpreting the "relate to" clause as a reference to our ordinary pre-emption jurisprudence. See

Justice Breyer

dissenting

Egelhoff v. Egelhoff

2001-04-02

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2000-036

Like Justice Scalia, I believe that we should apply normal conflict pre-emption and field pre-emption principles where, as here, a state statute covers ERISA and nonERISA documents alike. Ante this page (concurring opinion). Our more recent ERISA cases are consistent with this approach. See De Buono v. NYSA—ILA Medical and Clinical Services Fund, 520 U.S. 806, 812-813 (1997) (rejecting literal interpretation of ERISA's pre-emption clause); California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U.S. 316, 334 (1997) (narrowly interpreting the clause); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) ("go[ing] beyond the unhelpful text [of the clause] and the frustrating difficulty of defining its key term, and look[ing] instead to the objectives of the ERISA statute as a guide"). See also Boggs v. Boggs, 520 U.S. 833, 841 (1997) (relying on conflict pre-emption principles instead of ERISA's pre-emption clause). And I fear that our failure to endorse this "new approach" explicitly, Dillingham, supra, at 336 (Scalia, J., concurring), will continue to produce an "avalanche of litigation," De Buono, supra, at 809, n. 1, as *154 courts struggle to interpret a clause that lacks any "discernible content," ante, at 153 (Scalia, J., concurring), threatening results that Congress could not have intended. I do not agree with Justice Scalia or with the majority, however, that there is any plausible pre-emption principle that leads to a conclusion that ERISA pre-empts the statute at issue here. No one could claim that ERISA pre-empts the entire field of state law governing inheritance—though such matters "relate to" ERISA broadly speaking. See Travelers, supra, at 655. Neither is there any direct conflict between the Washington statute and ERISA, for the one nowhere directly contradicts the other. Cf. ante, at 150 (claiming a "direc[t] conflic[t]" between ERISA and the Washington statute). But cf. ante, at 146 (relying upon the "relate to" language in ERISA's pre-emption clause). The Court correctly points out that ERISA requires a fiduciary to make payments to a beneficiary "in accordance with the documents and instruments governing the plan." 29 U.S. C. § 1104(a)(1)(D). But nothing in the Washington statute requires the contrary. Rather, the state statute simply sets forth a default rule for interpreting documentary silence. The statute specifies that a nonprobate asset will pass at A's death "as if" A's "former spouse" had died first— unless the "instrument governing disposition of the nonprobate asset expressly provides otherwise. " Wash. Rev. Code § 11.07.010(2)(b)(i) (1994) (emphasis added). This state-law rule is a rule of interpretation, and it is designed to carry out, not to conflict with, the employee's likely intention as revealed in the plan documents. There is no direct conflict or contradiction between the Washington statute and the terms of the plan documents here at issue. David Egelhoff's investment plan provides that when a "beneficiary designation" is "invalid," the "benefits will be paid" to a "surviving spouse," or "[i]f there is no surviving spouse," to the "children in equal shares." App. 40. The life insurance plan is silent about what occurs when *155 a beneficiary designation is invalid. The Washington statute fills in these gaps, i. e., matters about which the documents themselves say nothing. Thus, the Washington statute specifies that a beneficiary designation—here "Donna R. Egelhoff wife" in the pension plan—is invalid where there is no longer any such person as Donna R. Egelhoff, wife. See Appendix, infra. And the statute adds that in such instance the funds would be paid to the children, who themselves are potential pension plan beneficiaries. The Court's "direct conflict" conclusion rests upon its claim that "administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents." Ante, at 147. But the Court cannot mean "identified anywhere in the plan documents," for the Egelhoff children were "identified" as recipients in the pension plan documents should the initial designation to "Donna R. Egelhoff wife" become invalid. And whether that initial designation became invalid upon divorce is a matter about which the plan documents are silent. To refer to state law to determine whether a given name makes a designation that is, or has become, invalid makes sense where background property or inheritance law is at issue, say, for example, where a written name is potentially ambiguous, where it is set forth near, but not in, the correct space, where it refers to a missing person perhaps presumed dead, where the name was written at a time the employee was incompetent, or where the name refers to an individual or entity disqualified by other law, say, the rule against perpetuities or rules prohibiting a murderer from benefiting from his crime. Why would Congress want the courts to create an ERISA-related federal property law to deal with such problems? Regardless, to refer to background state law in such circumstances does not directly conflict with any explicit ERISA provision, for no provision of ERISA forbids reading an instrument or document in light of state property law principles. In any event, in this case the plan documents *156 explicitly foresee that a beneficiary designation may become "invalid," but they do not specify the invalidating circumstances. Supra, at 154-155. To refer to state property law to fill in that blank cannot possibly create any direct conflict with the plan documents. The majority simply denies that there is any blank to fill in and suggests that the plan documents require the plan to pay the designated beneficiary under all circumstances. See ante, at 147-148, n. 1. But there is nonetheless an open question, namely, whether a designation that (here explicitly) refers to a wife remains valid after divorce. The question is genuine and important (unlike the imaginary example in the majority's footnote). The plan documents themselves do not answer the question any more than they describe what is to occur in a host of other special circumstances (e. g., mental incompetence, intoxication, ambiguous names, etc.). To determine whether ERISA permits state law to answer such questions requires a careful examination of the particular state law in light of ERISA's basic policies. See ante, at 147; infra this page and 157-159. We should not short circuit that necessary inquiry simply by announcing a "direct conflict" where none exists. The Court also complains that the Washington statute restricts the plan's choices to "two." Ante, at 150. But it is difficult to take this complaint seriously. After all, the two choices that Washington gives the plan are (1) to comply with Washington's rule or (2) not to comply with Washington's rule. What other choices could there be? A state statute that asks a plan to choose whether it intends to comply is not a statute that directly conflicts with a plan. Quite obviously, it is possible, not "`impossible,' " to comply with both the Washington statute and federal law. Geier v. American Honda Motor Co., 529 U.S. 861, 873 (2000). The more serious pre-emption question is whether this state statute "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' *157 " Ibid. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). In answering that question, we must remember that petitioner has to overcome a strong presumption against pre-emption. That is because the Washington statute governs family property law—a "fiel[d] of traditional state regulation," where courts will not find federal preemption unless such was the "`clear and manifest purpose of Congress,' " Travelers, 514 U. S., at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)), or the state statute does "`major damage' to `clear and substantial' federal interests," Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting United States v. Yazell, 382 U.S. 341, 352 (1966)). No one can seriously argue that Congress has clearly resolved the question before us. And the only damage to federal interests that the Court identifies consists of the added administrative burden the state statute imposes upon ERISA plan administrators. The Court claims that the Washington statute "interferes with nationally uniform plan administration" by requiring administrators to "familiarize themselves with state statutes." Ante, at 148-149. But administrators have to familiarize themselves with state law in any event when they answer such routine legal questions as whether amounts due are subject to garnishment, Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 838 (1988), who is a "spouse," who qualifies as a "child," or when an employee is legally dead. And were that "familiarizing burden" somehow overwhelming, the plan could easily avoid it by resolving the divorce revocation issue in the plan documents themselves, stating expressly that state law does not apply. The "burden" thus reduces to a one-time requirement that would fall primarily upon the few who draft model ERISA documents, not upon the many who administer them. So meager a burden cannot justify pre-empting a state law that enjoys a presumption against pre-emption. *158 The Court also fears that administrators would have to make difficult choice-of-law determinations when parties live in different States. Ante, at 148-149. Whether this problem is or is not "major" in practice, the Washington statute resolves it by expressly setting forth procedures whereby the parties or the courts, not the plan administrator, are responsible for resolving it. See §§ 11.07.010(3)(b)(i)—(ii) (stating that a plan may "without liability, refuse to pay or transfer a nonprobate asset" until "[a]ll beneficiaries and other interested persons claiming an interest have consented in writing to the payment or transfer" or "[t]he payment or transfer is authorized or directed by a court of proper jurisdiction"); § 11.07.010(3)(c) (plan may condition payment on provision of security by recipient to indemnify plan for costs); § 11.07.010(2)(b)(i) (plan may avoid default rule by expressing its intent in the plan documents). The Court has previously made clear that the fact that state law "impose[s] some burde[n] on the administration of ERISA plans" does not necessarily require pre-emption. De Buono, 520 U. S., at 815; Mackey, supra, at 831 (upholding state garnishment law notwithstanding claim that "benefit plans subjected to garnishment will incur substantial administrative burdens"). Precisely, what is it about this statute's requirement that distinguishes it from the "`myriad state laws' " that impose some kind of burden on ERISA plans? De Buono, supra, at 815 (quoting Travelers, supra, at 668). Indeed, if one looks beyond administrative burden, one finds that Washington's statute poses no obstacle, but furthers ERISA's ultimate objective—developing a fair system for protecting employee benefits. Cf. Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U.S. 717, 720 (1984). The Washington statute transfers an employee's pension assets at death to those individuals whom the worker would likely have wanted to receive them. As many jurisdictions have concluded, divorced workers more often prefer that a child, rather than a divorced spouse, receive *159 those assets. Of course, an employee can secure this result by changing a beneficiary form; but doing so requires awareness, understanding, and time. That is why Washington and many other jurisdictions have created a statutory assumption that divorce works a revocation of a designation in favor of an ex-spouse. That assumption is embodied in the Uniform Probate Code; it is consistent with human experience; and those with expertise in the matter have concluded that it "more often" serves the cause of "[j]ustice." Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108, 1135 (1984). In forbidding Washington to apply that assumption here, the Court permits a divorced wife, who already acquired, during the divorce proceeding, her fair share of the couple's community property, to receive in addition the benefits that the divorce court awarded to her former husband. To be more specific, Donna Egelhoff already received a business, an IRA account, and stock; David received, among other things, 100% of his pension benefits. App. 31-34. David did not change the beneficiary designation in the pension plan or life insurance plan during the 6-month period between his divorce and his death. As a result, Donna will now receive a windfall of approximately $80,000 at the expense of David's children. The State of Washington enacted a statute to prevent precisely this kind of unfair result. But the Court, relying on an inconsequential administrative burden, concludes that Congress required it. Finally, the logic of the Court's decision does not stop at divorce revocation laws. The Washington statute is virtually indistinguishable from other traditional state-law rules, for example, rules using presumptions to transfer assets in the case of simultaneous deaths, and rules that prohibit a husband who kills a wife from receiving benefits as a result of the wrongful death. It is particularly difficult to believe that Congress wanted to pre-empt the latter kind of statute. But how do these statutes differ from the one before us? *160 Slayer statutes—like this statute—"gover[n] the payment of benefits, a central matter of plan administration." Ante, at 148. And contrary to the Court's suggestion, ante, at 152, slayer statutes vary from State to State in their details just like divorce revocation statutes. Compare Ariz. Rev. Stat. Ann. § 14-2803(F) (1995) (requiring proof, in a civil proceeding, under preponderance of the evidence standard); Haw. Rev. Stat. § 560:2-803(g) (1999) (same), with Ga. Code Ann. § 53-1—5(d) (Supp. 1996) (requiring proof under clear and convincing evidence standard); Me. Rev. Stat. Ann., Tit. 18—A, § 2-803(e) (1998) (same); and Ala. Code § 43-8—253(e) (1991) (treating judgment of conviction as conclusive when it becomes final); Me. Rev. Stat. Ann., Tit. 18—A, § 2-803(e) (1998) (same), with Ariz. Rev. Stat. Ann. § 14-2803(F) (1995) (treating judgment of conviction as conclusive only after "all right to appeal has been exhausted"); Haw. Rev. Stat. § 560:2— 803(g) (1999) (same). Indeed, the "slayer" conflict would seem more serious, not less serious, than the conflict before us, for few, if any, slayer statutes permit plans to opt out of the state property law rule. "ERISA pre-emption analysis," the Court has said, must "respect" the "separate spher[e]" of state "authority." Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 19 (1987) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522 (1981)) (internal quotation marks omitted). In so stating, the Court has recognized the practical importance of preserving local independence, at retail, i. e., by applying pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute's language and purpose with federalism's need to preserve state autonomy. Indeed, in today's world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress' commerce power at its edges, United States v. Morrison, 529 U.S. 598 (2000), or to protect a State's treasury from a private damages action, Board of Trustees of Univ. of Ala. v. *161 Garrett, 531 U.S. 356 (2001), but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law, AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 427 (1999) (Breyer, J., concurring in part and dissenting in part). In this case, "field pre-emption" is not at issue. There is no "direct" conflict between state and federal statutes. The state statute poses no significant obstacle to the accomplishment of any federal objective. Any effort to squeeze some additional pre-emptive force from ERISA's words (i. e., "relate to") is inconsistent with the Court's recent case law. And the state statute before us is one regarding family property—a "fiel[d] of traditional state regulation," where the interpretive presumption against pre-emption is particularly strong. Travelers, 514 U. S., at 655. For these reasons, I disagree with the Court's conclusion. And, consequently, I dissent. APPENDIX TO OPINION OF BREYER, J.

Like Justice Scalia, I believe that we should apply normal conflict pre-emption and field pre-emption principles where, as here, a state statute covers ERISA and nonERISA documents alike. Ante this page (concurring opinion). Our more recent ERISA cases are consistent with this approach. See De ; California Div. of Labor Standards ; New York State Conference of Blue Cross & Blue Shield See also And I fear that our failure to endorse this "new approach" explicitly, will continue to produce an "avalanche of litigation," De as *154 courts struggle to interpret a clause that lacks any "discernible content," ante, at 153 threatening results that Congress could not have intended. I do not agree with Justice Scalia or with the majority, however, that there is any plausible pre-emption principle that leads to a conclusion that ERISA pre-empts the statute at issue here. No one could claim that ERISA pre-empts the entire field of state law governing inheritance—though such matters "relate to" ERISA broadly speaking. See Neither is there any direct conflict between the Washington statute and ERISA, for the one nowhere directly contradicts the other. Cf. ante, at 150 (claiming a "direc[t] conflic[t]" between ERISA and the Washington statute). But cf. ante, at 146 (relying upon the "relate to" language in ERISA's pre-emption clause). The Court correctly points out that ERISA requires a fiduciary to make payments to a beneficiary "in accordance with the documents and instruments governing the plan." 29 U.S. C. 1104(a)(1)(D). But nothing in the Washington statute requires the contrary. Rather, the state statute simply sets forth a default rule for interpreting documentary silence. The statute specifies that a nonprobate asset will pass at A's death "as if" A's "former spouse" had died first— unless the "instrument governing disposition of the nonprobate asset expressly provides otherwise. " Wash. Rev. Code 11.07.010(2)(b)(i) (94) This state-law rule is a rule of interpretation, and it is designed to carry out, not to conflict with, the employee's likely intention as revealed in the plan documents. There is no direct conflict or contradiction between the Washington statute and the terms of the plan documents here at issue. David Egelhoff's investment plan provides that when a "beneficiary designation" is "invalid," the "benefits will be paid" to a "surviving spouse," or "[i]f there is no surviving spouse," to the "children in equal shares." App. 40. The life insurance plan is silent about what occurs when *155 a beneficiary designation is invalid. The Washington statute fills in these gaps, i. e., matters about which the documents themselves say nothing. Thus, the Washington statute specifies that a beneficiary designation—here "Donna R. Egelhoff wife" in the pension plan—is invalid where there is no longer any such person as Donna R. Egelhoff, wife. See Appendix, infra. And the statute adds that in such instance the funds would be paid to the children, who themselves are potential pension plan beneficiaries. The Court's "direct conflict" conclusion rests upon its claim that "administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents." Ante, at 147. But the Court cannot mean "identified anywhere in the plan documents," for the Egelhoff children were "identified" as recipients in the pension plan documents should the initial designation to "Donna R. Egelhoff wife" become invalid. And whether that initial designation became invalid upon divorce is a matter about which the plan documents are silent. To refer to state law to determine whether a given name makes a designation that is, or has become, invalid makes sense where background property or inheritance law is at issue, say, for example, where a written name is potentially ambiguous, where it is set forth near, but not in, the correct space, where it refers to a missing person perhaps presumed dead, where the name was written at a time the employee was incompetent, or where the name refers to an individual or entity disqualified by other law, say, the rule against perpetuities or rules prohibiting a murderer from benefiting from his crime. Why would Congress want the courts to create an ERISA-related federal property law to deal with such problems? Regardless, to refer to background state law in such circumstances does not directly conflict with any explicit ERISA provision, for no provision of ERISA forbids reading an instrument or document in light of state property law principles. In any event, in this case the plan documents *156 explicitly foresee that a beneficiary designation may become "invalid," but they do not specify the invalidating circumstances. To refer to state property law to fill in that blank cannot possibly create any direct conflict with the plan documents. The majority simply denies that there is any blank to fill in and suggests that the plan documents require the plan to pay the designated beneficiary under all circumstances. See ante, at 147-148, n. 1. But there is nonetheless an open question, namely, whether a designation that (here explicitly) refers to a wife remains valid after divorce. The question is genuine and important (unlike the imaginary example in the majority's footnote). The plan documents themselves do not answer the question any more than they describe what is to occur in a host of other special circumstances (e. g., mental incompetence, intoxication, ambiguous names, etc.). To determine whether ERISA permits state law to answer such questions requires a careful examination of the particular state law in light of ERISA's basic policies. See ante, at 147; infra this page and 157-159. We should not short circuit that necessary inquiry simply by announcing a "direct conflict" where none exists. The Court also complains that the Washington statute restricts the plan's choices to "two." Ante, at 150. But it is difficult to take this complaint seriously. After all, the two choices that Washington gives the plan are (1) to comply with Washington's rule or (2) not to comply with Washington's rule. What other choices could there be? A state statute that asks a plan to choose whether it intends to comply is not a statute that directly conflicts with a plan. Quite obviously, it is possible, not "`impossible,' " to comply with both the Washington statute and federal law. The more serious pre-emption question is whether this state statute "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' *157 " ). In answering that question, we must remember that petitioner has to overcome a strong presumption against pre-emption. That is because the Washington statute governs family property law—a "fiel[d] of traditional state regulation," where courts will not find federal preemption unless such was the "`clear and manifest purpose of Congress,' " 514 U. S., ), or the state statute does "`major damage' to `clear and substantial' federal interests," No one can seriously argue that Congress has clearly resolved the question before us. And the only damage to federal interests that the Court identifies consists of the added administrative burden the state statute imposes upon ERISA plan administrators. The Court claims that the Washington statute "interferes with nationally uniform plan administration" by requiring administrators to "familiarize themselves with state statutes." Ante, at 148-149. But administrators have to familiarize themselves with state law in any event when they answer such routine legal questions as whether amounts due are subject to garnishment, who is a "spouse," who qualifies as a "child," or when an employee is legally dead. And were that "familiarizing burden" somehow overwhelming, the plan could easily avoid it by resolving the divorce revocation issue in the plan documents themselves, stating expressly that state law does not apply. The "burden" thus reduces to a one-time requirement that would fall primarily upon the few who draft model ERISA documents, not upon the many who administer them. So meager a burden cannot justify pre-empting a state law that enjoys a presumption against pre-emption. *158 The Court also fears that administrators would have to make difficult choice-of-law determinations when parties live in different States. Ante, at 148-149. Whether this problem is or is not "major" in practice, the Washington statute resolves it by expressly setting forth procedures whereby the parties or the courts, not the plan administrator, are responsible for resolving it. See 11.07.010(3)(b)(i)—(ii) (stating that a plan may "without liability, refuse to pay or transfer a nonprobate asset" until "[a]ll beneficiaries and other interested persons claiming an interest have consented in writing to the payment or transfer" or "[t]he payment or transfer is authorized or directed by a court of proper jurisdiction"); 11.07.010(3)(c) (plan may condition payment on provision of security by recipient to indemnify plan for costs); 11.07.010(2)(b)(i) (plan may avoid default rule by expressing its intent in the plan documents). The Court has previously made clear that the fact that state law "impose[s] some burde[n] on the administration of ERISA plans" does not necessarily require pre-emption. De ; Precisely, what is it about this statute's requirement that distinguishes it from the "`myriad state laws' " that impose some kind of burden on ERISA plans? De (quoting ). Indeed, if one looks beyond administrative burden, one finds that Washington's statute poses no obstacle, but furthers ERISA's ultimate objective—developing a fair system for protecting employee benefits. Cf. Pension Benefit Guaranty 4 U.S. 717, The Washington statute transfers an employee's pension assets at death to those individuals whom the worker would likely have wanted to receive them. As many jurisdictions have concluded, divorced workers more often prefer that a child, rather than a divorced spouse, receive *159 those assets. Of course, an employee can secure this result by changing a beneficiary form; but doing so requires awareness, understanding, and time. That is why Washington and many other jurisdictions have created a statutory assumption that divorce works a revocation of a designation in favor of an ex-spouse. That assumption is embodied in the Uniform Probate Code; it is consistent with human experience; and those with expertise in the matter have concluded that it "more often" serves the cause of "[j]ustice." Langbein, The Nonprobate Revolution and the Future of the Law of Succession, In forbidding Washington to apply that assumption here, the Court permits a divorced wife, who already acquired, during the divorce proceeding, her fair share of the couple's community property, to receive in addition the benefits that the divorce court awarded to her former husband. To be more specific, Donna Egelhoff already received a business, an IRA account, and stock; David received, among other things, 100% of his pension benefits. App. 31-34. David did not change the beneficiary designation in the pension plan or life insurance plan during the 6-month period between his divorce and his death. As a result, Donna will now receive a windfall of approximately $80,000 at the expense of David's children. The State of Washington enacted a statute to prevent precisely this kind of unfair result. But the Court, relying on an inconsequential administrative burden, concludes that Congress required it. Finally, the logic of the Court's decision does not stop at divorce revocation laws. The Washington statute is virtually indistinguishable from other traditional state-law rules, for example, rules using presumptions to transfer assets in the case of simultaneous deaths, and rules that prohibit a husband who kills a wife from receiving benefits as a result of the wrongful death. It is particularly difficult to believe that Congress wanted to pre-empt the latter kind of statute. But how do these statutes differ from the one before us? *160 Slayer statutes—like this statute—"gover[n] the payment of benefits, a central matter of plan administration." Ante, at 148. And contrary to the Court's suggestion, ante, at 152, slayer statutes vary from State to State in their details just like divorce revocation statutes. Compare Ariz. Rev. Stat. Ann. 14-2803(F) ; Haw. Rev. Stat. 560:2-803(g) (99) with Ga. Code Ann. 53-1—5(d) (Supp. 96) (requiring proof under clear and convincing evidence standard); Me. Rev. Stat. Ann., Tit. 18—A, 2-803(e) (98) ; and Ala. Code 43-8—253(e) (91) (treating judgment of conviction as conclusive when it becomes final); Me. Rev. Stat. Ann., Tit. 18—A, 2-803(e) (98) with Ariz. Rev. Stat. Ann. 14-2803(F) ; Haw. Rev. Stat. 560:2— 803(g) (99) Indeed, the "slayer" conflict would seem more serious, not less serious, than the conflict before us, for few, if any, slayer statutes permit plans to opt out of the state property law rule. "ERISA pre-emption analysis," the Court has said, must "respect" the "separate spher[e]" of state "authority." Fort Halifax Packing (quoting (81)) (internal quotation marks omitted). In so stating, the Court has recognized the practical importance of preserving local independence, at retail, i. e., by applying pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute's language and purpose with federalism's need to preserve state autonomy. Indeed, in today's world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress' commerce power at its edges, United or to protect a State's treasury from a private damages action, Board of Trustees of Univ. of but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law, AT&T (99) In this case, "field pre-emption" is not at issue. There is no "direct" conflict between state and federal statutes. The state statute poses no significant obstacle to the accomplishment of any federal objective. Any effort to squeeze some additional pre-emptive force from ERISA's words (i. e., "relate to") is inconsistent with the Court's recent case law. And the state statute before us is one regarding family property—a "fiel[d] of traditional state regulation," where the interpretive presumption against pre-emption is particularly strong. 514 U. S., For these reasons, I disagree with the Court's conclusion. And, consequently, I dissent. APPENDIX TO OPINION OF BREYER, J.

Justice Sotomayor

majority

McLane Co. v. EEOC

2017-04-03

https://www.courtlistener.com/opinion/4380129/mclane-co-v-eeoc/

https://www.courtlistener.com/api/rest/v3/clusters/4380129/

Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute autho- rizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion. I A Title VII of the Civil Rights Act of 1964 prohibits em- ployment discrimination on the basis of “race, color, reli- gion, sex, or national origin.” §703(a), 78 Stat. 255, 42 U.S. C. §2000e–2(a). The statute entrusts the enforce- ment of that prohibition to the EEOC. See §2000e–5(a); EEOC v. Shell Oil Co., 466 U.S. 54, 61–62 (1984). The EEOC’s responsibilities “are triggered by the filing of a specific sworn charge of discrimination,” University of Pa. 2 MCLANE CO. v. EEOC Opinion of the Court v. EEOC, 493 U.S. 182, 190 (1990), which can be filed either by the person alleging discrimination or by the EEOC itself, see §2000e–5(b). When it receives a charge, the EEOC must first notify the employer, ibid., and must then investigate “to determine whether there is reasonable cause to believe that the charge is true,” University of Pa., 493 U.S., at 190 (internal quotation marks omitted). This case is about one of the tools the EEOC has at its disposal in conducting its investigation: a subpoena. In order “[t]o enable the [EEOC] to make informed decisions at each stage of the enforcement process,” Title VII “con- fers a broad right of access to relevant evidence.” Id., at 191. It provides that the EEOC “shall . . . have access to, for the purposes of examination, . . . any evidence of any person being investigated or proceeded against that re- lates to unlawful employment practices covered by” Title VII and “is relevant to the charge under investigation.” 42 U.S. C. §2000e–8(a). And the statute enables the EEOC to obtain that evidence by “authoriz[ing] [it] to issue a subpoena and to seek an order enforcing [the subpoena].” University of Pa., 493 U.S., at 191; see §2000e–9.1 Under that authority, the EEOC may issue “subp[o]enas requir- ing the attendance and testimony of witnesses or the production of any evidence.” 29 U.S. C. §161(1). An employer may petition the EEOC to revoke the subpoena, see ibid., but if the EEOC rejects the petition and the employer still “refuse[s] to obey [the] subp[o]ena,” the EEOC may ask a district court to issue an order enforcing it, see §161(2). A district court’s role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward —————— 1 The statute does so by conferring on the EEOC the same authority given to the National Labor Relations Board to conduct investigations. See 42 U.S. C. §2000e–9 (“For the purpose of all . . . investigations conducted by the Commission . . . section 161 of title 29 shall apply”). Cite as: 581 U. S. ____ (2017) 3 Opinion of the Court one. See University of Pa., 493 U.S., at 191; Shell Oil, 466 U.S., at 72, n. 26. A district court is not to use an en- forcement proceeding as an opportunity to test the strength of the underlying complaint. Ibid. Rather, a district court should “ ‘satisfy itself that the charge is valid and that the material requested is “relevant” to the charge.’ ” University of Pa., 493 U.S., at 191. It should do so cognizant of the “generou[s]” construction that courts have given the term “relevant.” Shell Oil, 466 U.S., at 68–69 (“virtually any material that might cast light on the allegations against the employer”). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer estab- lishes that the subpoena is “too indefinite,” has been is- sued for an “illegitimate purpose,” or is unduly burden- some. Id., at 72, n. 26. See United States v. Morton Salt Co., 338 U.S. 632, 652–653 (1950) (“The gist of the protec- tion is in the requirement . . . that the disclosure sought shall not be unreasonable” (internal quotation marks omitted)). B This case arises out of a Title VII suit filed by a woman named Damiana Ochoa. Ochoa worked for eight years as a “cigarette selector” for petitioner McLane Co., a supply- chain services company. According to McLane, the job is a demanding one: Cigarette selectors work in distribution centers, where they are required to lift, pack, and move large bins containing products. McLane requires employ- ees taking physically demanding jobs—both new employ- ees and employees returning from medical leave—to take a physical evaluation. According to McLane, the evalua- tion “tests . . . range of motion, resistance, and speed” and “is designed, administered, and validated by a third party.” Brief for Petitioner 6. In 2007, Ochoa took three months of maternity leave. When she attempted to return 4 MCLANE CO. v. EEOC Opinion of the Court to work, McLane asked her to take the evaluation. Ochoa attempted to pass the evaluation three times, but failed. McLane fired her. Ochoa filed a charge of discrimination, alleging (among other things) that she had been fired on the basis of her gender. The EEOC began an investigation, and—at its request—McLane provided it with basic information about the evaluation, as well as a list of anonymous employees that McLane had asked to take the evaluation. McLane’s list included each employee’s gender, role at the company, and evaluation score, as well as the reason each employee had been asked to take the evaluation. But the company refused to provide what the parties call “pedigree infor- mation”: the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the evaluation. Upon learning that McLane used the evaluation nationwide, the EEOC expanded the scope of its investigation, both geographi- cally (to focus on McLane’s nationwide operations) and sub- stantively (to investigate whether McLane had discrimi- nated against its employees on the basis of age). It issued subpoenas requesting pedigree information as it related to its new investigation. But McLane refused to provide the pedigree information, and so the EEOC filed two actions in Federal District Court—one arising out of Ochoa’s charge and one arising out of a separate age- discrimination charge the EEOC itself had filed—seeking enforcement of its subpoenas. The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought the pedigree information. See EEOC v. McLane Co., 2012 WL 1132758, *5 (D Ariz., Apr. 4, 2012) (age discrimination charge); Civ. No. 12–2469 (D Ariz., Nov. 19, 2012), App. to Pet. for Cert. Cite as: 581 U. S. ____ (2017) 5 Opinion of the Court 28–30 (Title VII charge).2 In the District Court’s view, the pedigree information was not “relevant” to the charges because “ ‘an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of . . . dis- crimination.’ ” App. to Pet. for Cert. 29 (quoting 2012 WL 1132758, at *5; some internal quotation marks omitted). The Ninth Circuit reversed. See 804 F.3d 1051 (2015). Consistent with Circuit precedent, the panel reviewed the District Court’s decision to quash the subpoena de novo, and concluded that the District Court had erred in finding the pedigree information irrelevant. Id., at 1057. But the panel questioned in a footnote why de novo review applied, observing that its sister Circuits “appear[ed] to review issues related to enforcement of administrative subpoenas for abuse of discretion.” Id., at 1056, n. 3; see infra, at 7 (reviewing Court of Appeals authority). This Court granted certiorari to resolve the disagree- ment between the Courts of Appeals over the appropriate standard of review for the decision whether to enforce an EEOC subpoena. 579 U. S. ___ (2016). Because the United States agrees with McLane that such a decision should be reviewed for abuse of discretion, Stephen B. Kinnard was appointed as amicus curiae to defend the judgment below. 580 U. S. ___ (2016). He has ably discharged his duties. —————— 2 The District Court also refused to enforce the subpoena to the extent that it sought a second category of evidence: information about when and why those employees who had been fired after taking the test had been fired. The District Court provided no explanation for not enforc- ing the subpoena to the extent it sought this information, and the Court of Appeals reversed on that ground. 804 F.3d 1051, 1059 (CA9 2015). McLane does not challenge this aspect of the Court of Appeals’ decision. See Tr. of Oral Arg. 8. 6 MCLANE CO. v. EEOC Opinion of the Court II A When considering whether a district court’s decision should be subject to searching or deferential appellate review—at least absent “explicit statutory command”—we traditionally look to two factors. Pierce v. Underwood, 487 U.S. 552, 558 (1988). First, we ask whether the “history of appellate practice” yields an answer. Ibid. Second, at least where “neither a clear statutory prescription nor a historical tradition exists,” we ask whether, “ ‘as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in ques- tion.’ ” Id., at 558, 559–560 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)). Both factors point toward abuse-of- discretion review here. First, the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion. That practice predates even Title VII itself. As noted, Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Rela- tions Board (NLRB). See n. 1, supra. During the three decades between the enactment of the NLRA and the incorporation of the NLRA’s subpoena-enforcement provi- sions into Title VII, every Circuit to consider the question had held that a district court’s decision whether to enforce an NLRB subpoena should be reviewed for abuse of discre- tion. See NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419–420 (CA2 1968); NLRB v. Friedman, 352 F.2d 545, 547 (CA3 1965); NLRB v. Northern Trust Co., 148 F.2d 24, 29 (CA7 1945); Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 453–454 (CA6 1941). By the time Congress amended Title VII to authorize EEOC subpoenas in 1972, it did so against this uniform backdrop of deferen- tial appellate review. Cite as: 581 U. S. ____ (2017) 7 Opinion of the Court Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court’s decision as to whether to enforce an EEOC subpoena. Almost every Court of Appeals reviews such a decision for abuse of discretion. See, e.g., EEOC v. Kronos Inc., 620 F.3d 287, 295–296 (CA3 2010); EEOC v. Randstad, 685 F.3d 433, 442 (CA4 2012); EEOC v. Roadway Express, Inc., 261 F.3d 634, 638 (CA6 2001); EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (CA7 2002); EEOC v. Technocrest Sys- tems, Inc., 448 F.3d 1035, 1038 (CA8 2006); EEOC v. Dillon Companies, Inc., 310 F.3d 1271, 1274 (CA10 2002); EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 760 (CA11 2014) (per curiam). As Judge Watford—writing for the panel below—recognized, the Ninth Circuit alone applies a more searching form of review. See 804 F.3d, at 1056, n. 3 (“Why we review questions of relevance and undue burden de novo is unclear”); see also EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445–446 (CA9 1988) (holding that de novo review applies). To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise. But the “long his- tory of appellate practice” here, Pierce, 487 U.S., at 558, carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on “a neat set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232 (1983), but instead on the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization,” Pierce, 487 U.S., at 561–562 (internal quotation marks omitted). In the mine run of cases, the district court’s decision whether to enforce a subpoena will turn either on whether the evi- dence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district 8 MCLANE CO. v. EEOC Opinion of the Court judge’s expertise. The decision whether evidence sought is relevant requires the district court to evaluate the rela- tionship between the particular materials sought and the particular matter under investigation—an analysis “vari- able in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). Similarly, the decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. These inquiries are “generally not amenable to broad per se rules,” Sprint/United Manage- ment Co. v. Mendelsohn, 552 U.S. 379, 387 (2008); rather, they are the kind of “fact-intensive, close calls” better suited to resolution by the district court than the court of appeals, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990) (internal quotation marks omitted).3 Other functional considerations also show that abuse-of- discretion review is appropriate here. For one, district courts have considerable experience in other contexts making decisions similar—though not identical—to those they must make in this one. See Buford v. United States, 532 U.S. 59, 66 (2001) (“[T]he comparatively greater expertise” of the district court may counsel in favor of deferential review). District courts decide, for instance, whether evidence is relevant at trial, Fed. Rule Evid. 401; whether pretrial criminal subpoenas are unreasonable in —————— 3 To be sure, there are pure questions of law embedded in a district court’s decision to enforce or quash a subpoena. Whether a charge is “valid,” EEOC v. Shell Oil Co., 466 U.S. 54, 72, n. 26 (1984)—that is, legally sufficient—is a pure question of law. And the question whether a district court employed the correct standard of relevance, see id., at 68–69—as opposed to how it applied that standard to the facts of a given case—is a question of law. But “applying a unitary abuse-of- discretion standard” does not shelter a district court that makes an error of law, because “[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403, 405 (1990). Cite as: 581 U. S. ____ (2017) 9 Opinion of the Court scope, Fed. Rule Crim. Proc. 16(c)(2); and more. These decisions are not the same as the decisions a district court must make in enforcing an administrative subpoena. But they are similar enough to give the district court the “in- stitutional advantag[e],” Buford, 532 U.S., at 64, that comes with greater experience. For another, as we noted in Cooter & Gell, deferential review “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” 496 U.S., at 404—a particularly important consideration in a “satel- lite” proceeding like this one, ibid., designed only to facili- tate the EEOC’s investigation. B Amicus’ arguments to the contrary have aided our con- sideration of this case. But they do not persuade us that de novo review is appropriate. Amicus’ central argument is that the decision whether a subpoena should be enforced does not require the exercise of discretion on the part of the district court, and so it should not be reviewed for abuse of discretion. On amicus’ view, the district court’s primary role is to test the legal sufficiency of the subpoena, not to weigh whether it should be enforced as a substantive matter. Cf. Shell Oil, 466 U.S., at 72, n. 26 (rejecting the argument that the district court should assess the validity of the underlying claim in a proceeding to enforce a subpoena). Even accepting amicus’ view of the district court’s task, however, this understanding of abuse-of-discretion review is too narrow. As commentators have observed, abuse-of-discretion re- view is employed not only where a decisionmaker has “a wide range of choice as to what he decides, free from the constraints which characteristically attach whenever legal rules enter the decision[making] process”; it is also em- ployed where the trial judge’s decision is given “an unu- 10 MCLANE CO. v. EEOC Opinion of the Court sual amount of insulation from appellate revision” for func- tional reasons. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971); see also 22 C. Wright & K. Graham, Federal Prac- tice and Procedure §5166.1 (2d ed. 2012). And as we have explained, it is in large part due to functional concerns that we conclude the district court’s decision should be reviewed for abuse of discretion. Even if the district court’s decision can be characterized in the way that ami- cus suggests, that characterization would not be incon- sistent with abuse-of-discretion review. Nor are we persuaded by amicus’ remaining arguments. Amicus argues that affording deferential review to a dis- trict court’s decision would clash with Court of Appeals decisions instructing district courts to defer themselves to the EEOC’s determination that evidence is relevant to the charge at issue. See Director, Office of Thrift Supervision, v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (CADC 1997) (district courts should defer to agency appraisals of relevance unless they are “obviously wrong”); EEOC v. Lockheed Martin Corp., Aero & Naval Systems, 116 F.3d 110, 113 (CA4 1997) (same). In amicus’ view, it is “analyt- ically impossible” for the court of appeals to defer to the district court if the district court must itself defer to the agency. Tr. of Oral Arg. 29. We think the better reading of those cases is that they rest on the established rule that the term “relevant” be understood “generously” to permit the EEOC “access to virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U.S., at 68–69. A district court deciding whether evidence is “relevant” under Title VII need not defer to the EEOC’s decision on that score; it must simply answer the question cognizant of the agency’s broad authority to seek and obtain evidence. Because the statute does not set up any scheme of double deference, amicus’ arguments as to the infirmities of such a scheme are misplaced. Cite as: 581 U. S. ____ (2017) 11 Opinion of the Court Nor do we agree that, as amicus suggests, the constitu- tional underpinnings of the Shell Oil standard require a different result. To be sure, we have described a subpoena as a “ ‘constructive’ search,” Oklahoma Press, 327 U.S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be “too indefinite,” Morton Salt, 338 U.S., at 652. But not every decision that touches on the Fourth Amendment is subject to searching review. Subpoenas in a wide variety of other contexts also implicate the privacy interests protected by the Fourth Amendment, but courts routinely review the enforcement of such subpoenas for abuse of discretion. See, e.g., United States v. Nixon, 418 U.S. 683, 702 (1974) (pretrial subpoenas duces tecum); In re Grand Jury Sub- poena, 696 F.3d 428, 432 (CA5 2012) (grand jury subpoe- nas); In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (CA10 2010) (same). And this Court has emphasized that courts should pay “great deference” to a magistrate judge’s determination of probable cause, Gates, 462 U.S., at 236 (internal quotation marks omitted)—a decision more akin to a district court’s preenforcement review of a subpoena than the warrantless searches and seizures we considered in Ornelas v. United States, 517 U.S. 690 (1996), on which amicus places great weight. The constitutional pedigree of Shell Oil does not change our view of the correct standard of review. III For these reasons, a district court’s decision to enforce an EEOC subpoena should be reviewed for abuse of discre- tion, not de novo. The United States also argues that the judgment below can be affirmed because it is clear that the District Court abused its discretion. But “we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005), and the Court of Appeals has not had the chance to 12 MCLANE CO. v. EEOC Opinion of the Court review the District Court’s decision under the appropriate standard. That task is for the Court of Appeals in the first instance. As part of its analysis, the Court of Appeals may also consider, as and to the extent it deems appropriate, any arguments made by McLane regarding the burdens imposed by the subpoena. The judgment of the Court of Appeals is hereby vacated, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered. Cite as: 581 U. S. ____ (2017) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1248 _________________ MCLANE COMPANY, INC., PETITIONER v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [April 3, 2017] JUSTICE GINSBURG, concurring in part and dissenting in part. While I agree with the Court that “abuse of discretion” is generally the proper review standard for district court decisions reviewing agency subpoenas, I would neverthe- less affirm the Ninth Circuit’s judgment in this case. As the Court of Appeals explained, the District Court’s re- fusal to enforce the Equal Employment Opportunity Commission’s (EEOC) subpoena for pedigree information rested on a legal error. Lower court resolution of a ques- tion of law is ordinarily reviewable de novo on appeal. Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___, ___, and n. 2 (2014) (slip op., at 4, and n. 2). According to the District Court, it was not yet “nec- essary [for the EEOC] to seek such information.” 2012 WL 5868959, *6 (D Ariz., Nov. 19, 2012). As the Ninth Circuit correctly conveyed, however: “The EEOC does not have to show a ‘particularized necessity of access, beyond a show- ing of mere relevance,’ to obtain evidence.” 804 F.3d 1051, 1057 (2015) (quoting University of Pa. v. EEOC, 493 U.S. 182, 188 (1990)). Because the District Court erred as a matter of law in demanding that the EEOC show more than relevance in order to gain enforcement of its sub- poena, I would not disturb the Court of Appeals’ judgment

Title VII of the Civil Rights Act of 964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute autho- rizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion. I A Title VII of the Civil Rights Act of 964 prohibits em- ployment discrimination on the basis of “race, color, reli- gion, sex, or national origin.” 42 U.S. C. The statute entrusts the enforce- ment of that prohibition to the EEOC. See The EEOC’s responsibilities “are triggered by the filing of a specific sworn charge of discrimination,” University of 2 MCLANE CO. v. EEOC Opinion of the Court v. EEOC, which can be filed either by the person alleging discrimination or by the EEOC itself, see When it receives a charge, the EEOC must first notify the employer, ib and must then investigate “to determine whether there is reasonable cause to believe that the charge is true,” University of 493 U.S., at This case is about one of the tools the EEOC has at its disposal in conducting its investigation: a subpoena. In order “[t]o enable the [EEOC] to make informed decisions at each stage of the enforcement process,” Title VII “con- fers a broad right of access to relevant evidence.” at 9. It provides that the EEOC “shall have access to, for the purposes of examination, any evidence of any person being investigated or proceeded against that re- lates to unlawful employment practices covered by” Title VII and “is relevant to the charge under investigation.” 42 U.S. C. And the statute enables the EEOC to obtain that evidence by “authoriz[ing] [it] to issue a subpoena and to seek an order enforcing [the subpoena].” University of ; see Under that authority, the EEOC may issue “subp[o]enas requir- ing the attendance and testimony of witnesses or the production of any evidence.” 29 U.S. C. An employer may petition the EEOC to revoke the subpoena, see ib but if the EEOC rejects the petition and the employer still “refuse[s] to obey [the] subp[o]ena,” the EEOC may ask a district court to issue an order enforcing it, see A district court’s role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward —————— The statute does so by conferring on the EEOC the same authority given to the National Labor Relations Board to conduct investigations. See 42 U.S. C. (“For the purpose of all investigations conducted by the Commission section 6 of title 29 shall apply”). Cite as: 58 U. S. (207) 3 Opinion of the Court one. See University of ; Shell 4 U.S., A district court is not to use an en- forcement proceeding as an opportunity to test the strength of the underlying complaint. Rather, a district court should “ ‘satisfy itself that the charge is valid and that the material requested is “relevant” to the charge.’ ” University of It should do so cognizant of the “generou[s]” construction that courts have given the term “relevant.” Shell 4 U.S., at 68–69 (“virtually any material that might cast light on the allegations against the employer”). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer estab- lishes that the subpoena is “too indefinite,” has been is- sued for an “illegitimate purpose,” or is unduly burden- some. See United (“The gist of the protec- tion is in the requirement that the disclosure sought shall not be unreasonable” (internal quotation marks omitted)). B This case arises out of a Title VII suit filed by a woman named Damiana Ochoa. Ochoa worked for eight years as a “cigarette selector” for petitioner McLane Co., a supply- chain services company. According to McLane, the job is a demanding one: Cigarette selectors work in distribution centers, where they are required to lift, pack, and move large bins containing products. McLane requires employ- ees taking physically demanding jobs—both new employ- ees and employees returning from medical leave—to take a physical evaluation. According to McLane, the evalua- tion “tests range of motion, resistance, and speed” and “is designed, administered, and validated by a third party.” Brief for Petitioner 6. In 2007, Ochoa took three months of maternity leave. When she attempted to return 4 MCLANE CO. v. EEOC Opinion of the Court to work, McLane asked her to take the evaluation. Ochoa attempted to pass the evaluation three times, but failed. McLane fired her. Ochoa filed a charge of discrimination, alleging (among other things) that she had been fired on the basis of her gender. The EEOC began an investigation, and—at its request—McLane provided it with basic information about the evaluation, as well as a list of anonymous employees that McLane had asked to take the evaluation. McLane’s list included each employee’s gender, role at the company, and evaluation score, as well as the reason each employee had been asked to take the evaluation. But the company refused to provide what the parties call “pedigree infor- mation”: the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the evaluation. Upon learning that McLane used the evaluation nationwide, the EEOC expanded the scope of its investigation, both geographi- cally (to focus on McLane’s nationwide operations) and sub- stantively (to investigate whether McLane had discrimi- nated against its employees on the basis of age). It issued subpoenas requesting pedigree information as it related to its new investigation. But McLane refused to provide the pedigree information, and so the EEOC filed two actions in Federal District Court—one arising out of Ochoa’s charge and one arising out of a separate age- discrimination charge the EEOC itself had filed—seeking enforcement of its subpoenas. The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought the pedigree information. See *5 (D Ariz., Apr. 4, 202) (age discrimination charge); Civ. No. 2–2469 (D Ariz., Nov. 9, 202), App. to Pet. for Cert. Cite as: 58 U. S. (207) 5 Opinion of the Court 28–30 (Title VII charge).2 In the District Court’s view, the pedigree information was not “relevant” to the charges because “ ‘an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of dis- crimination.’ ” App. to Pet. for Cert. 29 (quoting 202 WL 32758, at *5; some internal quotation marks omitted). The Ninth Circuit reversed. See Consistent with Circuit precedent, the panel reviewed the District Court’s decision to quash the subpoena de novo, and concluded that the District Court had erred in finding the pedigree information irrelevant. But the panel questioned in a footnote why de novo review applied, observing that its sister Circuits “appear[ed] to review issues related to enforcement of administrative subpoenas for abuse of discretion.” ; see infra, at 7 (reviewing Court of Appeals authority). This Court granted certiorari to resolve the disagree- ment between the Courts of Appeals over the appropriate standard of review for the decision whether to enforce an EEOC subpoena. 579 U. S. (206). Because the United States agrees with McLane that such a decision should be reviewed for abuse of discretion, Stephen B. Kinnard was appointed as amicus curiae to defend the judgment below. 580 U. S. (206). He has ably discharged his duties. —————— 2 The District Court also refused to enforce the subpoena to the extent that it sought a second category of evidence: information about when and why those employees who had been fired after taking the test had been fired. The District Court provided no explanation for not enforc- ing the subpoena to the extent it sought this information, and the Court of Appeals reversed on that ground. McLane does not challenge this aspect of the Court of Appeals’ decision. See Tr. of Oral Arg. 8. 6 MCLANE CO. v. EEOC Opinion of the Court II A When considering whether a district court’s decision should be subject to searching or deferential appellate review—at least absent “explicit statutory command”—we traditionally look to two factors. v. Underwood, 487 U.S. 552, 558 (988). First, we ask whether the “history of appellate practice” yields an answer. Second, at least where “neither a clear statutory prescription nor a historical tradition exists,” we ask whether, “ ‘as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in ques- tion.’ ” 559–560 (quoting Miller v. Fenton, 474 U.S. 04, 4 (985)). Both factors point toward abuse-of- discretion review here. First, the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion. That practice predates even Title VII itself. As noted, Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Rela- tions Board (NLRB). See n. During the three decades between the enactment of the NLRA and the incorporation of the NLRA’s subpoena-enforcement provi- sions into Title VII, every Circuit to consider the question had held that a district court’s decision whether to enforce an NLRB subpoena should be reviewed for abuse of discre- tion. See NLRB v. Consolidated Vacuum Corp., 395 F.2d 46, 49–420 (CA2 968); NLRB v. Friedman, 352 F.2d 545, 547 (CA3 965); NLRB v. Northern Trust Co., 48 F.2d 24, 29 (CA7 945); Goodyear Tire & Rubber Co. v. NLRB, 22 F.2d 450, (CA6 94). By the time Congress amended Title VII to authorize EEOC subpoenas in 972, it did so against this uniform backdrop of deferen- tial appellate review. Cite as: 58 U. S. (207) 7 Opinion of the Court Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court’s decision as to whether to enforce an EEOC subpoena. Almost every Court of Appeals reviews such a decision for abuse of discretion. See, e.g., 295–296 (CA3 200); 442 (CA4 202); EEOC v. Roadway Express, Inc., 26 F.3d 634, 638 (CA6 200); ; 448 F.3d 035, 038 ; EEOC v. Dillon Companies, Inc., 30 F.3d 27, 274 ; 77 F.3d 757, 760 (CA 204) (per curiam). As Judge Watford—writing for the panel below—recognized, the Ninth Circuit alone applies a more searching form of review. See 804 F.3d, at 056, n. 3 (“Why we review questions of relevance and undue burden de novo is unclear”); see also (CA9 988) (holding that de novo review applies). To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise. But the “long his- tory of appellate practice” here, 487 U.S., carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on “a neat set of legal rules,” 462 U.S. 23, (983), but instead on the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization,” 487 U.S., at 56–562 In the mine run of cases, the district court’s decision whether to enforce a subpoena will turn either on whether the evi- dence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district 8 MCLANE CO. v. EEOC Opinion of the Court judge’s expertise. The decision whether evidence sought is relevant requires the district court to evaluate the rela- tionship between the particular materials sought and the particular matter under investigation—an analysis “vari- able in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 86, 209 (946). Similarly, the decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. These inquiries are “generally not amenable to broad per se rules,” Sprint/United Manage- ment ; rather, they are the kind of “fact-intensive, close calls” better suited to resolution by the district court than the court of appeals, Cooter & 4043 Other functional considerations also show that abuse-of- discretion review is appropriate here. For one, district courts have considerable experience in other contexts making decisions similar—though not identical—to those they must make in this one. See (200) (“[T]he comparatively greater expertise” of the district court may counsel in favor of deferential review). District courts decide, for instance, whether evidence is relevant at trial, Fed. Rule Evid. 40; whether pretrial criminal subpoenas are unreasonable in —————— 3 To be sure, there are pure questions of law embedded in a district court’s decision to enforce or quash a subpoena. Whether a charge is “valid,” —that is, legally sufficient—is a pure question of law. And the question whether a district court employed the correct standard of relevance, see at 68–69—as opposed to how it applied that standard to the facts of a given case—is a question of law. But “applying a unitary abuse-of- discretion standard” does not shelter a district court that makes an error of law, because “[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” Cooter & Cite as: 58 U. S. (207) 9 Opinion of the Court scope, Fed. Rule Crim. Proc. 6(c)(2); and more. These decisions are not the same as the decisions a district court must make in enforcing an administrative subpoena. But they are similar enough to give the district court the “in- stitutional advantag[e],” that comes with greater experience. For another, as we noted in Cooter & Gell, deferential review “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” 496 U.S., at 404—a particularly important consideration in a “satel- lite” proceeding like this one, ib designed only to facili- tate the EEOC’s investigation. B Amicus’ arguments to the contrary have aided our con- sideration of this case. But they do not persuade us that de novo review is appropriate. Amicus’ central argument is that the decision whether a subpoena should be enforced does not require the exercise of discretion on the part of the district court, and so it should not be reviewed for abuse of discretion. On amicus’ view, the district court’s primary role is to test the legal sufficiency of the subpoena, not to weigh whether it should be enforced as a substantive matter. Cf. Shell 4 U.S., (rejecting the argument that the district court should assess the validity of the underlying claim in a proceeding to enforce a subpoena). Even accepting amicus’ view of the district court’s task, however, this understanding of abuse-of-discretion review is too narrow. As commentators have observed, abuse-of-discretion re- view is employed not only where a decisionmaker has “a wide range of choice as to what he decides, free from the constraints which characteristically attach whenever legal rules enter the decision[making] process”; it is also em- ployed where the trial judge’s decision is given “an unu- 0 MCLANE CO. v. EEOC Opinion of the Court sual amount of insulation from appellate revision” for func- tional reasons. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, (97); see also 22 C. Wright & K. Graham, Federal Prac- tice and Procedure §5. (2d ed. 202). And as we have explained, it is in large part due to functional concerns that we conclude the district court’s decision should be reviewed for abuse of discretion. Even if the district court’s decision can be characterized in the way that ami- cus suggests, that characterization would not be incon- sistent with abuse-of-discretion review. Nor are we persuaded by amicus’ remaining arguments. Amicus argues that affording deferential review to a dis- trict court’s decision would clash with Court of Appeals decisions instructing district courts to defer themselves to the EEOC’s determination that evidence is relevant to the charge at issue. See Director, Office of Thrift Supervision, v. Vinson & Elkins, LLP, 24 F.3d 304, 307 (CADC 997) (district courts should defer to agency appraisals of relevance unless they are “obviously wrong”); EEOC v. Lockheed Martin Corp., Aero & Naval Systems, 6 F.3d 0, 3 (CA4 997) (same). In amicus’ view, it is “analyt- ically impossible” for the court of appeals to defer to the district court if the district court must itself defer to the agency. Tr. of Oral Arg. 29. We think the better reading of those cases is that they rest on the established rule that the term “relevant” be understood “generously” to permit the EEOC “access to virtually any material that might cast light on the allegations against the employer.” Shell 4 U.S., at 68–69. A district court deciding whether evidence is “relevant” under Title VII need not defer to the EEOC’s decision on that score; it must simply answer the question cognizant of the agency’s broad authority to seek and obtain evidence. Because the statute does not set up any scheme of double deference, amicus’ arguments as to the infirmities of such a scheme are misplaced. Cite as: 58 U. S. (207) Opinion of the Court Nor do we agree that, as amicus suggests, the constitu- tional underpinnings of the Shell standard require a different result. To be sure, we have described a subpoena as a “ ‘constructive’ search,” Oklahoma Press, 327 U.S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be “too indefinite,” Morton But not every decision that touches on the Fourth Amendment is subject to searching review. Subpoenas in a wide variety of other contexts also implicate the privacy interests protected by the Fourth Amendment, but courts routinely review the enforcement of such subpoenas for abuse of discretion. See, e.g., United 48 U.S. 683, (974) (pretrial subpoenas duces tecum); In re Grand Jury Sub- poena, (CA5 202) (grand jury subpoe- nas); In re Grand Jury Proceedings, F.3d 86, 20 (CA0 200) (same). And this Court has emphasized that courts should pay “great deference” to a magistrate judge’s determination of probable cause, —a decision more akin to a district court’s preenforcement review of a subpoena than the warrantless searches and seizures we considered in 57 U.S. 690 (996), on which amicus places great weight. The constitutional pedigree of Shell does not change our view of the correct standard of review. III For these reasons, a district court’s decision to enforce an EEOC subpoena should be reviewed for abuse of discre- tion, not de novo. The United States also argues that the judgment below can be affirmed because it is clear that the District Court abused its discretion. But “we are a court of review, not of first view,” 78, n. 7 (2005), and the Court of Appeals has not had the chance to 2 MCLANE CO. v. EEOC Opinion of the Court review the District Court’s decision under the appropriate standard. That task is for the Court of Appeals in the first instance. As part of its analysis, the Court of Appeals may also consider, as and to the extent it deems appropriate, any arguments made by McLane regarding the burdens imposed by the subpoena. The judgment of the Court of Appeals is hereby vacated, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered. Cite as: 58 U. S. (207) Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 5–248 MCLANE COMPANY, INC., PETITIONER v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [April 3, 207] JUSTICE GINSBURG, concurring in part and dissenting in part. While I agree with the Court that “abuse of discretion” is generally the proper review standard for district court decisions reviewing agency subpoenas, I would neverthe- less affirm the Ninth Circuit’s judgment in this case. As the Court of Appeals explained, the District Court’s re- fusal to enforce the Equal Employment Opportunity Commission’s (EEOC) subpoena for pedigree information rested on a legal error. Lower court resolution of a ques- tion of law is ordinarily reviewable de novo on appeal. Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. and n. 2 (204) (slip op., at 4, and n. 2). According to the District Court, it was not yet “nec- essary [for the EEOC] to seek such information.” 202 WL 5868959, *6 (D Ariz., Nov. 9, 202). As the Ninth Circuit correctly conveyed, however: “The EEOC does not have to show a ‘particularized necessity of access, beyond a show- ing of mere relevance,’ to obtain evidence.” 804 F.3d 05, 057 ). Because the District Court erred as a matter of law in demanding that the EEOC show more than relevance in order to gain enforcement of its sub- poena, I would not disturb the Court of Appeals’ judgment

Justice Breyer

majority

Barber v. Thomas

2010-06-07

https://www.courtlistener.com/opinion/147954/barber-v-thomas/

https://www.courtlistener.com/api/rest/v3/clusters/147954/

2009-064

Federal sentencing law permits federal prison authori ties to award prisoners credit against prison time as a reward for good behavior. 18 U.S. C. §3624(b). Petition ers, two federal prisoners, challenge the method that the Federal Bureau of Prisons uses for calculating this “good time credit.” We conclude that the Bureau’s method re flects the most natural reading of the statute, and we reject petitioners’ legal challenge. I A A federal sentencing statute provides: “[A] prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term . . . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.” §3624(b)(1). 2 BARBER v. THOMAS Opinion of the Court The Bureau of Prisons (BOP) applies this statute using a methodology that petitioners in this case challenge as unlawful. In order to explain the BOP method, we shall use a simplified example that captures its essential ele ments. The unsimplified calculations described by the BOP in its policy statement, see App. 96–100, will reach approximately the same results as, and are essentially the mathematical equivalent of, the simplified system we describe (there may be other ways to describe the calcula tion as well). To the extent that there are any differences between the methodology employed by the BOP and that reflected in our example, they are of no consequence to the resolution of petitioners’ challenge and are therefore not before us. Similarly, although petitioners committed their crimes before the current version of §3624 was enacted and are therefore subject to a previous version that dif fered slightly in certain details, see 18 U.S. C. §3624 (1988 ed.), the differences between the two versions are immaterial to the questions presented by this case. The parties refer to the current version as the relevant provi sion of law, see Brief for Petitioners 2–3; Brief for Respon dent 8, n. 2, and we shall do the same. In our example we shall imagine a prisoner who has received a sentence of 10 years’ imprisonment. We shall assume that his behavior throughout his confinement is exemplary and that prison authorities will consequently consider him to merit the maximum good time credit that the statute will allow. And we shall ignore leap years. Thus, at the end of the first year (Year 1) that prisoner would earn the statute’s maximum credit of 54 days. The relevant official (whom we shall call the “good time calcu lator”) would note that fact and, in effect, preliminarily put the 54 days to the side. At the end of Year 2 the pris oner would earn an additional 54 days of good time credit. The good time calculator would add this 54 days to the first 54 days, note the provisional total of 108 days, and Cite as: 560 U. S. ____ (2010) 3 Opinion of the Court again put the 108 days’ credit to the side. By the end of Year 8, the prisoner would have earned a total of 432 days of good time credit (8 years times 54 days). At that time, the good time calculator would note that the difference between the time remaining in the sentence (2 years, or 730 days) and the amount of accumulated good time credit (432 days) is less than 1 year (730 minus 432 equals 298 days, which is less than 365). The 432 days of good time credit that the prisoner has earned by the end of Year 8 are sufficient to wipe out all of the last year of the 10-year prison term and to shorten the prisoner’s 9th year of im prisonment by 67 days. Year 9 of the sentence will consequently become the prisoner’s last year of imprisonment. Further, because the prisoner has already earned 67 days of credit against that year (432 days already earned minus 365 days applied to Year 10 leaves 67 days to apply to Year 9), the prisoner will have no more than 298 days left to serve in Year 9. Now the good time calculator will have to work out just how much good time the prisoner can earn, and credit against, these remaining 298 days. As we said, the statute provides that “good time” for this “last year or portion” thereof shall be “prorated.” Thus, the good time calculator must divide the 298 days into two parts: (1) days that the prisoner will have to serve in prison, and (2) credit for good behavior the prisoner will earn during the days served in Year 9. In other words, the number of days to be served in Year 9 plus the number of good time credit days earned will be equal to the number of days left in the sentence, namely, 298. And to keep the award of credit in the last year proportional to awards in other years, the ratio of these two parts of Year 9 (i.e., the number of good time days divided by the number of days served) must be 54/365, the same ratio that the BOP applies to full years served. We can use some elementary algebra, described in the Appendix, infra, to work out the 4 BARBER v. THOMAS Opinion of the Court rest. The result is that if the prisoner serves 260 days, he can earn an additional 38 days of credit for good behavior. That is to say, of the 298 days remaining in his sentence, the prisoner will have to serve 260 days in confinement, after which point, his sentence will be fully accounted for (given the additional 38 days’ credit earned), and he will be released. In sum, a prisoner subject to a 10-year (3,650-day) sentence who earns the maximum number of days the statute permits will serve 3,180 days in confine ment and receive 470 days of “good time” credit, about 15% of the prison time actually served. B In this case petitioners claim that the BOP’s calculation method is unlawful. They say that §3624(b)(1) (2006 ed.) requires a straightforward calculation based upon the length of the term of imprisonment that the sentencing judge imposes, not the length of time that the prisoner actually serves. Thus, if a sentencing judge imposes a prison term of 10 years (as in our example), then, in peti tioners’ view, the statute permits a maximum good time award of 540 days (10 years times 54 days), not the 470 days that the method described above would allow. And if the judge imposes a prison term of 10 years and 6 months, then the statute permits 567 days (540 days for the 10 years plus 27 days for the extra 6 months), not the 494 days that the method above would allow. According to petitioners, the BOP’s method causes model prisoners to lose seven days of good time credit per year of imprison ment, and because their sentences are fairly long (one, Michael Barber, was sentenced to 26 years and 8 months; the other, Tahir Jihad-Black, was sentenced to 21 years and 10 months), the difference in their cases amounts to several months of additional prison time. The District Court in each of these cases rejected the prisoner’s challenge. Civ. No. 08–226 MO (D Ore., Oct. 27, Cite as: 560 U. S. ____ (2010) 5 Opinion of the Court 2008), App. 13; Jihad-Black v. Thomas, Civ. No. 08–227 MO (D Ore., Oct. 27, 2008), App. 25. And in each instance the Court of Appeals affirmed the District Court. Tablada v. Thomas, No. 07–35538 (CA9, Apr. 10, 2009), App. 11; see also Tablada v. Thomas, 533 F.3d 800 (CA9 2008). Because the BOP’s administration of good time credits affects the interests of a large number of federal prisoners, we granted the consolidated petition for certiorari to con sider petitioners’ challenge. II Having now considered petitioners’ arguments, we conclude that that we must reject their legal challenge. The statute’s language and its purpose, taken together, convince us that the BOP’s calculation method is lawful. For one thing, that method tracks the language of §3624(b). That provision says that a prisoner (serving a sentence of imprisonment of more than a year and less than life) “may receive credit . . . of up to 54 days at the end of each year” subject to the “determination by the Bureau of Prisons that, during that year, the prisoner” has behaved in an exemplary fashion. Ibid. (emphasis added). And it says that credit for the “last year or portion of a year . . . shall be prorated and credited within the last six weeks of the sentence.” Ibid. As the example in Part I makes clear, the BOP’s interpretation provides a prisoner entitled to a maximum annual credit with 54 days of good time credit for each full year of imprisonment that he serves and a proportionally adjusted amount of credit for any additional time served that is less than a full year. And, as §3624(b) directs, the BOP awards the credit at the end of each year of imprisonment (except, of course, for Year 9, which is subject to the statute’s special instruction requiring proration and crediting during the last six weeks of the sentence). We are unable similarly to reconcile petitioners’ ap 6 BARBER v. THOMAS Opinion of the Court proach with the statute. Their system awards credit for the sentence imposed, regardless of how much time is actually served. Thus, a prisoner under petitioners’ sys tem could receive 54 days of credit for Year 10 despite the fact that he would be released after less than 81⁄2 years in prison. The good time calculation for Year 10 would not be made “at the end of” Year 10 (nor within the last six weeks of a sentence ending during that year). Neither could the BOP determine whether the prisoner had behaved in exemplary fashion “during that year.” 18 U.S. C. §3624(b) (emphasis added); see also White v. Scibana, 390 F.3d 997, 1001 (CA7 2004) (“The Bureau cannot evaluate a prisoner’s behavior and award credit for good conduct if the prisoner is not still in prison”); cf. McGinnis v. Royster, 410 U.S. 263, 273 (1973) (“Where there is no evaluation by state officials and little or no rehabilitative participa tion for anyone to evaluate, there is a rational justification for declining to give good-time credit”). We cannot say that this language (“at the end of,” “dur ing that year”) found its way into the statute by accident. Under the previous good time provision, a prisoner was “entitled to a deduction from the term of his sentence beginning with the day on which the sentence commences to run.” 18 U.S. C. §4161 (1982 ed.) (repealed 1984). This deduction, granted at the outset of a prisoner’s sentence, was then made subject to forfeiture if the prisoner “com mit[ted] any offense or violate[d] the rules of the institu tion.” §4165 (repealed 1984). The present statute, §3624 (2006 ed.), in contrast, creates a system under which “credit” is “earned” “at the end of” the year based on an evaluation of behavior “during that year.” We agree with the Government that “[t]he textual differences between the two statutes reveal a purpose to move from a system of prospective entitlement to a system of retrospective award.” Brief for Respondent 33; see also White, supra, at 1002, n. 3. Cite as: 560 U. S. ____ (2010) 7 Opinion of the Court For another thing, the BOP’s method better furthers the statute’s basic purpose. The “good time” provision in §3624 is part of the Sentencing Reform Act of 1984, 98 Stat. 1987, 18 U.S. C. §3551 et seq., 28 U.S. C. §§991– 998, a comprehensive law that reformed federal sentenc ing practice and directed the newly created United States Sentencing Commission “to devise guidelines to be used for sentencing” in district courts, Mistretta v. United States, 488 U.S. 361, 367 (1989). Under the previous regime, the United States Parole Commission, “as a gen eral rule, [could] conditionally release a prisoner any time after he serve[d] one-third of the judicially fixed term.” United States v. Grayson, 438 U.S. 41, 47 (1978). If, for example, a judge imposed a prison term of 15 years, the Parole Commission might have released the prisoner after only 5 years. And it routinely did so. See United States Sentencing Commission, Guidelines Manual §1A3, p. s., p. 1.2 (Oct. 1987) (USSG) (“[D]efendants often serv[ed] only about one-third of the sentence handed down by the court”). The result was “confusion and implicit deception.” Ibid. With the Sentencing Reform Act, Congress sought to achieve both increased sentencing uniformity and greater honesty by “mak[ing] all sentences basically determinate,” Mistretta, supra, at 367. See USSG §1A3, p. s., at 1.2 (statutory objectives included “honesty in sentencing,” “uniformity,” and “proportionality” (emphasis deleted)). Thereafter, the sentence the judge imposed would be the sentence the offender actually served, with a sole statutory exception for good time credits. Mistretta, supra, at 367 (a “prisoner is to be released at the completion of his sen tence reduced only by any credit earned by good behavior while in custody” (citing §3624(b)). The reason for this exception is provided in §3624(b) itself: to provide an incentive for prisoners to “compl[y] with institutional disciplinary regulations.” The good time exception is limited (to 54 days per year) and tailored to its purpose— 8 BARBER v. THOMAS Opinion of the Court credit is earned at the end of the year after compliance with institutional rules is demonstrated and thereby rewards and reinforces a readily identifiable period of good behavior. The BOP’s approach furthers the objective of §3624. It ties the award of good time credits directly to good behav ior during the preceding year of imprisonment. By con trast, petitioners’ approach, insofar is it would award up to 54 days per year of time sentenced as opposed to time served, allows a prisoner to earn credit for both the portion of his sentence that he serves and the portion of his sen tence that he offsets with earned good time credit. In other words, petitioners argue that the BOP should award good time credit not only for the days a prisoner spends in prison and behaves appropriately, but also for days that he will not spend in prison at all, such as Year 10 in our example. By doing so, it loosens the statute’s connection between good behavior and the award of good time and transforms the nature of the exception to the basic sen tence-imposed-is-sentence-served rule. And to that extent, it is inconsistent with the statute’s basic purpose. III A We are not convinced by petitioners’ several arguments against the BOP’s methodology. First, petitioners point to the statement in §3624(b) that a prisoner “may receive credit . . . at the end of each year of the prisoner’s term of imprisonment.” (Emphasis added.) The words “term of imprisonment,” they say, must refer to the years of the term that the sentencing judge imposed (10 years in our example), not the (less-than-10) years of the term that the prisoner actually served once good time credits were taken into account. After all, the very first phrase of that provi sion makes eligible for good time credits “a prisoner who is serving a term of imprisonment of more than 1 year other Cite as: 560 U. S. ____ (2010) 9 Opinion of the Court than a term of imprisonment for the duration of the pris oner’s life.” Ibid. (emphasis added; footnote omitted). The words “term of imprisonment” in this phrase almost cer tainly refer to the sentence imposed, not to the time actu ally served (otherwise prisoners sentenced to a year and a day would become ineligible for credit as soon as they earned it). And, as petitioners emphasize, we have recog nized a “presumption that a given term is used to mean the same thing throughout a statute,” Brown v. Gardner, 513 U.S. 115, 118 (1994). The problem for petitioners, however, is that this pre sumption is not absolute. It yields readily to indications that the same phrase used in different parts of the same statute means different things, particularly where the phrase is one that speakers can easily use in different ways without risk of confusion. Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932); General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 595– 596 (2004). See, e.g., id., at 596–597 (“age” has different meanings in the Age Discrimination in Employment Act of 1967); United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001) (same for “ ‘wages paid’ ” in the Internal Revenue Code); Robinson v. Shell Oil Co., 519 U.S. 337, 343–344 (1997) (same for “employee” in Title VII of the Civil Rights Act of 1964). The phrase “term of imprisonment” is just such a phrase. It can refer to the sentence that the judge im poses, see, e.g., §3624(a) (“A prisoner shall be released” at the end of “the prisoner’s term of imprisonment, less any time credited” for good behavior), but it also can refer to the time that the prisoner actually serves. Thus, §3624(d) of the statute before us requires BOP to “furnish [a] pris oner with . . . suitable clothing[,] . . . money, . . . and . . . transportation” “[u]pon the release of [the] prisoner on the expiration of the prisoner’s term of imprisonment.” (Em phasis added.) The statute here means to assure that the 10 BARBER v. THOMAS Opinion of the Court prisoner is provided with these necessities at the time of his actual release from prison (sometime during Year 9 in our example), not at the end of the term that the judge imposed (which would be over a year later). Since the statute uses the same phrase “term of imprisonment” in two different ways, the presumption cannot help petition ers here. And, for the reasons we have given, see Part II, supra, context here indicates that the particular instance of the phrase “term of imprisonment” at issue refers to prison time actually served rather than the sentence imposed by the judge. Second, petitioners seek to draw support from the stat ute’s legislative history. But those who consider legisla tive history significant cannot find that history helpful to petitioners here. Petitioners point, for example, to a statement in the Senate Report accompanying the Sen tencing Reform Act, which says that the “method of calcu lation” of good time “will be considerably less complicated than under current law in many respects,” and that “credit toward early release is earned at a steady and easily determined rate that will have an obvious impact on the prisoner’s release date.” S. Rep. No. 98–225, p. 146–147 (1983); see Brief for Petitioners 31–32. But these state ments are consistent with the BOP’s interpretation of the statute. Its method, as we understand it, is not particu larly difficult to apply and it is certainly less complex than prior law, which provided for the accumulation of two different kinds of good time credit (general and industrial), calculated in different manners (prospectively and retro spectively), and awarded at different rates, depending on the length of sentence imposed on the prisoner (5 to 10 days per month for general) or the year of employment (3 or 5 days per month for industrial). See 18 U.S. C. §§4161, 4162 (1982 ed.). Petitioners also point to various statements contained in the Act’s Conference Report and made by individual legis Cite as: 560 U. S. ____ (2010) 11 Opinion of the Court lators that describe good time credit as providing sentence reductions of 15%. See Brief for Petitioners 34–36 (citing, e.g., H. R. Conf. Rep. No. 98–1159, p. 415 (1984); 131 Cong. Rec. 488 (1985) (remarks of Rep. Hamilton)). But there is nothing in the context of these statements to suggest that they amounted to anything other than rough approximations or that they were made with the present controversy in mind. See, e.g., H. R. Conf. Rep. No. 98– 1159, at 415 (noting simply that an increase in the amount of maximum annual credit from 36 days to 54 days “in creases ‘good time’ that accrues from 10 percent to 15 percent”); 131 Cong. Rec. 488 (1985) (statement of Rep. Hamilton) (“Under [pre-Sentencing Reform Act] law, about 80% of all criminals are paroled after serving one third of their time. Now sentences will be reduced only 15% for good behavior”). And whatever interpretive force one attaches to legislative history, the Court normally gives little weight to statements, such as those of the individual legislators, made after the bill in question has become law. See, e.g., Heintz v. Jenkins, 514 U.S. 291, 298 (1995). Third, petitioners rely on a statement in the United States Sentencing Commission’s Supplementary Report on the Initial Sentencing Guidelines and Policy Statements issued in 1987 (hereinafter Supplementary Report). In that Report, the Commission summarized its analysis of recent pre-Guidelines sentencing practice, which it had used to help draft the Guidelines. The results of the analysis were presented in a table that permits compari son of the likely prison-time consequences of the new Guidelines with prison time actually served under pre- Guidelines practice (specifically, by identifying the Guide lines “offense level that is closest to the average time . . . served by first-time offenders” convicted of a particular crime, Supplementary Report 23). Because the Guidelines “refer to sentences prior to the awarding of good time” (i.e., because a Guidelines sentence of, say, 30 months’ impris 12 BARBER v. THOMAS Opinion of the Court onment does not necessarily mean that the offender will serve the entire 30 months in prison), the Commission adjusted the average time served “by dividing by 0.85 good time when the term exceeded 12 months.” Ibid. This adjustment, the Commission explained, “made sentences in the [t]able comparable with those in the guidelines.” Ibid. Pointing to this adjustment and a reference in later editions of the Guidelines to a potential credit of “ap proximately fifteen percent for good behavior,” see, e.g., USSG §1A3, p. s., at 3 (Nov. 2009), petitioners maintain that the Commission set its Guideline ranges with the expectation that well-behaved prisoners would receive good time credit of up to 15% of the sentence imposed, not 15% of the time actually served. They add that, in setting the Guidelines ranges in this way, the Commission exer cised congressionally delegated power to interpret the Sentencing Reform Act, see Mistretta, 488 U.S., at 371– 379 (approving Congress’ delegation of the power to prom ulgate sentencing guidelines), and that as long as that interpretation is reasonable, courts must defer to it. See Chevron U. S. A. Inc. v. Natural Resources Defense Coun cil, Inc., 467 U.S. 837, 843–844 (1984). Again, however, we can find no indication that the Commission, in writing its Supplementary Report or in the Guidelines themselves, considered or referred to the particular question here before us, that is whether good time credit is to be based on time served or the sentence imposed. The Guidelines Manual itself, a more authorita tive account of the Commission’s interpretive views than the Supplementary Report, says nothing directly on that subject. Moreover, with respect to comparisons between Guidelines sentences and pre-Guidelines practice, the original 1987 Manual cautioned that the Guidelines did not “simply cop[y] estimates of existing practice as re vealed by the data,” but rather “departed from the data at Cite as: 560 U. S. ____ (2010) 13 Opinion of the Court different points for various important reasons.” USSG §1A3, p. s., at 1.4; see also id., §1A4(g), p. s., at 1.11 (while “Guideline sentences in many instances will ap proximate existing [i.e., pre-Guidelines] practice,” the Commission did “not conside[r] itself bound by existing sentencing practice” (emphasis added)). Because the Commission has expressed no view on the question before us, we need not decide whether it would be entitled to deference had it done so. If it turns out that the calcula tion of good time credit based on prison time served rather than the sentence imposed produces results that are more severe than the Commission finds appropriate, the Com mission remains free to adjust sentencing levels accord ingly. See id., §1A2, at 1.2 (acknowledging that “the guideline-writing process is evolutionary” and that the Commission functions “as a permanent agency to monitor sentencing practices in the federal courts throughout the nation”). Fourth, petitioners ask us to invoke the rule of lenity and construe §3624 (2006 ed.) in their favor, that is, in a way that will maximize the amount of available good time credit. We may assume for present purposes that §3624(b) can be construed as imposing a criminal penalty. See Bifulco v. United States, 447 U.S. 381, 387 (1980) (rule of lenity applies to “interpretations of . . . the penalties” imposed by “criminal prohibitions”); but see Sash v. Zenk, 428 F.3d 132, 134 (CA2 2005) (Sotomayor, J.) (holding that §3624(b) is not a criminal statute for the purposes of the rule of lenity). Even so, the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a “grievous ambiguity or uncertainty in the statute,” Muscarello v. United States, 524 U.S. 125, 139 (1998) (internal quotation marks omitted), such that the Court must simply “ ‘guess as to what Congress intended.’ ” Bifulco, supra, at 387 (quoting Ladner v. United States, 358 U.S. 169, 178 (1958)). See United States v. Hayes, 14 BARBER v. THOMAS Opinion of the Court 555 U. S. ___, ___ (2009) (slip op., at 13); United States v. R. L. C., 503 U.S. 291, 305–306 (1992) (plurality opinion). Having so considered the statute, we do not believe that there remains a “grievous ambiguity or uncertainty” in the statutory provision before us. Nor need we now simply “guess” what the statute means. Finally, we note that petitioners urge us not to defer to the BOP’s implementation of §3624(b). In our view, the BOP’s calculation system applies that statute as its lan guage is most naturally read, and in accordance with what that language makes clear is its basic purpose. No one doubts that the BOP has the legal power to implement the statute in accordance with its language and purposes; hence we need not determine the extent to which Congress has granted the BOP authority to interpret the statute more broadly, or differently than it has done here. Cf. Chevron, supra, at 844–845. B Acknowledging that petitioners’ arguments cannot carry the day, the dissent has proposed a “third possibility,” post, at 2 (opinion of KENNEDY, J.), not raised by either party nor, to our knowledge, used elsewhere in the Crimi nal Code. The dissent reads the statutory phrase “term of imprisonment” to refer to “the administrative period along which progress toward eventual freedom is marked.” Post, at 3. It derives from this reading the following method of calculation as applied to our 10-year example. First, “[t]he sentence is divided into 10 365-day segments.” Ibid. At the end of the first segment, a prisoner may receive up to 54 days of credit for good behavior. These credits immedi ately “go toward completion of the next year” so that the prisoner need only serve “another 311 days behind bars before the second year of his term of imprisonment is at an end.” Ibid. This process repeats itself until the “10th segment,” in which a prisoner receives an unspecified Cite as: 560 U. S. ____ (2010) 15 Opinion of the Court “credit in a prorated amount.” Ibid. In the end, the pris oner will have served 10 “administrative segments,” ibid., collectively comprising 3,117 days in prison and 533 days of credit. The dissent claims “[r]eading ‘term of imprisonment’ this way is consistent with all parts of the statute.” Post, at 4. We see at least four problems. First, the opening sentence of §3624(a) instructs that “[a] prisoner shall be released” upon “the expiration of the prisoner’s term of imprisonment, less any time credited” for good behavior. But if a prisoner’s “term of imprisonment” is the “period that a prisoner must complete in order to earn his free dom,” post, at 4, and it is “accounted for through a combi nation of prison time and credits,” post, at 3, then a pris oner should be released exactly at the end of his term of imprisonment (without any further adjustment). Because the dissent’s approach would require us to read words out of the statute, or give prisoners double credit, its definition cannot be used here. Second, §3624(b)(1) tells us that a prisoner receives credit “at the end of each year” based on behavior “during that year.” Under the dissent’s approach, however, a prisoner may receive credit at the end of each “administra tive segmen[t]” presumably based on his behavior during that segment. And because an “administrative segmen[t]” is made up of some “combination of service and credits,” post, at 4, each one lasts less than a calendar year. We do not see how a system in which “a prisoner may complete a particular year of his term in less than 365 calendar days,” ibid., and receive full good time credit for doing so, can possibly represent the most natural reading of this statu tory language. Nor do we know, because the BOP has not had an opportunity to tell us, whether a system in which a “year” lasts anywhere from 311 to 365 calendar days (and in which the “years” of a single prisoner’s sentence may all be of different lengths), is easily administrable. (We doubt 16 BARBER v. THOMAS Opinion of the Court that this system will be more comprehensible to prisoners than one, like the BOP’s, that provides credit for actual years.) Third, under the dissent’s approach, credit is earned at different rates during a single sentence. For the first “administrative segmen[t]” in its 10-year example, the prisoner serves 365 days and earns 54 days of credit. The ratio of credit earned to days served is .148. For the sec ond “administrative segmen[t],” the prisoner serves 311 days and earns 54 days of credit. This time, the ratio of credit earned to days served is .174. (For the last “admin istrative segmen[t],” the dissent tells us the prisoner will receive “credit in a prorated amount,” but it does not tell us which ratio should be used for the proration. Post, at 3.) The use of different rates finds no support in the stat ute. The dissent objects that the statute “prescribes no particular rate,” post, at 7, but in fact it does—54 days of credit per year of good behavior—and it further requires that credit for the last year be “prorated” using the same proportion. Moreover, the dissent’s application of different rates leads to odd results. For example, a model prisoner sentenced on two separate 5-year terms (with a break in between) will serve a different number of days from one sentenced to a single 10-year term. How can this be if both prisoners are earning 54 days of credit for each of their 10 years in prison? Fourth, §3624(b)(2) provides that good time credit “shall vest on the date the prisoner is released from custody.” (This provision does not apply to prisoners, like petition ers, who committed their offenses before it was amended in 1996, but the dissent plainly intends for its approach to apply more broadly. See post, at 9 (noting the effect on “almost 200,000 federal prisoners”).) Yet under the dis sent’s approach, credit appears to vest immediately. See post, at 3 (Days of credit for the first year “go toward completion of the next year” so that the prisoner “would Cite as: 560 U. S. ____ (2010) 17 Opinion of the Court need another 311 days behind bars before the second year of his term of imprisonment is at an end”). And if it does not, then the situation quickly becomes complicated. What happens if, say, on the last day of the 10th “adminis trative segmen[t]” (somewhere in the 8th calendar year), a prisoner badly misbehaves and prison officials punish him by taking away all of his previously earned credit? Cf. 28 CFR §541.13 (2009) (prescribing sanctions for prohibited acts). Does the BOP retroactively adjust the duration of all of his administrative segments to 365 days so that the prisoner now finds himself in the middle of the 8th “ad ministrative segmen[t]”? (Again we do not know if the BOP would find such a system administrable, and we doubt that this system would be more comprehensible to a prisoner.) If so, does the prisoner have a second opportu nity to earn credit for good behavior for the 9th “adminis trative segmen[t]” that he had previously completed but now must account for again? Cf. §3624(b)(1) (“Credit that has not been earned may not later be granted”). Or, hav ing previously awarded (and taken away) credit for that segment, are prison authorities left without any incentive to offer for good behavior? Finally, the dissent, like petitioners, invokes the rule of lenity to support its interpretation. But, the best efforts of the dissent notwithstanding, we still see no “grievous ambiguity or uncertainty” that would trigger the rule’s application. We remain convinced that the BOP’s ap proach reflects the most natural reading of the statutory language and the most consistent with its purpose. What ever the merits of the dissent’s policy arguments, the statute does not require the BOP to accept them. For all of these reasons, we conclude that the BOP’s methodology is lawful. The Ninth Circuit’s judgment is Affirmed. 18 BARBER v. THOMAS Opinion of the Court Appendix to opinion of the Court APPENDIX A fuller example of the BOP’s method for calculat ing “credit for the last year or portion of a year of the term of imprisonment” The defendant is sentenced to 10 years’ imprisonment. As a prisoner he exhibits exemplary behavior and is awarded the maximum credit of 54 days at the end of each year served in prison. At the end of Year 8, the prisoner has 2 years remaining in his sentence and has accumu lated 432 days of good time credit. Because the difference between the time remaining in his sentence and the amount of accumulated credit (i.e., 730 - 432) is less than a year (298 days), Year 9 is the last year he will spend in prison. (Year 10 has been completely offset by 365 of the 432 days of accumulated credit.) Further, Year 9 will be a partial year of 298 days (the other 67 days of the year being offset by the remainder of the accumulated credit). Here is where the elementary algebra comes in. We know that x, the good time, plus y, the remaining time served, must add up to 298. This gives us our first equa tion: x + y = 298. We also know that the ratio of good time earned in the portion of the final year to the amount of time served in that year must equal the ratio of a full year’s good time credit to the amount of time served in a full year. The latter ratio is 54/365 or .148. Thus, we know that x/y = .148, or to put it another way, x = .148y. Because we know the value of x in terms of y, we can make a substitu tion in our first equation to get .148y + y = 298. We then add the two y terms together (1.148y = 298), and we solve for y, which gives us y = 260. Now we can plug that value into our first equation to solve for x (the good time credit). If we subtract 260 from 298, we find that x = 38. The offender will have to serve 260 days in prison in Year 9, and he will receive 38 days additional good time Cite as: 560 U. S. ____ (2010) 19 Opinion of the Court Appendix to opinion of the Court credit for that time served. The prisoner’s total good time is 470 days (432 + 38 = 470). His total time served is 3180 days. As a final matter, while we have described the foregoing as the method to calculate credit for the portion of the last year to more transparently track the relevant statutory language, we note that the mathematical formula can be used to calculate the amount of maximum available credit for an entire sentence. Using the equations supplied above, if we divide the total number of days in a sentence by 1.148, we get the minimum number of days that a defendant must serve in that sentence. If we then sub tract the number of days served from the total number of days in the sentence, we arrive at the maximum number of good time credit days the prisoner can earn. The stat ute, however, awards them on a yearly basis (but for the “last year or portion” thereof). Cite as: 560 U. S. ____ (2010) 1 KENNEDY, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–5201 _________________ MICHAEL GARY BARBER, ET AL., PETITIONERS v. J. E.

Federal sentencing law permits federal prison authori ties to award prisoners credit against prison time as a reward for good behavior. 18 U.S. C. Petition ers, two federal prisoners, challenge the method that the Federal Bureau of Prisons uses for calculating this “good time credit.” We conclude that the Bureau’s method re flects the most natural reading of the statute, and we reject petitioners’ legal challenge. I A A federal sentencing statute provides: “[A] prisoner who is serving a term of imprisonment of more than 1 year may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.” 2 BARBER v. THOMAS Opinion of the Court The Bureau of Prisons (BOP) applies this statute using a methodology that petitioners in this case challenge as unlawful. In order to explain the BOP method, we shall use a simplified example that captures its essential ele ments. The unsimplified calculations described by the BOP in its policy statement, see App. 96–100, will reach approximately the same results as, and are essentially the mathematical equivalent of, the simplified system we describe (there may be other ways to describe the calcula tion as well). To the extent that there are any differences between the methodology employed by the BOP and that reflected in our example, they are of no consequence to the resolution of petitioners’ challenge and are therefore not before us. Similarly, although petitioners committed their crimes before the current version of was enacted and are therefore subject to a previous version that dif fered slightly in certain details, see 18 U.S. C. (1988 ed.), the differences between the two versions are immaterial to the questions presented by this case. The parties refer to the current version as the relevant provi sion of law, see Brief for Petitioners 2–3; Brief for Respon dent 8, n. 2, and we shall do the same. In our example we shall imagine a prisoner who has received a sentence of 10 years’ imprisonment. We shall assume that his behavior throughout his confinement is exemplary and that prison authorities will consequently consider him to merit the maximum good time credit that the statute will allow. And we shall ignore leap years. Thus, at the end of the first year (Year 1) that prisoner would earn the statute’s maximum credit of 54 days. The relevant official (whom we shall call the “good time calcu lator”) would note that fact and, in effect, preliminarily put the 54 days to the side. At the end of Year 2 the pris oner would earn an additional 54 days of good time credit. The good time calculator would add this 54 days to the first 54 days, note the provisional total of 108 days, and Cite as: 560 U. S. (2010) 3 Opinion of the Court again put the 108 days’ credit to the side. By the end of Year 8, the prisoner would have earned a total of 432 days of good time credit (8 years times 54 days). At that time, the good time calculator would note that the difference between the time remaining in the sentence (2 years, or 730 days) and the amount of accumulated good time credit (432 days) is less than 1 year (730 minus 432 equals days, which is less than 365). The 432 days of good time credit that the prisoner has earned by the end of Year 8 are sufficient to wipe out all of the last year of the 10-year prison term and to shorten the prisoner’s 9th year of im prisonment by 67 days. Year 9 of the sentence will consequently become the prisoner’s last year of imprisonment. Further, because the prisoner has already earned 67 days of credit against that year (432 days already earned minus 365 days applied to Year 10 leaves 67 days to apply to Year 9), the prisoner will have no more than days left to serve in Year 9. Now the good time calculator will have to work out just how much good time the prisoner can earn, and credit against, these remaining days. As we said, the statute provides that “good time” for this “last year or portion” thereof shall be “prorated.” Thus, the good time calculator must divide the days into two parts: (1) days that the prisoner will have to serve in prison, and (2) credit for good behavior the prisoner will earn during the days served in Year 9. In other words, the number of days to be served in Year 9 plus the number of good time credit days earned will be equal to the number of days left in the sentence, namely, And to keep the award of credit in the last year proportional to awards in other years, the ratio of these two parts of Year 9 (i.e., the number of good time days divided by the number of days served) must be 54/365, the same ratio that the BOP applies to full years served. We can use some elementary algebra, described in the Appendix, infra, to work out the 4 BARBER v. THOMAS Opinion of the Court rest. The result is that if the prisoner serves 260 days, he can earn an additional 38 days of credit for good behavior. That is to say, of the days remaining in his sentence, the prisoner will have to serve 260 days in confinement, after which point, his sentence will be fully accounted for (given the additional 38 days’ credit earned), and he will be released. In sum, a prisoner subject to a 10-year (3,650-day) sentence who earns the maximum number of days the statute permits will serve 3,180 days in confine ment and receive 0 days of “good time” credit, about 15% of the prison time actually served. B In this case petitioners claim that the BOP’s calculation method is unlawful. They say that (b)(1) (2006 ed.) requires a straightforward calculation based upon the length of the term of imprisonment that the sentencing judge imposes, not the length of time that the prisoner actually serves. Thus, if a sentencing judge imposes a prison term of 10 years (as in our example), then, in peti tioners’ view, the statute permits a maximum good time award of 540 days (10 years times 54 days), not the 0 days that the method described above would allow. And if the judge imposes a prison term of 10 years and 6 months, then the statute permits 567 days (540 days for the 10 years plus 27 days for the extra 6 months), not the 494 days that the method above would allow. According to petitioners, the BOP’s method causes model prisoners to lose seven days of good time credit per year of imprison ment, and because their sentences are fairly long (one, Michael Barber, was sentenced to 26 years and 8 months; the other, Tahir Jihad-Black, was sentenced to 21 years and 10 months), the difference in their cases amounts to several months of additional prison time. The District Court in each of these cases rejected the prisoner’s challenge. Civ. No. 08–226 MO (D Ore., Oct. 27, Cite as: 560 U. S. (2010) 5 Opinion of the Court ), App. 13; Jihad-Black v. Thomas, Civ. No. 08–227 MO App. 25. And in each instance the Court of Appeals affirmed the District Court. Tablada v. Thomas, No. 07–35538 (CA9, Apr. 10, 2009), App. 11; see also Because the BOP’s administration of good time credits affects the interests of a large number of federal prisoners, we granted the consolidated petition for certiorari to con sider petitioners’ challenge. II Having now considered petitioners’ arguments, we conclude that that we must reject their legal challenge. The statute’s language and its purpose, taken together, convince us that the BOP’s calculation method is lawful. For one thing, that method tracks the language of That provision says that a prisoner (serving a sentence of imprisonment of more than a year and less than life) “may receive credit of up to 54 days at the end of each year” subject to the “determination by the Bureau of Prisons that, during that year, the prisoner” has behaved in an exemplary fashion. And it says that credit for the “last year or portion of a year shall be prorated and credited within the last six weeks of the sentence.” As the example in Part I makes clear, the BOP’s interpretation provides a prisoner entitled to a maximum annual credit with 54 days of good time credit for each full year of imprisonment that he serves and a proportionally adjusted amount of credit for any additional time served that is less than a full year. And, as (b) directs, the BOP awards the credit at the end of each year of imprisonment (except, of course, for Year 9, which is subject to the statute’s special instruction requiring proration and crediting during the last six weeks of the sentence). We are unable similarly to reconcile petitioners’ ap 6 BARBER v. THOMAS Opinion of the Court proach with the statute. Their system awards credit for the sentence imposed, regardless of how much time is actually served. Thus, a prisoner under petitioners’ sys tem could receive 54 days of credit for Year 10 despite the fact that he would be released after less than 81⁄2 years in prison. The good time calculation for Year 10 would not be made “at the end of” Year 10 (nor within the last six weeks of a sentence ending during that year). Neither could the BOP determine whether the prisoner had behaved in exemplary fashion “during that year.” 18 U.S. C. (b) ; see also v. Scibana, 390 F.3d 997, 1001 (CA7 2004) (“The Bureau cannot evaluate a prisoner’s behavior and award credit for good conduct if the prisoner is not still in prison”); cf. (“Where there is no evaluation by state officials and little or no rehabilitative participa tion for anyone to evaluate, there is a rational justification for declining to give good-time credit”). We cannot say that this language (“at the end of,” “dur ing that year”) found its way into the statute by accident. Under the previous good time provision, a prisoner was “entitled to a deduction from the term of his sentence beginning with the day on which the sentence commences to run.” 18 U.S. C. (1982 ed.) This deduction, granted at the outset of a prisoner’s sentence, was then made subject to forfeiture if the prisoner “com mit[ted] any offense or violate[d] the rules of the institu tion.” The present statute, (2006 ed.), in contrast, creates a system under which “credit” is “earned” “at the end of” the year based on an evaluation of behavior “during that year.” We agree with the Government that “[t]he textual differences between the two statutes reveal a purpose to move from a system of prospective entitlement to a system of retrospective award.” Brief for Respondent 33; see also at 1002, n. 3. Cite as: 560 U. S. (2010) 7 Opinion of the Court For another thing, the BOP’s method better furthers the statute’s basic purpose. The “good time” provision in is part of the Sentencing Reform Act of 1984, 98 Stat. 1987, 18 U.S. C. et seq., 28 U.S. C. 998, a comprehensive law that reformed federal sentenc ing practice and directed the newly created United States Sentencing Commission “to devise guidelines to be used for sentencing” in district courts, Under the previous regime, the United States Parole Commission, “as a gen eral rule, [could] conditionally release a prisoner any time after he serve[d] one-third of the judicially fixed term.” United If, for example, a judge imposed a prison term of 15 years, the Parole Commission might have released the prisoner after only 5 years. And it routinely did so. See United States Sentencing Commission, Guidelines Manual p. s., p. 1.2 (Oct. 1987) (USSG) (“[D]efendants often serv[ed] only about one-third of the sentence handed down by the court”). The result was “confusion and implicit deception.” With the Sentencing Reform Act, Congress sought to achieve both increased sentencing uniformity and greater honesty by “mak[ing] all sentences basically determinate,” at See USSG p. s., at 1.2 (statutory objectives included “honesty in sentencing,” “uniformity,” and “proportionality” (emphasis deleted)). Thereafter, the sentence the judge imposed would be the sentence the offender actually served, with a sole statutory exception for good time credits. at (a “prisoner is to be released at the completion of his sen tence reduced only by any credit earned by good behavior while in custody” (citing (b)). The reason for this exception is provided in (b) itself: to provide an incentive for prisoners to “compl[y] with institutional disciplinary regulations.” The good time exception is limited (to 54 days per year) and tailored to its purpose— 8 BARBER v. THOMAS Opinion of the Court credit is earned at the end of the year after compliance with institutional rules is demonstrated and thereby rewards and reinforces a readily identifiable period of good behavior. The BOP’s approach furthers the objective of It ties the award of good time credits directly to good behav ior during the preceding year of imprisonment. By con trast, petitioners’ approach, insofar is it would award up to 54 days per year of time sentenced as opposed to time served, allows a prisoner to earn credit for both the portion of his sentence that he serves and the portion of his sen tence that he offsets with earned good time credit. In other words, petitioners argue that the BOP should award good time credit not only for the days a prisoner spends in prison and behaves appropriately, but also for days that he will not spend in prison at all, such as Year 10 in our example. By doing so, it loosens the statute’s connection between good behavior and the award of good time and transforms the nature of the exception to the basic sen tence-imposed-is-sentence-served rule. And to that extent, it is inconsistent with the statute’s basic purpose. III A We are not convinced by petitioners’ several arguments against the BOP’s methodology. First, petitioners point to the statement in (b) that a prisoner “may receive credit at the end of each year of the prisoner’s term of imprisonment.” (Emphasis added.) The words “term of imprisonment,” they say, must refer to the years of the term that the sentencing judge imposed (10 years in our example), not the (less-than-10) years of the term that the prisoner actually served once good time credits were taken into account. After all, the very first phrase of that provi sion makes eligible for good time credits “a prisoner who is serving a term of imprisonment of more than 1 year other Cite as: 560 U. S. (2010) 9 Opinion of the Court than a term of imprisonment for the duration of the pris oner’s life.” The words “term of imprisonment” in this phrase almost cer tainly refer to the sentence imposed, not to the time actu ally served (otherwise prisoners sentenced to a year and a day would become ineligible for credit as soon as they earned it). And, as petitioners emphasize, we have recog nized a “presumption that a given term is used to mean the same thing throughout a statute,” The problem for petitioners, however, is that this pre sumption is not absolute. It yields readily to indications that the same phrase used in different parts of the same statute means different things, particularly where the phrase is one that speakers can easily use in different ways without risk of confusion. Atlantic Cleaners & Dyers, ; General Dynamics Land Systems, 595– 596 (2004). See, e.g., at 596–597 (“age” has different meanings in the Age Discrimination in Employment Act of 1967); United (same for “ ‘wages paid’ ” in the Internal Revenue Code); Robinson v. Shell Oil Co., 519 U.S. 337, 343–344 (1997) (same for “employee” in Title VII of the Civil Rights Act of 1964). The phrase “term of imprisonment” is just such a phrase. It can refer to the sentence that the judge im poses, see, e.g., (a) (“A prisoner shall be released” at the end of “the prisoner’s term of imprisonment, less any time credited” for good behavior), but it also can refer to the time that the prisoner actually serves. Thus, (d) of the statute before us requires BOP to “furnish [a] pris oner with suitable clothing[,] money, and transportation” “[u]pon the release of [the] prisoner on the expiration of the prisoner’s term of imprisonment.” (Em phasis added.) The statute here means to assure that the 10 BARBER v. THOMAS Opinion of the Court prisoner is provided with these necessities at the time of his actual release from prison (sometime during Year 9 in our example), not at the end of the term that the judge imposed (which would be over a year later). Since the statute uses the same phrase “term of imprisonment” in two different ways, the presumption cannot help petition ers here. And, for the reasons we have given, see Part II, context here indicates that the particular instance of the phrase “term of imprisonment” at issue refers to prison time actually served rather than the sentence imposed by the judge. Second, petitioners seek to draw support from the stat ute’s legislative history. But those who consider legisla tive history significant cannot find that history helpful to petitioners here. Petitioners point, for example, to a statement in the Senate Report accompanying the Sen tencing Reform Act, which says that the “method of calcu lation” of good time “will be considerably less complicated than under current law in many respects,” and that “credit toward early release is earned at a steady and easily determined rate that will have an obvious impact on the prisoner’s release date.” S. Rep. No. 98–225, p. 146–1 (1983); see Brief for Petitioners 31–32. But these state ments are consistent with the BOP’s interpretation of the statute. Its method, as we understand it, is not particu larly difficult to apply and it is certainly less complex than prior law, which provided for the accumulation of two different kinds of good time credit (general and industrial), calculated in different manners (prospectively and retro spectively), and awarded at different rates, depending on the length of sentence imposed on the prisoner (5 to 10 days per month for general) or the year of employment (3 or 5 days per month for industrial). See 18 U.S. C. §, 4162 (1982 ed.). Petitioners also point to various statements contained in the Act’s Conference Report and made by individual legis Cite as: 560 U. S. (2010) 11 Opinion of the Court lators that describe good time credit as providing sentence reductions of 15%. See Brief for Petitioners 34–36 ; 131 Cong. Rec. 488 (1985) (remarks of Rep. Hamilton)). But there is nothing in the context of these statements to suggest that they amounted to anything other than rough approximations or that they were made with the present controversy in mind. See, e.g., H. R. Conf. Rep. No. 98– 1159, at 415 (noting simply that an increase in the amount of maximum annual credit from 36 days to 54 days “in creases ‘good time’ that accrues from 10 percent to 15 percent”); 131 Cong. Rec. 488 (1985) (statement of Rep. Hamilton) (“Under [pre-Sentencing Reform Act] law, about 80% of all criminals are paroled after serving one third of their time. Now sentences will be reduced only 15% for good behavior”). And whatever interpretive force one attaches to legislative history, the Court normally gives little weight to statements, such as those of the individual legislators, made after the bill in question has become law. See, e.g., Third, petitioners rely on a statement in the United States Sentencing Commission’s Supplementary Report on the Initial Sentencing Guidelines and Policy Statements issued in 1987 (hereinafter Supplementary Report). In that Report, the Commission summarized its analysis of recent pre-Guidelines sentencing practice, which it had used to help draft the Guidelines. The results of the analysis were presented in a table that permits compari son of the likely prison-time consequences of the new Guidelines with prison time actually served under pre- Guidelines practice (specifically, by identifying the Guide lines “offense level that is closest to the average time served by first-time offenders” convicted of a particular crime, Supplementary Report 23). Because the Guidelines “refer to sentences prior to the awarding of good time” (i.e., because a Guidelines sentence of, say, 30 months’ impris 12 BARBER v. THOMAS Opinion of the Court onment does not necessarily mean that the offender will serve the entire 30 months in prison), the Commission adjusted the average time served “by dividing by 0.85 good time when the term exceeded 12 months.” This adjustment, the Commission explained, “made sentences in the [t]able comparable with those in the guidelines.” Pointing to this adjustment and a reference in later editions of the Guidelines to a potential credit of “ap proximately fifteen percent for good behavior,” see, e.g., USSG p. s., at 3 (Nov. 2009), petitioners maintain that the Commission set its Guideline ranges with the expectation that well-behaved prisoners would receive good time credit of up to 15% of the sentence imposed, not 15% of the time actually served. They add that, in setting the Guidelines ranges in this way, the Commission exer cised congressionally delegated power to interpret the Sentencing Reform Act, see – 379 (approving Congress’ delegation of the power to prom ulgate sentencing guidelines), and that as long as that interpretation is reasonable, courts must defer to it. See U. S. A. Again, however, we can find no indication that the Commission, in writing its Supplementary Report or in the Guidelines themselves, considered or referred to the particular question here before us, that is whether good time credit is to be based on time served or the sentence imposed. The Guidelines Manual itself, a more authorita tive account of the Commission’s interpretive views than the Supplementary Report, says nothing directly on that subject. Moreover, with respect to comparisons between Guidelines sentences and pre-Guidelines practice, the original 1987 Manual cautioned that the Guidelines did not “simply cop[y] estimates of existing practice as re vealed by the data,” but rather “departed from the data at Cite as: 560 U. S. (2010) 13 Opinion of the Court different points for various important reasons.” USSG p. s., at 1.4; see also p. s., at 1.11 (while “Guideline sentences in many instances will ap proximate existing [i.e., pre-Guidelines] practice,” the Commission did “not conside[r] itself bound by existing sentencing practice” ). Because the Commission has expressed no view on the question before us, we need not decide whether it would be entitled to deference had it done so. If it turns out that the calcula tion of good time credit based on prison time served rather than the sentence imposed produces results that are more severe than the Commission finds appropriate, the Com mission remains free to adjust sentencing levels accord ingly. See at 1.2 (acknowledging that “the guideline-writing process is evolutionary” and that the Commission functions “as a permanent agency to monitor sentencing practices in the federal courts throughout the nation”). Fourth, petitioners ask us to invoke the rule of lenity and construe (2006 ed.) in their favor, that is, in a way that will maximize the amount of available good time credit. We may assume for present purposes that (b) can be construed as imposing a criminal penalty. See 4 U.S. 381, (rule of lenity applies to “interpretations of the penalties” imposed by “criminal prohibitions”); but see (holding that (b) is not a criminal statute for the purposes of the rule of lenity). Even so, the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a “grievous ambiguity or uncertainty in the statute,” (1998) (internal quotation marks omitted), such that the Court must simply “ ‘guess as to what Congress intended.’ ” at ). See United States v. Hayes, 14 BARBER v. THOMAS Opinion of the Court 555 U. S. (2009) (slip op., at 13); United States v. R. L. C., Having so considered the statute, we do not believe that there remains a “grievous ambiguity or uncertainty” in the statutory provision before us. Nor need we now simply “guess” what the statute means. Finally, we note that petitioners urge us not to defer to the BOP’s implementation of In our view, the BOP’s calculation system applies that statute as its lan guage is most naturally read, and in accordance with what that language makes clear is its basic purpose. No one doubts that the BOP has the legal power to implement the statute in accordance with its language and purposes; hence we need not determine the extent to which Congress has granted the BOP authority to interpret the statute more broadly, or differently than it has done here. Cf. at 844–845. B Acknowledging that petitioners’ arguments cannot carry the day, the dissent has proposed a “third possibility,” post, at 2 (opinion of KENNEDY, J.), not raised by either party nor, to our knowledge, used elsewhere in the Crimi nal Code. The dissent reads the statutory phrase “term of imprisonment” to refer to “the administrative period along which progress toward eventual freedom is marked.” Post, at 3. It derives from this reading the following method of calculation as applied to our 10-year example. First, “[t]he sentence is divided into 10 365-day segments.” At the end of the first segment, a prisoner may receive up to 54 days of credit for good behavior. These credits immedi ately “go toward completion of the next year” so that the prisoner need only serve “another 311 days behind bars before the second year of his term of imprisonment is at an end.” This process repeats itself until the “10th segment,” in which a prisoner receives an unspecified Cite as: 560 U. S. (2010) 15 Opinion of the Court “credit in a prorated amount.” In the end, the pris oner will have served 10 “administrative segments,” ib collectively comprising 3,117 days in prison and 533 days of credit. The dissent claims “[r]eading ‘term of imprisonment’ this way is consistent with all parts of the statute.” Post, at 4. We see at least four problems. First, the opening sentence of (a) instructs that “[a] prisoner shall be released” upon “the expiration of the prisoner’s term of imprisonment, less any time credited” for good behavior. But if a prisoner’s “term of imprisonment” is the “period that a prisoner must complete in order to earn his free dom,” post, at 4, and it is “accounted for through a combi nation of prison time and credits,” post, at 3, then a pris oner should be released exactly at the end of his term of imprisonment (without any further adjustment). Because the dissent’s approach would require us to read words out of the statute, or give prisoners double credit, its definition cannot be used here. Second, (b)(1) tells us that a prisoner receives credit “at the end of each year” based on behavior “during that year.” Under the dissent’s approach, however, a prisoner may receive credit at the end of each “administra tive segmen[t]” presumably based on his behavior during that segment. And because an “administrative segmen[t]” is made up of some “combination of service and credits,” post, at 4, each one lasts less than a calendar year. We do not see how a system in which “a prisoner may complete a particular year of his term in less than 365 calendar days,” ib and receive full good time credit for doing so, can possibly represent the most natural reading of this statu tory language. Nor do we know, because the BOP has not had an opportunity to tell us, whether a system in which a “year” lasts anywhere from 311 to 365 calendar days (and in which the “years” of a single prisoner’s sentence may all be of different lengths), is easily administrable. (We doubt 16 BARBER v. THOMAS Opinion of the Court that this system will be more comprehensible to prisoners than one, like the BOP’s, that provides credit for actual years.) Third, under the dissent’s approach, credit is earned at different rates during a single sentence. For the first “administrative segmen[t]” in its 10-year example, the prisoner serves 365 days and earns 54 days of credit. The ratio of credit earned to days served is148. For the sec ond “administrative segmen[t],” the prisoner serves 311 days and earns 54 days of credit. This time, the ratio of credit earned to days served is174. (For the last “admin istrative segmen[t],” the dissent tells us the prisoner will receive “credit in a prorated amount,” but it does not tell us which ratio should be used for the proration. Post, at 3.) The use of different rates finds no support in the stat ute. The dissent objects that the statute “prescribes no particular rate,” post, at 7, but in fact it does—54 days of credit per year of good behavior—and it further requires that credit for the last year be “prorated” using the same proportion. Moreover, the dissent’s application of different rates leads to odd results. For example, a model prisoner sentenced on two separate 5-year terms (with a break in between) will serve a different number of days from one sentenced to a single 10-year term. How can this be if both prisoners are earning 54 days of credit for each of their 10 years in prison? Fourth, (b)(2) provides that good time credit “shall vest on the date the prisoner is released from custody.” (This provision does not apply to prisoners, like petition ers, who committed their offenses before it was amended in 1996, but the dissent plainly intends for its approach to apply more broadly. See post, at 9 (noting the effect on “almost 200,000 federal prisoners”).) Yet under the dis sent’s approach, credit appears to vest immediately. See post, at 3 (Days of credit for the first year “go toward completion of the next year” so that the prisoner “would Cite as: 560 U. S. (2010) 17 Opinion of the Court need another 311 days behind bars before the second year of his term of imprisonment is at an end”). And if it does not, then the situation quickly becomes complicated. What happens if, say, on the last day of the 10th “adminis trative segmen[t]” (somewhere in the 8th calendar year), a prisoner badly misbehaves and prison officials punish him by taking away all of his previously earned credit? Cf. 28 CFR (2009) (prescribing sanctions for prohibited acts). Does the BOP retroactively adjust the duration of all of his administrative segments to 365 days so that the prisoner now finds himself in the middle of the 8th “ad ministrative segmen[t]”? (Again we do not know if the BOP would find such a system administrable, and we doubt that this system would be more comprehensible to a prisoner.) If so, does the prisoner have a second opportu nity to earn credit for good behavior for the 9th “adminis trative segmen[t]” that he had previously completed but now must account for again? Cf. (b)(1) (“Credit that has not been earned may not later be granted”). Or, hav ing previously awarded (and taken away) credit for that segment, are prison authorities left without any incentive to offer for good behavior? Finally, the dissent, like petitioners, invokes the rule of lenity to support its interpretation. But, the best efforts of the dissent notwithstanding, we still see no “grievous ambiguity or uncertainty” that would trigger the rule’s application. We remain convinced that the BOP’s ap proach reflects the most natural reading of the statutory language and the most consistent with its purpose. What ever the merits of the dissent’s policy arguments, the statute does not require the BOP to accept them. For all of these reasons, we conclude that the BOP’s methodology is lawful. The Ninth Circuit’s judgment is Affirmed. 18 BARBER v. THOMAS Opinion of the Court Appendix to opinion of the Court APPENDIX A fuller example of the BOP’s method for calculat ing “credit for the last year or portion of a year of the term of imprisonment” The defendant is sentenced to 10 years’ imprisonment. As a prisoner he exhibits exemplary behavior and is awarded the maximum credit of 54 days at the end of each year served in prison. At the end of Year 8, the prisoner has 2 years remaining in his sentence and has accumu lated 432 days of good time credit. Because the difference between the time remaining in his sentence and the amount of accumulated credit (i.e., 730 - 432) is less than a year ( days), Year 9 is the last year he will spend in prison. (Year 10 has been completely offset by 365 of the 432 days of accumulated credit.) Further, Year 9 will be a partial year of days (the other 67 days of the year being offset by the remainder of the accumulated credit). Here is where the elementary algebra comes in. We know that x, the good time, plus y, the remaining time served, must add up to This gives us our first equa tion: x + y = We also know that the ratio of good time earned in the portion of the final year to the amount of time served in that year must equal the ratio of a full year’s good time credit to the amount of time served in a full year. The latter ratio is 54/365 or148. Thus, we know that x/y =148, or to put it another way, x =148y. Because we know the value of x in terms of y, we can make a substitu tion in our first equation to get148y + y = We then add the two y terms together (1.148y = ), and we solve for y, which gives us y = 260. Now we can plug that value into our first equation to solve for x (the good time credit). If we subtract 260 from we find that x = 38. The offender will have to serve 260 days in prison in Year 9, and he will receive 38 days additional good time Cite as: 560 U. S. (2010) 19 Opinion of the Court Appendix to opinion of the Court credit for that time served. The prisoner’s total good time is 0 days (432 + 38 = 0). His total time served is 3180 days. As a final matter, while we have described the foregoing as the method to calculate credit for the portion of the last year to more transparently track the relevant statutory language, we note that the mathematical formula can be used to calculate the amount of maximum available credit for an entire sentence. Using the equations supplied above, if we divide the total number of days in a sentence by 1.148, we get the minimum number of days that a defendant must serve in that sentence. If we then sub tract the number of days served from the total number of days in the sentence, we arrive at the maximum number of good time credit days the prisoner can earn. The stat ute, however, awards them on a yearly basis (but for the “last year or portion” thereof). Cite as: 560 U. S. (2010) 1 KENNEDY, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–5201 MICHAEL GARY BARBER, ET AL., PETITIONERS v. J. E.

Justice Kennedy

dissenting

Barber v. Thomas

2010-06-07

https://www.courtlistener.com/opinion/147954/barber-v-thomas/

https://www.courtlistener.com/api/rest/v3/clusters/147954/

2009-064

The Court has interpreted a federal sentencing statute in a manner that disadvantages almost 200,000 federal prisoners. See Pet. for Cert. 11, and n. 2. It adopts this reading despite the existence of an alternative interpreta tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to be read as the Court reads it. For the Court’s interpreta tion—an interpretation that in my submission is quite incorrect—imposes tens of thousands of years of additional prison time on federal prisoners according to a mathe matical formula they will be unable to understand. And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See id., at 11. The interpretation the Court adopts, moreover, will be devastating to the prisoners who have behaved the best and will undermine the purpose of the statute. These considerations, and those stated below, require this re spectful dissent. I The federal sentencing statute at issue here provides: 2 BARBER v. THOMAS KENNEDY, J., dissenting “[A] prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, be ginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, dur ing that year, the prisoner has displayed exemplary compliance with institutional disciplinary regula tions. . . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.” 18 U.S. C. §3624(b)(1) (emphasis added). According to the Court, the phrase “term of imprisonment” must mean “time actually served” the third time that it appears in this particular subsection. But the Court gives the phrase a different interpretation the first two times it is used in the very same sentence. This in itself indicates that something is quite wrong here. Petitioners invite the Court to read “term of imprison ment” to mean “the sentence imposed.” This, too, seems unworkable. And it can be acknowledged that the Court’s rejection of this interpretation is correct. The choice, however, is not just between the Court’s reading and that offered by petitioners. There is a third possibility, one more consistent with the statute than either of these two alternatives. A fair reading of the statute, and a necessary reading to accomplish its purpose best, is to interpret the phrase “term of imprisonment” to refer to the span of time that a prisoner must account for in order to obtain release. The length of the term is set at the outset by the criminal sentence imposed. The prisoner earns release when that term has been fully completed. Most of the term will be Cite as: 560 U. S. ____ (2010) 3 KENNEDY, J., dissenting satisfied through time spent behind bars. Assuming the prisoner is well behaved, however, he may earn good time credits along the way; and those credits may substitute for actual prison time. Each year of the term comprises a full 365 days, which must be accounted for through a combina tion of prison time and credits. Thus conceived, a pris oner’s “term” is the administrative period along which progress toward eventual freedom is marked. Consider the Court’s example of a prisoner subject to a ten-year sentence. See ante, at 2–4. The sentence is divided into ten 365-day segments. Each segment consti tutes a year of the term. The prisoner will spend the first 365 days behind bars. In the statute’s words, he has reached “the end of the first year of the term.” Now is the time for credit to be awarded, and he may receive up to 54 days if sufficiently well behaved. Because he has already completed a full year of his term, those credits go toward completion of the next year. If, based on good behavior, he has earned the maximum of 54 days, he would need an other 311 days behind bars before the second year of his term of imprisonment is at an end (because 54 + 311 = 365). If he has earned fewer than 54 days, a longer incar ceration will be required to reach 365. Regardless, once the prisoner reaches the end of the second year of his term, he will again be eligible to receive good time credits. This process repeats itself for the third year of the term, and so on. In the final year of his term (in this example, the tenth segment into which his term has been divided), the prisoner will receive credit in a prorated amount, to be awarded “within the last six weeks of the sentence.” This ensures that the prisoner does not reach the end of year ten, only to find that he has just earned 54 days of credit he no longer needs. The controlling rule is that each year of the prisoner’s term—each of the ten administrative segments— comprises 365 days that must be completed through a 4 BARBER v. THOMAS KENNEDY, J., dissenting combination of service and credits. By combining actual prison time with the credits he has earned, a prisoner may complete a particular year of his term in less than 365 calendar days. As a result, credits may enable a well behaved prisoner to complete his ten-year sentence before ten calendar years have elapsed. For a ten-year (3,650 day) sentence, a prisoner will serve 3,117 days behind bars if he earns a maximum of approximately 533 credits. This is 63 more days of credit than under the Court’s reading— more than 6 additional credit days for every year of the sentence imposed. Reading “term of imprisonment” this way is consistent with all parts of the statute. The prisoner receives his credit “at the end of each year of [his] term of imprison ment,” a process that “begin[s] at the end of the first year of the term.” Credit is only awarded if the prisoner has proven well behaved “during that year.” This interpreta tion fulfills the “objective of §3624”—rewarding a prisoner for exemplary conduct during the preceding year. See ante, at 8. This approach also has a textual integrity that the Court’s reading does not: It gives “term of imprisonment” the same meaning each time it is used by the statute. Every time it appears in §3624(b)(1), “term of imprison ment” refers to the administrative period that a prisoner must complete in order to earn his freedom. The Court, by contrast, would read this phrase to mean “time actually served” the third time it is used, but “the sentence im posed” the first two times it is used (“ ‘a prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of the prisoner’s life’ ”). See ante, at 8–9. The Court’s interpreta tion thus runs afoul of the “ ‘presumption that a given term is used to mean the same thing throughout a stat ute.’ ” Ante, at 9 (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)). The inconsistency here is particularly Cite as: 560 U. S. ____ (2010) 5 KENNEDY, J., dissenting egregious because all three uses appear in the same sen tence. See id., at 118 (“[The] presumption [is] surely at its most vigorous when a term is repeated within a given sentence”). The Court responds by noting another part of the stat ute, a provision stating that prisoners shall receive cloth ing, money, and transportation “[u]pon the release of [the] prisoner on the expiration of the prisoner’s term of impris onment.” §3624(d). A prisoner is released at the end of his actual time behind bars, says the Court, and so “term of imprisonment” must here refer to time actually served. Yet release also comes at the end of a prisoner’s “term” in the sense described above—that is, when the balance of the sentence has been reduced to zero through a combina tion of prison time and good time credits. Indeed, this administrative use of the phrase fits well with the word “expiration,” which in its most natural sense in this con text refers to the close of a formal accounting period. See Black’s Law Dictionary 619 (8th ed. 2004) (“A coming to an end; esp., a formal termination on a closing date”). By contrast, it is awkward at best to say, as the Court would have it, that a prisoner’s actual time behind bars is some thing that “expires.” The Court’s approach produces yet another oddity. The statute requires that prorated credit be awarded for “the last year or portion of a year of the term of imprisonment.” One might naturally assume that the last year of a ten year term would be year ten. That is how things work under the approach described above, in which a ten-year sentence is subdivided into ten administrative segments. But under the Court’s reading, a prisoner serving a ten year sentence will never reach year ten of his term; year ten simply does not exist. According to the Court, year nine is the final year, and even year nine is not a full year: It lasts “no more than 298 days.” Ante, at 3. If this sounds confusing, it will be all the more so to the prisoner 6 BARBER v. THOMAS KENNEDY, J., dissenting who has just received his sentence and turns to the statute books to figure out when to expect his freedom. The Court does not even attempt to defend these flaws. Instead, it points to four supposed defects in the approach described above. None withstands examination. First, the Court notes that the statute requires the release of a prisoner “upon ‘the expiration of the prisoner’s term of imprisonment, less any time credited’ for good behavior.” Ante, at 15 (quoting §3624(a)). But if “term of imprisonment” truly refers to the entire span that a pris oner must complete to earn his freedom—a period that accounts both for actual time and for good time credits— then why would the “less any time credited” language be appropriate? The answer is that this provision—which appears at the very beginning of the section entitled “Re lease of a prisoner”—announces to a prisoner when release may be expected: when the prisoner’s term expires, taking into account credit days “as provided in subsection (b).” §3624(a) (bold face deleted). This use of language is com mon. A debtor who says “I will write a check for what I owe you, less what you owe me” is simply saying “I will pay what I owe, taking into account your debts to me.” Perhaps the same meaning could have been conveyed using different words, but this is hardly probative. Second, the Court alleges that the above approach con flicts with the statute’s requirement that credit be awarded “at the end of each year” based upon behavior “during that year.” After all, if a year of the term can be satisfied in part through credit, then it may last less than a full calendar year. Yet the statute does not require that credit be awarded at the end of a calendar year for good behavior during a calendar year. What it requires is that credit be awarded “at the end of each year of the prisoner’s term of imprisonment” for good behavior “during that year.” And this is precisely what the above approach does. Third, the Court frets that, under the approach above, Cite as: 560 U. S. ____ (2010) 7 KENNEDY, J., dissenting prisoners will earn credit at different rates during a single sentence. It admonishes that “[t]he use of different rates finds no support in the statute.” Ante, at 16. This re sponse is telling. The statute, in fact, prescribes no par ticular rate—and certainly no formula based on a rate— except as embodied in one clear directive: Prisoners are eligible to earn “up to 54 days at the end of each year of the prisoner’s term of imprisonment.” As to that com mand, the above approach is perfectly faithful. Fourth, the Court suggests that the above approach causes credit to vest immediately, contrary to the statute. Again, this is not true. As per the statute, credit only vests “on the date the prisoner is released from custody,” §3624(b)(2), meaning that it can be revoked at any time before that date. This gives prisoners approaching their release date an extra incentive to behave. As a fallback, the Court wonders what would happen if a prisoner misbehaved on the final day of his ten-year sentence. Would the Bureau of Prisons (BOP) be forced to “retroactively adjust the duration of all of his [term years] to 365 days”? Ante, at 17. The answer is what one might suppose: A prisoner whose credits are revoked will find himself precisely where he would have been if those cred its had never been earned. All years of the term remain 365 days, as they always have. But a misbehaving pris oner who had formerly earned, say, 500 credits will find himself without the benefit of those 500 days. That will leave him with more of his term to complete—500 days more, to be precise. If he behaves well again, he can re sume earning credit for the remainder of his term, but he has lost the opportunity to earn credits for any prior years. See §3624(b)(1). This is not at all confusing for a prisoner; and certainly it is as straightforward, if not more so, than the Court’s approach. The Court’s view causes a prisoner’s “term of imprisonment” to shrink over time according to an algebraic formula, only to expand again if he misbe 8 BARBER v. THOMAS KENNEDY, J., dissenting haves. Finally, the Court speculates that BOP might find the above approach difficult to administer. The Court identi fies no basis for this claim, nor does one exist. The infor mation used to calculate a prisoner’s term under the above approach is the same as it is under the Court’s approach. True, a prisoner may become eligible to be awarded credit on different calendar days during the course of his term. But under the Court’s approach, this also happens when awarding credit in the final year. And, it goes without saying, federal prisoners begin their incarceration on different calendar days anyway, so that under any ap proach, BOP will be forced to evaluate prisoners through out the calendar year. II The Court’s reading of §3624(b)(1), therefore, is less consistent with the text than the reading explained above. But even if these interpretations were in equipoise, under any fair application the rule of lenity should tip the bal ance in petitioners’ favor. When a penal statute is suscep tible of two interpretations, the one more favorable to the defendant must be chosen unless “text, structure, and history . . . establish that the [harsher] position is unam biguously correct.” United States v. Granderson, 511 U.S. 39, 54 (1994). Resolving ambiguity in favor of lenity en sures that statutes provide “fair warning[,] . . . in language that the common world will understand, of what the law intends to do if a certain line is passed.” United States v. Bass, 404 U.S. 336, 348 (1971) (internal quotation marks omitted). The rule thus applies “not only to interpreta tions of the substantive ambit of criminal prohibitions, but also to the penalties they impose.” Bifulco v. United States, 447 U.S. 381, 387 (1980). The Court assumes without deciding that §3624(b) is penal in nature. See ante, at 13. No assumption is neces Cite as: 560 U. S. ____ (2010) 9 KENNEDY, J., dissenting sary: The statutory provision awarding good time credits “in fact is one determinant of [a] prison term,” so that a prisoner’s “effective sentence is altered once this determi nant is changed.” Weaver v. Graham, 450 U.S. 24, 32 (1981). In Weaver, the Court considered whether an amendment to Florida’s statutory formula for calculating good time credits implicated the Ex Post Facto Clause. The Court concluded that it did, as the new statute “sub stantially alter[ed] the consequences attached to a crime already completed, and therefore change[d] ‘the quantum of punishment.’ ” Id., at 33 (quoting Dobbert v. Florida, 432 U.S. 282, 294 (1977)). For the same reason, the penal effect of §3624(b)(1) is substantial enough to implicate the rule of lenity. We should not disadvantage almost 200,000 federal prisoners unless Congress clearly warned them they would face that harsh result. III The Government—although not the Court—argues that we should embrace its interpretation out of deference to BOP. BOP has been charged by the Attorney General with responsibility for “[a]pproving inmate disciplinary and good time regulations.” 28 CFR §0.96(s) (2009). BOP has long followed the same credit-calculation method now advocated by the Court. The Government argues that we should defer to BOP’s choice as a permissible exercise of its delegated responsibility. This argument fails on multiple levels. There is no indication that BOP has exercised the sort of interpretive authority that would merit deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The statute does not create a legis lative gap for BOP to fill. To the contrary, the procedures that govern the timing of credit awards are spelled out in great detail. Cf. Lopez v. Davis, 531 U.S. 230, 241–242 (2001) (where statute says that BOP “may” grant early 10 BARBER v. THOMAS KENNEDY, J., dissenting release to certain prisoners, without specifying further criteria, Congress deliberately created a “statutory gap”). The statute even goes so far as to explain what to do “[i]f the date for a prisoner’s release falls on a Saturday, a Sunday, or a legal holiday.” §3624(a). This legislative specificity as to timing contrasts with other provisions that do delegate authority to BOP. E.g., §3624(b)(1) (awarding of credit is “subject to determination” by BOP that the prisoner “has displayed exemplary compliance with institutional disciplinary regulations”). BOP has not claimed that its view is the product of any “formal administrative procedure tending to foster the fairness and deliberation that should underlie a pro nouncement” with the force of law. United States v. Mead Corp., 533 U.S. 218, 230 (2001). In 2005, BOP made final an administrative rule adopting its preferred methodology. 70 Fed. Reg. 66752 (adopting 28 CFR §523.20). But when pressed during an earlier stage of this litigation, BOP conceded that it had “failed to articulate in the adminis trative record the rationale upon which it relied when it promulgated” the rule. Tablada v. Thomas, 533 F.3d 800, 805 (CA9 2008). The Court of Appeals accepted BOP’s concession, ibid., and that aspect of its ruling has not been appealed. As a fallback position, the Government argues that BOP’s interpretation should receive at least some defer ence under Skidmore v. Swift & Co., 323 U.S. 134 (1944). But under Skidmore, an agency decision only merits “re spect proportional to its ‘power to persuade.’ ” Mead, supra, at 235 (quoting Skidmore, supra, at 140). BOP’s position is of long standing, but the administrative record is noteworthy for what it does not contain—namely, any reasoned justification for preferring BOP’s methodology over statutorily permissible alternatives. BOP has consis tently adhered to its mistaken belief that its approach is the only one that can be squared with the text. See 62 Cite as: 560 U. S. ____ (2010) 11 KENNEDY, J., dissenting Fed. Reg. 50786 (1997) (explanation to interim rule assert ing that the correct methodology “had been clearly stated by statute since the implementation of the Sentencing Reform Act of 1984”). For example, at no point did BOP consider, much less consciously reject, the interpretation outlined here. Cf. Reno v. Koray, 515 U.S. 50, 60–61 (1995) (deferring to BOP’s reasoned decision to reject one interpretation in favor of another). An agency need not consider all possible alternatives. But deference is not owed to an agency view, however consistently held, that from the start has been premised on legal error. See Mead, supra, at 228; Skidmore, supra, at 140. * * * The straightforward interpretation urged here accords with the purpose of the statute, which is to give prisoners incentive for good behavior and dignity from its promised reward. Prisoners can add 54 days to each year. And when they do so, they have something tangible. In place of that simple calculation, of clear meaning, of a calendar that can be marked, the Court insists on something differ ent. It advocates an interpretation that uses different definitions for the same phrase in the same sentence; denies prisoners the benefit of the rule of lenity; and caps off its decision with an appendix that contains an alge braic formula to hang on a cell wall. To a prisoner, time behind bars is not some theoreti cal or mathematical concept. It is something real, even terrifying. Survival itself may be at stake. See Dept. of Justice, Bureau of Justice Statistics, C. Mumola, Suicide and Homicide in State Prisons and Local Jails (NCJ 210036, Aug. 2005), online at http:// bjs.ojp.usdoj.gov/content/pub/pdf/shsplj.pdf (all Internet materials as visited June 2, 2010, and available in Clerk of Court’s case file) (prison homicide rates); Na tional Prison Rape Elimination Commission Re 12 BARBER v. THOMAS KENNEDY, J., dissenting port, p. 4 (June 2009) (citing a national survey estimating that 60,500 state and federal prisoners had been sexually abused during the preceding year). To this time, the Court adds days—compounded to years. We should not embrace this harsh result where Congress itself has not done so in clear terms. I would reverse the judgment of the Court of Appeals

The Court has interpreted a federal sentencing statute in a manner that disadvantages almost 200,000 federal prisoners. See Pet. for Cert. 11, and n. 2. It adopts this reading despite the existence of an alternative interpreta tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to be read as the Court reads it. For the Court’s interpreta tion—an interpretation that in my submission is quite incorrect—imposes tens of thousands of years of additional prison time on federal prisoners according to a mathe matical formula they will be unable to understand. And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See The interpretation the Court adopts, moreover, will be devastating to the prisoners who have behaved the best and will undermine the purpose of the statute. These considerations, and those stated below, require this re spectful dissent. I The federal sentencing statute at issue here provides: 2 BARBER v. THOMAS KENNEDY, J., dissenting “[A] prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, be ginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, dur ing that year, the prisoner has displayed exemplary compliance with institutional disciplinary regula tions. [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.” 18 U.S. C. (emphasis added). According to the Court, the phrase “term of imprisonment” must mean “time actually served” the third time that it appears in this particular subsection. But the Court gives the phrase a different interpretation the first two times it is used in the very same sentence. This in itself indicates that something is quite wrong here. Petitioners invite the Court to read “term of imprison ment” to mean “the sentence imposed.” This, too, seems unworkable. And it can be acknowledged that the Court’s rejection of this interpretation is correct. The choice, however, is not just between the Court’s reading and that offered by petitioners. There is a third possibility, one more consistent with the statute than either of these two alternatives. A fair reading of the statute, and a necessary reading to accomplish its purpose best, is to interpret the phrase “term of imprisonment” to refer to the span of time that a prisoner must account for in order to obtain release. The length of the term is set at the outset by the criminal sentence imposed. The prisoner earns release when that term has been fully completed. Most of the term will be Cite as: 560 U. S. (2010) 3 KENNEDY, J., dissenting satisfied through time spent behind bars. Assuming the prisoner is well behaved, however, he may earn good time credits along the way; and those credits may substitute for actual prison time. Each year of the term comprises a full 365 days, which must be accounted for through a combina tion of prison time and credits. Thus conceived, a pris oner’s “term” is the administrative period along which progress toward eventual freedom is marked. Consider the Court’s example of a prisoner subject to a ten-year sentence. See ante, at 2–4. The sentence is divided into ten 365-day segments. Each segment consti tutes a year of the term. The prisoner will spend the first 365 days behind bars. In the statute’s words, he has reached “the end of the first year of the term.” Now is the time for credit to be awarded, and he may receive up to 54 days if sufficiently well behaved. Because he has already completed a full year of his term, those credits go toward completion of the next year. If, based on good behavior, he has earned the maximum of 54 days, he would need an other 311 days behind bars before the second year of his term of imprisonment is at an end (because 54 + 311 = 365). If he has earned fewer than 54 days, a longer incar ceration will be required to reach 365. Regardless, once the prisoner reaches the end of the second year of his term, he will again be eligible to receive good time credits. This process repeats itself for the third year of the term, and so on. In the final year of his term (in this example, the tenth segment into which his term has been divided), the prisoner will receive credit in a prorated amount, to be awarded “within the last six weeks of the sentence.” This ensures that the prisoner does not reach the end of year ten, only to find that he has just earned 54 days of credit he no longer needs. The controlling rule is that each year of the prisoner’s term—each of the ten administrative segments— comprises 365 days that must be completed through a 4 BARBER v. THOMAS KENNEDY, J., dissenting combination of service and credits. By combining actual prison time with the credits he has earned, a prisoner may complete a particular year of his term in less than 365 calendar days. As a result, credits may enable a well behaved prisoner to complete his ten-year sentence before ten calendar years have elapsed. For a ten-year (3,650 day) sentence, a prisoner will serve 3,117 days behind bars if he earns a maximum of approximately 533 credits. This is 63 more days of credit than under the Court’s reading— more than 6 additional credit days for every year of the sentence imposed. Reading “term of imprisonment” this way is consistent with all parts of the statute. The prisoner receives his credit “at the end of each year of [his] term of imprison ment,” a process that “begin[s] at the end of the first year of the term.” Credit is only awarded if the prisoner has proven well behaved “during that year.” This interpreta tion fulfills the “objective of a prisoner for exemplary conduct during the preceding year. See ante, at 8. This approach also has a textual integrity that the Court’s reading does not: It gives “term of imprisonment” the same meaning each time it is used by the statute. Every time it appears in “term of imprison ment” refers to the administrative period that a prisoner must complete in order to earn his freedom. The Court, by contrast, would read this phrase to mean “time actually served” the third time it is used, but “the sentence im posed” the first two times it is used (“ ‘a prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of the prisoner’s life’ ”). See ante, at 8–9. The Court’s interpreta tion thus runs afoul of the “ ‘presumption that a given term is used to mean the same thing throughout a stat ute.’ ” Ante, at 9 (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)). The inconsistency here is particularly Cite as: 560 U. S. (2010) 5 KENNEDY, J., dissenting egregious because all three uses appear in the same sen tence. See 8 (“[The] presumption [is] surely at its most vigorous when a term is repeated within a given sentence”). The Court responds by noting another part of the stat ute, a provision stating that prisoners shall receive cloth ing, money, and transportation “[u]pon the release of [the] prisoner on the expiration of the prisoner’s term of impris onment.” A prisoner is released at the end of his actual time behind bars, says the Court, and so “term of imprisonment” must here refer to time actually served. Yet release also comes at the end of a prisoner’s “term” in the sense described above—that is, when the balance of the sentence has been reduced to zero through a combina tion of prison time and good time credits. Indeed, this administrative use of the phrase fits well with the word “expiration,” which in its most natural sense in this con text refers to the close of a formal accounting period. See Black’s Law Dictionary 619 (8th ed. 2004) (“A coming to an end; esp., a formal termination on a closing date”). By contrast, it is awkward at best to say, as the Court would have it, that a prisoner’s actual time behind bars is some thing that “expires.” The Court’s approach produces yet another oddity. The statute requires that prorated credit be awarded for “the last year or portion of a year of the term of imprisonment.” One might naturally assume that the last year of a ten year term would be year ten. That is how things work under the approach described above, in which a ten-year sentence is subdivided into ten administrative segments. But under the Court’s reading, a prisoner serving a ten year sentence will never reach year ten of his term; year ten simply does not exist. According to the Court, year nine is the final year, and even year nine is not a full year: It lasts “no more than 298 days.” Ante, at 3. If this sounds confusing, it will be all the more so to the prisoner 6 BARBER v. THOMAS KENNEDY, J., dissenting who has just received his sentence and turns to the statute books to figure out when to expect his freedom. The Court does not even attempt to defend these flaws. Instead, it points to four supposed defects in the approach described above. None withstands examination. First, the Court notes that the statute requires the release of a prisoner “upon ‘the expiration of the prisoner’s term of imprisonment, less any time credited’ for good behavior.” Ante, at 15 (quoting But if “term of imprisonment” truly refers to the entire span that a pris oner must complete to earn his freedom—a period that accounts both for actual time and for good time credits— then why would the “less any time credited” language be appropriate? The answer is that this provision—which appears at the very beginning of the section entitled “Re lease of a prisoner”—announces to a prisoner when release may be expected: when the prisoner’s term expires, taking into account credit days “as provided in subsection (b).” (bold face deleted). This use of language is com mon. A debtor who says “I will write a check for what I owe you, less what you owe me” is simply saying “I will pay what I owe, taking into account your debts to me.” Perhaps the same meaning could have been conveyed using different words, but this is hardly probative. Second, the Court alleges that the above approach con flicts with the statute’s requirement that credit be awarded “at the end of each year” based upon behavior “during that year.” After all, if a year of the term can be satisfied in part through credit, then it may last less than a full calendar year. Yet the statute does not require that credit be awarded at the end of a calendar year for good behavior during a calendar year. What it requires is that credit be awarded “at the end of each year of the prisoner’s term of imprisonment” for good behavior “during that year.” And this is precisely what the above approach does. Third, the Court frets that, under the approach above, Cite as: 560 U. S. (2010) 7 KENNEDY, J., dissenting prisoners will earn credit at different rates during a single sentence. It admonishes that “[t]he use of different rates finds no support in the statute.” Ante, at 16. This re sponse is telling. The statute, in fact, prescribes no par ticular rate—and certainly no formula based on a rate— except as embodied in one clear directive: Prisoners are eligible to earn “up to 54 days at the end of each year of the prisoner’s term of imprisonment.” As to that com mand, the above approach is perfectly faithful. Fourth, the Court suggests that the above approach causes credit to vest immediately, contrary to the statute. Again, this is not true. As per the statute, credit only vests “on the date the prisoner is released from custody,” meaning that it can be revoked at any time before that date. This gives prisoners approaching their release date an extra incentive to behave. As a fallback, the Court wonders what would happen if a prisoner misbehaved on the final day of his ten-year sentence. Would the Bureau of Prisons (BOP) be forced to “retroactively adjust the duration of all of his [term years] to 365 days”? Ante, at 17. The answer is what one might suppose: A prisoner whose credits are revoked will find himself precisely where he would have been if those cred its had never been earned. All years of the term remain 365 days, as they always have. But a misbehaving pris oner who had formerly earned, say, 500 credits will find himself without the benefit of those 500 days. That will leave him with more of his term to complete—500 days more, to be precise. If he behaves well again, he can re sume earning credit for the remainder of his term, but he has lost the opportunity to earn credits for any prior years. See This is not at all confusing for a prisoner; and certainly it is as straightforward, if not more so, than the Court’s approach. The Court’s view causes a prisoner’s “term of imprisonment” to shrink over time according to an algebraic formula, only to expand again if he misbe 8 BARBER v. THOMAS KENNEDY, J., dissenting haves. Finally, the Court speculates that BOP might find the above approach difficult to administer. The Court identi fies no basis for this claim, nor does one exist. The infor mation used to calculate a prisoner’s term under the above approach is the same as it is under the Court’s approach. True, a prisoner may become eligible to be awarded credit on different calendar days during the course of his term. But under the Court’s approach, this also happens when awarding credit in the final year. And, it goes without saying, federal prisoners begin their incarceration on different calendar days anyway, so that under any ap proach, BOP will be forced to evaluate prisoners through out the calendar year. II The Court’s reading of therefore, is less consistent with the text than the reading explained above. But even if these interpretations were in equipoise, under any fair application the rule of lenity should tip the bal ance in petitioners’ favor. When a penal statute is suscep tible of two interpretations, the one more favorable to the defendant must be chosen unless “text, structure, and history establish that the [harsher] position is unam biguously correct.” United States v. Granderson, 511 U.S. 39, 54 (1994). Resolving ambiguity in favor of lenity en sures that statutes provide “fair warning[,] in language that the common world will understand, of what the law intends to do if a certain line is passed.” United States v. Bass, (internal quotation marks omitted). The rule thus applies “not only to interpreta tions of the substantive ambit of criminal prohibitions, but also to the penalties they impose.” The Court assumes without deciding that is penal in nature. See ante, at 13. No assumption is neces Cite as: 560 U. S. (2010) 9 KENNEDY, J., dissenting sary: The statutory provision awarding good time credits “in fact is one determinant of [a] prison term,” so that a prisoner’s “effective sentence is altered once this determi nant is changed.” (1981). In Weaver, the Court considered whether an amendment to Florida’s statutory formula for calculating good time credits implicated the Ex Post Facto Clause. The Court concluded that it did, as the new statute “sub stantially alter[ed] the consequences attached to a crime already completed, and therefore change[d] ‘the quantum of punishment.’ ” ). For the same reason, the penal effect of is substantial enough to implicate the rule of lenity. We should not disadvantage almost 200,000 federal prisoners unless Congress clearly warned them they would face that harsh result. III The Government—although not the Court—argues that we should embrace its interpretation out of deference to BOP. BOP has been charged by the Attorney General with responsibility for “[a]pproving inmate disciplinary and good time regulations.” (s) (2009). BOP has long followed the same credit-calculation method now advocated by the Court. The Government argues that we should defer to BOP’s choice as a permissible exercise of its delegated responsibility. This argument fails on multiple levels. There is no indication that BOP has exercised the sort of interpretive authority that would merit deference under Chevron U. S. A. The statute does not create a legis lative gap for BOP to fill. To the contrary, the procedures that govern the timing of credit awards are spelled out in great detail. Cf. 241–242 (where statute says that BOP “may” grant early 10 BARBER v. THOMAS KENNEDY, J., dissenting release to certain prisoners, without specifying further criteria, Congress deliberately created a “statutory gap”). The statute even goes so far as to explain what to do “[i]f the date for a prisoner’s release falls on a Saturday, a Sunday, or a legal holiday.” This legislative specificity as to timing contrasts with other provisions that do delegate authority to BOP. E.g., (awarding of credit is “subject to determination” by BOP that the prisoner “has displayed exemplary compliance with institutional disciplinary regulations”). BOP has not claimed that its view is the product of any “formal administrative procedure tending to foster the fairness and deliberation that should underlie a pro nouncement” with the force of law. United In 2005, BOP made final an administrative rule adopting its preferred methodology. (adopting ). But when pressed during an earlier stage of this litigation, BOP conceded that it had “failed to articulate in the adminis trative record the rationale upon which it relied when it promulgated” the rule. 805 (CA9 2008). The Court of Appeals accepted BOP’s concession, ib and that aspect of its ruling has not been appealed. As a fallback position, the Government argues that BOP’s interpretation should receive at least some defer ence under 3 U.S. 134 But under an agency decision only merits “re spect proportional to its ‘power to persuade.’ ” (quoting ). BOP’s position is of long standing, but the administrative record is noteworthy for what it does not contain—namely, any reasoned justification for preferring BOP’s methodology over statutorily permissible alternatives. BOP has consis tently adhered to its mistaken belief that its approach is the only one that can be squared with the text. See 62 Cite as: 560 U. S. (2010) 11 KENNEDY, J., dissenting Fed. Reg. 50786 (1997) (explanation to interim rule assert ing that the correct methodology “had been clearly stated by statute since the implementation of the Sentencing Reform Act of 1984”). For example, at no point did BOP consider, much less consciously reject, the interpretation outlined here. Cf. 60–61 (1995) (deferring to BOP’s reasoned decision to reject one interpretation in favor of another). An agency need not consider all possible alternatives. But deference is not owed to an agency view, however consistently held, that from the start has been premised on legal error. See ; * * * The straightforward interpretation urged here accords with the purpose of the statute, which is to give prisoners incentive for good behavior and dignity from its promised reward. Prisoners can add 54 days to each year. And when they do so, they have something tangible. In place of that simple calculation, of clear meaning, of a calendar that can be marked, the Court insists on something differ ent. It advocates an interpretation that uses different definitions for the same phrase in the same sentence; denies prisoners the benefit of the rule of lenity; and caps off its decision with an appendix that contains an alge braic formula to hang on a cell wall. To a prisoner, time behind bars is not some theoreti cal or mathematical concept. It is something real, even terrifying. Survival itself may be at stake. See Dept. of Justice, Bureau of Justice Statistics, C. Mumola, Suicide and Homicide in State Prisons and Local Jails (NCJ 210036, Aug. 2005), online at http:// bjs.ojp.usdoj.gov/content/pub/pdf/shsplj.pdf (all Internet materials as visited June 2, 2010, and available in Clerk of Court’s case file) (prison homicide rates); Na tional Prison Rape Elimination Commission Re 12 BARBER v. THOMAS KENNEDY, J., dissenting port, p. 4 (June 2009) (citing a national survey estimating that 60,500 state and federal prisoners had been sexually abused during the preceding year). To this time, the Court adds days—compounded to years. We should not embrace this harsh result where Congress itself has not done so in clear terms. I would reverse the judgment of the Court of Appeals

per_curiam

per_curiam

Leavitt v. Jane L.

1996-06-17

https://www.courtlistener.com/opinion/118046/leavitt-v-jane-l/

https://www.courtlistener.com/api/rest/v3/clusters/118046/

1995-073

The State of Utah seeks review of a ruling by the Court of Appeals for the Tenth Circuit which declared invalid a provision of Utah law regulating abortions "[a]fter 20 weeks gestational age." Utah Code Ann. § 76-7-302(3) (1995). *138 The court made that declaration, not on the ground that the provision violates federal law, but rather on the ground that the provision was not severable from another provision of the same statute, purporting to regulate abortions up to 20 weeks' gestational age, which had been struck down as unconstitutional. The court's severability ruling was based on its view that the Utah Legislature would not have wanted to regulate the later-term abortions unless it could regulate the earlier-term abortions as well. Whatever the validity of such speculation as a general matter, in the present case it is flatly contradicted by a provision in the very part of the Utah Code at issue, explicitly stating that each statutory provision was to be regarded as having been enacted independently of the others. Because we regard the Court of Appeals' determination as to the Utah Legislature's intent to be irreconcilable with that body's own statement on the subject, we grant the petition for certiorari as to this aspect of the judgment of the Court of Appeals, and summarily reverse. Utah law, as amended by legislation enacted in 1991, establishes two regimes of regulation for abortion, based on the term of the pregnancy. With respect to pregnancies 20 weeks old or less, § 302(2) permits abortions only under five enumerated circumstances, Utah Code Ann. § 76-7-302(2) (1995). With respect to pregnancies of more than 20 weeks, § 302(3) permits abortions under only three of the five circumstances specified in § 302(2). § 76-7-302(3).[1] In the *139 present suit for declaratory and injunctive relief, the District Court for the District of Utah held § 302(2) to be unconstitutional, but § 302(3) to be both constitutional and severable— i. e., enforceable despite the invalidation of the other provision. Jane L. v. Bangerter, 809 F. Supp. 865, 870 (1992). Upon appeal by the plaintiffs with regard to the latter provision, the Court of Appeals for the Tenth Circuit held that it could not be enforced, regardless of its constitutionality, because it was not severable from the invalidated portion of the law. Jane L. v. Bangerter, 61 F.3d 1493, 1499 (1995). The State argues that that conclusion is simply unsustainable in light of the Utah Legislature's express indication to the contrary, and we agree. Severability is of course a matter of state law. In Utah, as the Court of Appeals acknowledged, the matter "is determined first and foremost by answering the following question: Would the legislature have passed the statute without the unconstitutional section?" Id., at 1497 (citing Stewart v. Utah Public Service Comm'n, 885 P.2d 759, 779 (Utah 1994)). A provision of the abortion part of the Utah Code, to which these two sections were added, answers that question. Section 317 provides: "If any one or more provision, section, subsection, sentence, clause, phrase or word of this part or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be *140 severable and the balance of this part shall remain effective notwithstanding such unconstitutionality. The leg- islature hereby declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sen- tence, clause, phrase, or word be declared unconstitu- tional. " Utah Code Ann. § 76-7-317 (1995) (emphasis added). In the face of this statement by the Utah Legislature of its own intent in enacting regulations of abortion, the Court of Appeals nonetheless concluded that §§ 302(2) and 302(3) were not severable because the Utah Legislature did not intend them to be so. The Court of Appeals' opinion not only did not regard the explicit language of § 317 as determinative—it did not even use it as the point of departure for addressing the severability question. It understood Utah law as instructing courts to "subordinate severability clauses, which evince the legislature's intent regarding the structure of the statute, to the legislature's overarching substantive intentions." 61 F.3d, at 1499 (emphasis added). The court divined in the 1991 amendments a "substantive intent" to prohibit virtually all abortions, see id., at 1497-1498, and went on to conclude that since, in its view, severing § 302(2) from § 302(3) would frustrate this overarching purpose, both provisions had to stand or fall together, see id., at 1499. We believe that the Court of Appeals erred at both steps of this progression. The dichotomy between "structural" and "substantive" intents is nowhere to be found in the Utah cases cited as authority by the Court of Appeals. Indeed, none of those cases even speaks in terms of "conflicts among legislative intentions," id., at 1498. The cases do support the proposition that, "even where a savings clause exist[s], where the provisions of the statute are interrelated, it is not within the scope of th[e] court's function to select the valid portions of *141 the act and conjecture that they should stand independently of the portions which are invalid." State v. Salt Lake City, 445 P.2d 691, 696 (Utah 1968). See also Salt Lake City v. International Assn. of Firefighters, 563 P.2d 786, 791 (Utah 1977); Carter v. Beaver County Service Area No. One, 399 P.2d 440, 441 (Utah 1965). But those concerns are absent from this case, for two reasons. First, because there is no need to resort to "conjecture": The legislature's abortion laws include not merely the standard "saving" clause, but a provision that could not be clearer in its message that the legislature "would have passed [every aspect of the law] irrespective of the fact that any one or more provision . . . be declared unconstitutional." § 76-7-317.[2] And second, because the two sections at issue here are not "interrelated" in any relevant sense—i. e., in the sense of being so interdependent that the remainder of the statute cannot function effectively without the invalidated provision, or in the sense that the invalidated provision could be regarded as part of a legislative compromise, extracted in exchange for the inclusion of other provisions of the statute.[3] Nothing like that appears here. The Court of Appeals described § 302(3) as *142 "modif[ying]" § 302(2), and concluded that, "[w]ith the nullification of the abortion ban in section 302(2), the statute was gutted, and section 302(3) was left purposeless without an abortion ban to modify." 61 F.3d, at 1498. But as examination of the provisions makes apparent, see n. 1, supra, § 302(3) cannot possibly be said to "modify" § 302(2) in the sense of being an adjunct to it, as an adjective "modifies" a noun. Rather, it can be said to "modify" § 302(2) only in the sense of altering its disposition—permitting, for post-20week abortions, some but not all of the justifications allowed (for earlier-term abortions) by § 302(2). It is impossible to see how this could lead to the conclusion that § 302(3) is left "purposeless" when § 302(2) is declared inoperative. Of course § 302(3) does incorporate by reference permissible justifications for abortion set forth in § 302(2), instead of repeating them verbatim, but this drafting device can hardly be thought to establish such "interdependence" that § 302(3) becomes "purposeless" when § 302(2) is unenforceable. To the contrary, § 302(3) sets out in straightforward and selfoperative fashion the circumstances under which an abortion may be performed "[a]fter 20 weeks gestational age." But even if the Court of Appeals were correct in treating § 317 like an ordinary saving clause; even if it were right in believing that there existed the "interrelationship" between §§ 302(2) and 302(3) that would permit an ordinary saving clause to be disregarded; and even if it had not invented the notion of "structural-substantive" dichotomy; the reasoning by which it concluded that the "substantive" intent of the Utah Legislature was to forgo all regulation of abortion unless it could obtain total regulation is flawed. The court reasoned that, because the intent of the 1991 amendments was "to prohibit all abortions, regardless of when they occur during the pregnancy, except in the few specified circumstances," 61 F.3d, at 1497, and because §§ 302(2) and 302(3) "operated as a unified expression of [that] intent," ibid., for *143 the court to separate § 302(2) from § 302(3) based on the unconstitutionality of the former would "clearly undermin[e] the legislative purpose to ban most abortions," id., at 1498.[4] This mode of analysis, if carried out in every case, would operate to defeat every claim of severability. Every legislature that adopts, in a single enactment, provision A plus provision B intends (A+B); and that enactment, which reads (A+B), is invariably a "unified expression of that intent," so that taking away A from (A+B), leaving only B, will invariably "clearly undermine the legislative purpose" to enact (A+B). But the fallacy in applying this reasoning to the severability question is that it is not the severing that will take away A from (A+B) and thus foil the legislature's intent; it is the invalidation of A (in this case, because of its unconstitutionality) which does so—an invalidation that occurs whether or not the two provisions are severed. The relevant question, in other words, is not whether the legislature would prefer (A+B) to B, because by reason of the invalidation of A that choice is no longer available. The relevant question is whether the legislature would prefer not to have B if it could not have A as well. Here, the Court of Appeals in effect said yes. It determined that a legislature bent *144 on banning almost all abortions would prefer, if it could not have that desire, to ban no abortions at all rather than merely some. This notion is, at the very least, questionable when considered in isolation. But when it is put forward in the face of a statutory text that explicitly states the opposite, it is plainly error. * * * We have summarily set aside unsupportable judgments in cases involving only individual claims, see, e. g., Board of Ed. of Rogers v. McCluskey, 458 U.S. 966, 969-971 (1982); National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc., 425 U.S. 460, 460-461 (1976). Much more is that appropriate when what is at issue is the total invalidation of a statewide law, see, e. g., Idaho Dept. of Employment v. Smith, 434 U.S. 100, 100-102 (1977). To be sure, we do not normally grant petitions for certiorari solely to review what purports to be an application of state law; but we have done so, see Steele v. General Mills, Inc., 329 U.S. 433, 438, 440-441 (1947); Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U.S. 103, 107 (1939),[5] and undoubtedly should do so where the alternative is allowing *145 blatant federal-court nullification of state law. The dissent argues that "[t]he doctrine of judicial restraint" weighs against review, post, at 146, but it is an odd notion of judicial restraint that would compel us to cast a blind eye on overreaching by lower federal courts. The fact observed by the dissent, that the "underlying substantive issue in this case" is a controversial one, generating "a kind of `hydraulic pressure' that motivates ad hoc decisionmaking," ibid., provides a greater, not a lesser, justification for reversing state-law determinations that seem plainly wrong. In our view, these considerations combine to make this an "extraordinary cas[e]" worth our effort of summary review, post, at 147. Finally, the dissent's appeal to the supposed greater expertise of courts of appeals regarding state law is particularly weak (if not indeed counter indicative) where a Court of Appeals panel consisting of judges from Oklahoma, Colorado, and Kansas has reversed the District Court of Utah on a point of Utah law. If, as we have said, the courts of appeals owe no deference to district court adjudications of state law, see Salve Regina College v. Russell, 499 U.S. 225, 239-240 (1991), surely there is no basis for regarding panels of circuit judges as "better qualified" than we to pass on such questions, see post, at 146. Our general presumption that courts of appeals correctly decide questions of state law reflects a judgment as to the utility of reviewing them in most cases, see Salve Regina College, supra, at 235, n. 3, not a belief that the courts of appeals have some natural advantage in this domain, cf. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 500 (1985) ("[W]e surely have the authority to differ with the lower federal courts as to the meaning of a state statute"); Cole v. Richardson, 405 U.S. 676, 683-685 (1972). That general presumption is obviously inapplicable where the court of appeals' state-law ruling is plainly wrong, a conclusion that the dissent does not even contest in this case. *146 The opinion of the Tenth Circuit in this case is not sustainable. Accordingly, we grant the petition as to the severability question, summarily reverse the judgment, and remand the case to the Court of Appeals for further proceedings. It is so ordered.

The State of Utah seeks review of a ruling by the Court of Appeals for the Tenth Circuit which declared invalid a provision of Utah law regulating abortions "[a]fter 20 weeks gestational age." (3) *38 The court made that declaration, not on the ground that the provision violates federal law, but rather on the ground that the provision was not severable from another provision of the same statute, purporting to regulate abortions up to 20 weeks' gestational age, which had been struck down as unconstitutional. The court's severability ruling was based on its view that the Utah Legislature would not have wanted to regulate the later-term abortions unless it could regulate the earlier-term abortions as well. Whatever the validity of such speculation as a general matter, in the present case it is flatly contradicted by a provision in the very part of the Utah Code at issue, explicitly stating that each statutory provision was to be regarded as having been enacted independently of the others. Because we regard the Court of Appeals' determination as to the Utah Legislature's intent to be irreconcilable with that body's own statement on the subject, we grant the petition for certiorari as to this aspect of the judgment of the Court of Appeals, and summarily reverse. Utah law, as amended by legislation enacted in 99, establishes two regimes of regulation for abortion, based on the term of the pregnancy. With respect to pregnancies 20 weeks old or less, 302(2) permits abortions only under five enumerated circumstances, (2) With respect to pregnancies of more than 20 weeks, 302(3) permits abortions under only three of the five circumstances specified in 302(2). 76-7-302(3).[] In the *39 present suit for declaratory and injunctive relief, the District Court for the District of Utah held 302(2) to be unconstitutional, but 302(3) to be both constitutional and severable— i. e., enforceable despite the invalidation of the other provision. Jane Upon appeal by the plaintiffs with regard to the latter provision, the Court of Appeals for the Tenth Circuit held that it could not be enforced, regardless of its constitutionality, because it was not severable from the invalidated portion of the law. Jane The State argues that that conclusion is simply unsustainable in light of the Utah Legislature's express indication to the contrary, and we agree. Severability is of course a matter of state law. In Utah, as the Court of Appeals acknowledged, the matter "is determined first and foremost by answering the following question: Would the legislature have passed the statute without the unconstitutional section?" at 497 ). A provision of the abortion part of the Utah Code, to which these two sections were added, answers that question. Section 37 provides: "If any one or more provision, section, subsection, sentence, clause, phrase or word of this part or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be *40 severable and the balance of this part shall remain effective notwithstanding such unconstitutionality. The leg- islature hereby declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sen- tence, clause, phrase, or word be declared unconstitu- tional. " Utah Code Ann. 76-7-37 In the face of this statement by the Utah Legislature of its own intent in enacting regulations of abortion, the Court of Appeals nonetheless concluded that 302(2) and 302(3) were not severable because the Utah Legislature did not intend them to be so. The Court of Appeals' opinion not only did not regard the explicit language of 37 as determinative—it did not even use it as the point of departure for addressing the severability question. It understood Utah law as instructing courts to "subordinate severability clauses, which evince the legislature's intent regarding the structure of the statute, to the legislature's overarching substantive intentions." 6 F.3d, at The court divined in the 99 amendments a "substantive intent" to prohibit virtually all abortions, see and went on to conclude that since, in its view, severing 302(2) from 302(3) would frustrate this overarching purpose, both provisions had to stand or fall together, see at We believe that the Court of Appeals erred at both steps of this progression. The dichotomy between "structural" and "substantive" intents is nowhere to be found in the Utah cases cited as authority by the Court of Appeals. Indeed, none of those cases even speaks in terms of "conflicts among legislative intentions," The cases do support the proposition that, "even where a savings clause exist[s], where the provisions of the statute are interrelated, it is not within the scope of th[e] court's function to select the valid portions of *4 the act and conjecture that they should stand independently of the portions which are invalid." See also Salt Lake ; But those concerns are absent from this case, for two reasons. First, because there is no need to resort to "conjecture": The legislature's abortion laws include not merely the standard "saving" clause, but a provision that could not be clearer in its message that the legislature "would have passed [every aspect of the law] irrespective of the fact that any one or more provision be declared unconstitutional." 76-7-37.[2] And second, because the two sections at issue here are not "interrelated" in any relevant sense—i. e., in the sense of being so interdependent that the remainder of the statute cannot function effectively without the invalidated provision, or in the sense that the invalidated provision could be regarded as part of a legislative compromise, extracted in exchange for the inclusion of other provisions of the statute.[3] Nothing like that appears here. The Court of Appeals described 302(3) as *42 "modif[ying]" 302(2), and concluded that, "[w]ith the nullification of the abortion ban in section 302(2), the statute was gutted, and section 302(3) was left purposeless without an abortion ban to modify." 6 F.3d, But as examination of the provisions makes apparent, see n. 302(3) cannot possibly be said to "modify" 302(2) in the sense of being an adjunct to it, as an adjective "modifies" a noun. Rather, it can be said to "modify" 302(2) only in the sense of altering its disposition—permitting, for post-20week abortions, some but not all of the justifications allowed (for earlier-term abortions) by 302(2). It is impossible to see how this could lead to the conclusion that 302(3) is left "purposeless" when 302(2) is declared inoperative. Of course 302(3) does incorporate by reference permissible justifications for abortion set forth in 302(2), instead of repeating them verbatim, but this drafting device can hardly be thought to establish such "interdependence" that 302(3) becomes "purposeless" when 302(2) is unenforceable. To the contrary, 302(3) sets out in straightforward and selfoperative fashion the circumstances under which an abortion may be performed "[a]fter 20 weeks gestational age." But even if the Court of Appeals were correct in treating 37 like an ordinary saving clause; even if it were right in believing that there existed the "interrelationship" between 302(2) and 302(3) that would permit an ordinary saving clause to be disregarded; and even if it had not invented the notion of "structural-substantive" dichotomy; the reasoning by which it concluded that the "substantive" intent of the Utah Legislature was to forgo all regulation of abortion unless it could obtain total regulation is flawed. The court reasoned that, because the intent of the 99 amendments was "to prohibit all abortions, regardless of when they occur during the pregnancy, except in the few specified circumstances," 6 F.3d, at 497, and because 302(2) and 302(3) "operated as a unified expression of [that] intent," ib for *43 the court to separate 302(2) from 302(3) based on the unconstitutionality of the former would "clearly undermin[e] the legislative purpose to ban most abortions,"[4] This mode of analysis, if carried out in every case, would operate to defeat every claim of severability. Every legislature that adopts, in a single enactment, provision A plus provision B intends (A+B); and that enactment, which reads (A+B), is invariably a "unified expression of that intent," so that taking away A from (A+B), leaving only B, will invariably "clearly undermine the legislative purpose" to enact (A+B). But the fallacy in applying this reasoning to the severability question is that it is not the severing that will take away A from (A+B) and thus foil the legislature's intent; it is the invalidation of A (in this case, because of its unconstitutionality) which does so—an invalidation that occurs whether or not the two provisions are severed. The relevant question, in other words, is not whether the legislature would prefer (A+B) to B, because by reason of the invalidation of A that choice is no longer available. The relevant question is whether the legislature would prefer not to have B if it could not have A as well. Here, the Court of Appeals in effect said yes. It determined that a legislature bent *44 on banning almost all abortions would prefer, if it could not have that desire, to ban no abortions at all rather than merely some. This notion is, at the very least, questionable when considered in isolation. But when it is put forward in the face of a statutory text that explicitly states the opposite, it is plainly error. * * * We have summarily set aside unsupportable judgments in cases involving only individual claims, see, e. g., Board of Ed. of 969-97 (982); National Bank of North 460-46 (976). Much more is that appropriate when what is at issue is the total invalidation of a statewide law, see, e. g., Idaho Dept. of 434 U.S. 00, 00-02 To be sure, we do not normally grant petitions for certiorari solely to review what purports to be an application of state law; but we have done so, see 438, 440- (947); Wichita Royalty 306 U.S. 03, 07 (939),[5] and undoubtedly should do so where the alternative is allowing *45 blatant federal-court nullification of state law. The dissent argues that "[t]he doctrine of judicial restraint" weighs against review, post, at 46, but it is an odd notion of judicial restraint that would compel us to cast a blind eye on overreaching by lower federal courts. The fact observed by the dissent, that the "underlying substantive issue in this case" is a controversial one, generating "a kind of `hydraulic pressure' that motivates ad hoc decisionmaking," ib provides a greater, not a lesser, justification for reversing state-law determinations that seem plainly wrong. In our view, these considerations combine to make this an "extraordinary cas[e]" worth our effort of summary review, post, at 47. Finally, the dissent's appeal to the supposed greater expertise of courts of appeals regarding state law is particularly weak (if not indeed counter indicative) where a Court of Appeals panel consisting of judges from Oklahoma, Colorado, and Kansas has reversed the District Court of Utah on a point of Utah law. If, as we have said, the courts of appeals owe no deference to district court adjudications of state law, see Salve Regina (99), surely there is no basis for regarding panels of circuit judges as "better qualified" than we to pass on such questions, see post, at 46. Our general presumption that courts of appeals correctly decide questions of state law reflects a judgment as to the utility of reviewing them in most cases, see Salve Regina not a belief that the courts of appeals have some natural advantage in this domain, cf. 472 U.S. 49, (985) ; (972). That general presumption is obviously inapplicable where the court of appeals' state-law ruling is plainly wrong, a conclusion that the dissent does not even contest in this case. *46 The opinion of the Tenth Circuit in this case is not sustainable. Accordingly, we grant the petition as to the severability question, summarily reverse the judgment, and remand the case to the Court of Appeals for further proceedings. It is so ordered.

Justice Stevens

dissenting

Leavitt v. Jane L.

1996-06-17

https://www.courtlistener.com/opinion/118046/leavitt-v-jane-l/

https://www.courtlistener.com/api/rest/v3/clusters/118046/

1995-073

The severability issue discussed in the Court's per curiam opinion is purely a question of Utah law. It is contrary to our settled practice to grant a petition for certiorari for the sole purpose of deciding a state-law question ruled upon by a federal court of appeals. The justifications for that practice are well established: The courts of appeals are more familiar with and thus better qualified than we to interpret the laws of the States within their Circuits; the decision of a federal court (even this Court) on a question of state law is not binding on state tribunals; and a decision of a state-law issue by a court of appeals, whether right or wrong, does not have the kind of national significance that is the typical predicate for the exercise of our certiorari jurisdiction.[*] The underlying substantive issue in this case generates what Justice Holmes once described as a kind of "hydraulic pressure" that motivates ad hoc decisionmaking. Northern Securities Co. v. United States, 193 U.S. 197, 401 (1904) (dissenting opinion). Even if the court of appeals has rendered an incorrect decision, that is no reason for us to jettison the traditional guides to our practice of certiorari review. The doctrine of judicial restraint counsels the opposite course. *147 The majority counters with a pair of cases that supposedly show the absence of a settled practice regarding review of state-law questions. One of those—Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U.S. 103 (1939)—was a diversity case decided in the wake of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Just four weeks before we handed down Erie, the Court of Appeals had disclaimed its obligation to follow a controlling decision by the Texas Supreme Court (indeed, one rendered in an earlier stage of the same proceedings) on a matter of Texas commercial law. 306 U.S., at 106. The Court of Appeals then denied rehearing on the theory that the Texas court had changed its mind and now agreed with the former's view of the law. Ibid. Our decision to hear that case, which resulted in our rejection of the lower court's conclusion, was plainly motivated by a concern to give effect to Erie `s new mandate. That leaves the single example of Steele v. General Mills, Inc., 329 U.S. 433 (1947), in which this Court granted certiorari because the lower court's judgment "undermine[d] the transportation policy of Texas." Id., at 438. Decided nearly 50 years ago and without successor, Steele is the exception that proves the rule. However irregular such grants were in the past, they are now virtually unheard of. Indeed, in 1980 we codified our already longstanding practice by eliminating as a consideration for deciding whether to review a case the fact that "a court of appeals has . . . decided an important state or territorial question in a way in conflict with applicable state or territorial law." Compare this Court's Rule 19(1)(b) (1970) with this Court's Rule 17.1 (1980). That deletion—the only deletion of an entire category of cases—was intended to communicate our view that errors in the application of state law are not a sound reason for granting certiorari, except in the most extraordinary cases. Tellingly, the majority does not cite a single example during the past 16 years in which we *148 have departed from this reemphasized practice. This case should not be the first. Accordingly, I respectfully dissent from the decision to grant the petition.

The severability issue discussed in the Court's per curiam opinion is purely a question of Utah It is contrary to our settled practice to grant a petition for certiorari for the sole purpose of deciding a state-law question ruled upon by a federal court of appeals. The justifications for that practice are well established: The courts of appeals are more familiar with and thus better qualified than we to interpret the laws of the States within their Circuits; the decision of a federal court (even this Court) on a question of state law is not binding on state tribunals; and a decision of a state-law issue by a court of appeals, whether right or wrong, does not have the kind of national significance that is the typical predicate for the exercise of our certiorari jurisdiction.[*] The underlying substantive issue in this case generates what Justice Holmes once described as a kind of "hydraulic pressure" that motivates ad hoc decisionmaking. Northern Securities Even if the court of appeals has rendered an incorrect decision, that is no reason for us to jettison the traditional guides to our practice of certiorari review. The doctrine of judicial restraint counsels the opposite course. *147 The majority counters with a pair of cases that supposedly show the absence of a settled practice regarding review of state-law questions. One of those—Wichita Royalty —was a diversity case decided in the wake of Erie R. Just four weeks before we handed down Erie, the Court of Appeals had disclaimed its obligation to follow a controlling decision by the Texas Supreme Court (indeed, one rendered in an earlier stage of the same proceedings) on a matter of Texas commercial The Court of Appeals then denied rehearing on the theory that the Texas court had changed its mind and now agreed with the former's view of the Our decision to hear that case, which resulted in our rejection of the lower court's conclusion, was plainly motivated by a concern to give effect to Erie `s new mandate. That leaves the single example of in which this Court granted certiorari because the lower court's judgment "undermine[d] the transportation policy of Texas." Decided nearly 50 years ago and without successor, Steele is the exception that proves the rule. However irregular such grants were in the past, they are now virtually unheard of. Indeed, in 1980 we codified our already longstanding practice by eliminating as a consideration for deciding whether to review a case the fact that "a court of appeals has decided an important state or territorial question in a way in conflict with applicable state or territorial " Compare this Court's Rule 19(1)(b) (1970) with this Court's Rule 17.1 (1980). That deletion—the only deletion of an entire category of cases—was intended to communicate our view that errors in the application of state law are not a sound reason for granting certiorari, except in the most extraordinary cases. Tellingly, the majority does not cite a single example during the past 16 years in which we *148 have departed from this reemphasized practice. This case should not be the first. Accordingly, I respectfully dissent from the decision to grant the petition.

Justice Scalia

majority

Powerex Corp. v. Reliant Energy Services, Inc.

2007-06-18

https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145713/

2006-062

We granted certiorari to decide whether, under the Foreign Sovereign Immunities Act of 1976 (FSIA), petitioner is an "organ of a foreign state or political subdivision thereof." 28 U.S.C. § 1603(b)(2). When we granted certiorari, however, we asked the parties also to address whether the Ninth Circuit had appellate jurisdiction in light of 28 U.S.C. § 1447(d). I The procedural history of this case is long and complicated; we recount only what is necessary to resolve the writ before us. The State of California, along with some private and corporate citizens (hereinafter collectively referred to as plaintiffs-respondents), filed suits in California state courts against various companies in the California energy market, alleging that they had conspired to fix prices in violation of California law. Some of those defendants, in turn, filed cross-claims seeking indemnity from, inter alios, the Bonneville Power Administration (BPA), the Western Area Power Administration (WAPA), the British Columbia Hydro and Power Authority (BC Hydro), and petitioner Powerex (we shall sometimes refer to these entities collectively as the cross-defendants). BPA and WAPA are agencies of the United States Government. BC Hydro is a crown corporation of the Canadian Province of British Columbia that is wholly owned by the Province and that all parties agree constitutes a "foreign state" for purposes of the FSIA. See § 1603. Petitioner, also a Canadian corporation, is a wholly owned subsidiary of BC Hydro. The cross-defendants removed the entire case to federal court. BC Hydro and petitioner both relied on § 1441(d), which permits a "foreign state," as defined by § 1603(a) of the FSIA, to remove civil actions brought against it in state court. BPA and WAPA invoked § 1442(a), authorizing removal by federal agencies. Plaintiffs-respondents moved to remand, arguing that petitioner was not a foreign state, and that the cross-claims against BPA, WAPA, and BC Hydro were barred by sovereign immunity. Petitioner opposed remand on the ground that it was a foreign state under the FSIA; the other cross-defendants opposed remand on the ground that their sovereign immunity entitled them to be dismissed from the action outright. The District Court initially concluded (we assume correctly) that § 1442(a) entitled BPA and WAPA to remove the entire case and that BC Hydro was similarly entitled under § 1441(d). App. to Pet. for Cert. 20a. It thus believed that whether the case should be remanded "hinge[d on its] jurisdictional authority to hear the removed claims, not whether the actions were properly removed in the first instance." Ibid. The District Court held that petitioner did not qualify as a foreign sovereign under the FSIA. Id., at 33a-38a. It also decided that BC Hydro enjoyed sovereign immunity under the FSIA. Id., at 21a-33a. And it concluded that BPA *2415 and WAPA were immune from suit in state court, which the court believed deprived it of jurisdiction over the claims against those agencies. Id., at 38a-44a. Having reached these conclusions, the District Court remanded the entire case. Id., at 44a. Petitioner appealed to the Court of Appeals for the Ninth Circuit, arguing that it was a foreign sovereign under the FSIA. BPA and WAPA (but not BC Hydro) also appealed, asserting that the District Court, before remanding the case, should have dismissed them from the action in light of their sovereign immunity. Plaintiffs-respondents, for their part, rejoined that both appeals were jurisdictionally barred by § 1447(d) and that the District Court had not erred in any event. The Ninth Circuit rejected the invocation of § 1447(d), holding that that provision did not preclude it from reviewing substantive issues of law that preceded the remand order. California v. NRG Energy Inc., 391 F.3d 1011, 1022-1023 (2004). It also found that the District Court had jurisdiction over the case because BPA, WAPA, and BC Hydro properly removed the entire action. Id., at 1023. Turning to the merits, the Ninth Circuit affirmed the holding that petitioner was not a "foreign state" for purposes of the FSIA. Id., at 1025-1026. It also upheld the District Court's conclusion that BPA, WAPA, and BC Hydro retained sovereign immunity, id., at 1023-1025, but reversed its decision not to dismiss BPA and WAPA before remanding, id., at 1026-1027. Petitioner sought certiorari review of the Ninth Circuit's determination that it was not an "organ of a foreign state or political subdivision thereof" under § 1603(b)(2). We granted certiorari on this question, but asked the parties to address in addition whether the Ninth Circuit had jurisdiction over petitioner's appeal notwithstanding § 1447(d). 549 U.S. ___, 127 S. Ct. 1144, 166 L. Ed. 2d 910 (2007). II The authority of appellate courts to review district-court orders remanding removed cases to state court is substantially limited by statute. Title 28 U.S.C. § 1447(d) provides (with an exception for certain civil rights cases) that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Determining whether the Ninth Circuit was permitted to review the District Court's remand is, alas, not as easy as one would expect from a mere reading of this text, for we have interpreted § 1447(d) to cover less than its words alone suggest. In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-346, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976), we held that § 1447(d) should be read in pari materia with § 1447(c), so that only remands based on the grounds specified in the latter are shielded by the bar on review mandated by the former. At the time of Thermtron, § 1447(c) stated in relevant part: "`If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case.'" Id., at 342, 96 S. Ct. 584. Consequently, Thermtron limited § 1447(d)'s application to such remands. Id., at 346, 96 S. Ct. 584. In 1988, Congress amended § 1447(c) in relevant part as follows: "A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under [28 U.S.C. § ] 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, *2416 the case shall be remanded." § 1016(c)(1), 102 Stat. 4670. When that version of § 1447(c) was in effect, we thus interpreted § 1447(d) to preclude review only of remands for lack of subject-matter jurisdiction and for defects in removal procedure. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-712, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-128, 116 S. Ct. 494, 133 L. Ed. 2d 461 (1995). Although § 1447(c) was amended yet again in 1996, 110 Stat. 3022, we will assume for purposes of this case that the amendment was immaterial to Thermtron's gloss on § 1447(d), so that the prohibition on appellate review remains limited to remands based on the grounds specified in Quackenbush. We agree with petitioner that the remand order was not based on a defect in removal procedure, so on the foregoing interpretation of Thermtron the remand is immunized from review only if it was based on a lack of subject-matter jurisdiction. A The principal submission of the Solicitor General and petitioner is that the District Court's remand order was not based on a lack of "subject matter jurisdiction" within the meaning of § 1447(c) because that term is properly interpreted to cover only "a defect in subject matter jurisdiction at the time of removal that rendered the removal itself jurisdictionally improper." Brief for United States as Amicus Curiae 8; see also id., at 8-11; Brief for Petitioner 42-45. Under this interpretation, the District Court's remand order was not based on a defect in subject-matter jurisdiction for purposes of § 1447(c), since the cross-defendants other than petitioner were statutorily authorized to remove the whole case in light of their sovereign status. The Ninth Circuit appears to have relied, at least in part, on this rationale. See 391 F.3d, at 1023. We reject this narrowing construction of § 1447(c)'s unqualified authorization of remands for lack of "subject matter jurisdiction." Nothing in the text of § 1447(c) supports the proposition that a remand for lack of subject-matter jurisdiction is not covered so long as the case was properly removed in the first instance. Petitioner and the Solicitor General do not seriously dispute the absence of an explicit textual limitation. Instead, relying on the statutory history of § 1447(c), they make a three-step argument why the provision is implicitly limited in this manner. First, they note that the pre-1988 version of § 1447(c) mandated remand "[i]f at any time before final judgment it appear[ed] that the case was removed improvidently and without jurisdiction," 28 U.S.C. § 1447(c) (1982 ed.). That version, obviously, authorized remand only for cases that were removed improperly. Second, they contend that the purpose of the 1988 amendment was to impose a time limit for raising nonjurisdictional objections to removal, a contention that is certainly plausible in light of the structure of the amended provision: "A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." § 1447(c) (1988 ed.). Finally, they conclude that since the purpose of the amendment was to alter the timing rules, there is no reason to think that Congress broadened the scope of § 1447(c) to authorize the remand of cases that had been properly removed. The language "lacks subject matter jurisdiction," *2417 which was newly added to § 1447(c), must be construed to cover only cases in which removal was jurisdictionally improper at the outset. But the very statutory history upon which this creative argument relies conclusively refutes it. The same section of the public law that amended § 1447(c) to include the phrase "subject matter jurisdiction" also created a new § 1447(e). See § 1016(c), 102 Stat. 4670. Section 1447(e), which remains on the books, states: "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." This unambiguously demonstrates that a case can be properly removed and yet suffer from a failing in subject-matter jurisdiction that requires remand. A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning. See, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005). That maxim is doubly appropriate here, since the phrase "subject matter jurisdiction" was inserted into § 1447(c) and § 1447(e) at the same time. There is no reason to believe that the new language in the former provision, unlike the new language simultaneously inserted two subsections later, covers only cases in which removal itself was jurisdictionally improper. We hold that when a district court remands a properly removed case because it nonetheless lacks subject-matter jurisdiction, the remand is covered by § 1447(c) and thus shielded from review by § 1447(d).[1] B That holding requires us to determine whether the ground for the District Court's remand in the present case was lack of subject-matter jurisdiction. As an initial matter, it is quite clear that the District Court was purporting to remand on that ground. The heading of the discussion section of the remand order is entitled "Subject Matter Jurisdiction Over the Removed Actions." App. to Pet. for Cert. 20a. And the District Court explicitly stated that the remand "issue hinges... on the Court's jurisdictional authority to hear the removed claims." Ibid. Were any doubt remaining, it is surely eliminated by the District Court's order denying a stay of the remand, which repeatedly stated that a lack of subject-matter jurisdiction required remand pursuant to § 1447(c). See App. 281-286. For some Members of this Court, the foregoing conclusion that the District Court purported to remand for lack of subject-matter jurisdiction is alone enough to bar review under § 1447(d). See Osborn v. Haley, 549 U.S. ___, ___, 127 S. Ct. 881, 907-908, 166 L. Ed. 2d 819 (2007) (SCALIA, J., joined by THOMAS, J., dissenting). Even assuming, however, that § 1447(d) permits appellate courts to look behind the district court's characterization, see Kircher v. Putnam Funds Trust, 547 U.S. ___, ___, n. 9, 126 S. Ct. 2145, 2153, n. 9, 165 L. Ed. 2d 92 (2006) (reserving the *2418 question), we conclude that appellate review is barred in this case.[2] There is only one plausible explanation of what legal ground the District Court actually relied upon for its remand in the present case. As contended by plaintiffs-respondents, it was the court's lack of power to adjudicate the claims against petitioner once it concluded both that petitioner was not a foreign state capable of independently removing and that the claims against the other removing cross-defendants were barred by sovereign immunity. Brief for Plaintiffs-Respondents 17-21, 25-26. Though we have not passed on the question whether, when sovereign immunity bars the claims against the only parties capable of removing the case, subject-matter jurisdiction exists to entertain the remaining claims, cf. n. 3, infra, the point is certainly debatable. And we conclude that review of the District Court's characterization of its remand as resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all, should be limited to confirming that that characterization was colorable. Lengthy appellate disputes about whether an arguable jurisdictional ground invoked by the district court was properly such would frustrate the purpose of § 1447(d) quite as much as determining whether the factfinding underlying that invocation was correct. See Kircher, supra, at ___, 126 S.Ct., at 2158-2159 (SCALIA, J., concurring in part and concurring in judgment). Moreover, the line between misclassifying a ground as subject-matter jurisdiction and misapplying a proper ground of subject-matter jurisdiction is sometimes elusively thin. To decide the present case, we need not pass on whether § 1447(d) permits appellate review of a district-court remand order that dresses in jurisdictional clothing a patently nonjurisdictional ground (such as the docket congestion invoked by the District Court in Thermtron, 423 U.S., at 344, 96 S. Ct. 584). We hold that when, as here, the District Court relied upon a ground that is colorably characterized as subject-matter jurisdiction, appellate review is barred by § 1447(d). Petitioner puts forward another explanation for the remand, which we find implausible. Petitioner claims that, because the entire case was properly removed, the District Court had the discretion to invoke a form of supplemental jurisdiction to hear the claims against it, and that its remand rested upon the decision not to exercise that discretion. In short, petitioner contends that the District Court was actually relying on Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988), which authorized district courts to remand removed state claims when they decide not to exercise supplemental jurisdiction. Brief for Petitioner 45-48; Reply Brief for Petitioner 16-20. It is far from clear, to begin with, (1) that supplemental jurisdiction was even available in the circumstances of this case;[3] and (2) that when discretionary supplemental jurisdiction is declined the remand is not based on lack of subject-matter *2419 jurisdiction for purposes of § 1447(c) and § 1447(d).[4] Assuming those points, however, there is no reason to believe that the District Court's remand was actually based on this unexplained discretionary decision. The District Court itself never mentioned the possibility of supplemental jurisdiction, neither in its original decision, see App. to Pet. for Cert. 20-44, nor in its order denying petitioner's motion to stay the remand pending appeal, App. 281-286. To the contrary, as described above, it relied upon lack of subject-matter jurisdiction—which, in petitioner's view of things (but see n. 4, this page) would not include a Cohill remand. Moreover, it does not appear from the record that petitioner ever even argued to the District Court that supplemental jurisdiction was a basis for retaining the claims against it. There is, in short, no reason to believe that an unmentioned nonexercise of Cohill discretion was the basis for the remand. C Part of the reason why the Ninth Circuit concluded it had appellate jurisdiction is a legal theory quite different from those discussed and rejected above. Petitioner, along with the other appellants, convinced the court to apply Circuit precedent holding that § 1447(d) does not preclude review of a district court's merits determinations that precede the remand. See 391 F.3d, at 1023 (citing, inter alia, Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276-277 (C.A.9 1984)). Petitioner has not completely abandoned this argument before us, see Brief for Petitioner 50, and it is in any event desirable to address this aspect of the Ninth Circuit's judgment. The line of Ninth Circuit jurisprudence upon which petitioner relied appears to be invoking our decision in Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S. Ct. 6, 79 L. Ed. 244 (1934). There the District Court, in a single decree, had entered one order dismissing a cross-complaint against one party, and another order remanding because there was no diversity of citizenship in light of the dismissal. Id., at 142, 55 S. Ct. 6. We held that appellate jurisdiction existed to review the order of dismissal, although we repeatedly cautioned that the remand order itself could not be set aside. Id., at 143-144, 55 S. Ct. 6. The Ninth Circuit's application of Waco to petitioner's appeal was mistaken. As we reiterated in Kircher, see 547 U.S., at ___, n. 13, 126 S.Ct., at 2156, n. 13, Waco does not permit an appeal when there is no order separate from the unreviewable remand order. Here petitioner can point to no District Court order, separate from the remand, to which it objects and to which the issue of its foreign sovereign status is material. Thus, petitioner's invocation of Waco amounts to a request for one of two impermissible outcomes: an advisory opinion as to its FSIA status that will not affect any order of the District Court, or a reversal of the remand order. Waco did not, and could not, authorize either form of judicial relief. D Finally, petitioner contends, with no textual support, that § 1447(d) is simply inapplicable to a suit removed under the FSIA. It asserts that "§ 1447(d) must yield because Congress could not have intended *2420 to grant district judges irrevocable authority to decide questions with such sensitive foreign-relations implications." Brief for Petitioner 49. We will not ignore a clear jurisdictional statute in reliance upon supposition of what Congress really wanted. See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992). Petitioner's divination of congressional intent is flatly refuted by longstanding precedent: "Section 1447(d) applies `not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well.' ... Absent a clear statutory command to the contrary, we assume that Congress is `aware of the universality of th[e] practice' of denying appellate review of remand orders when Congress creates a new ground for removal." Things Remembered, 516 U.S., at 128, 116 S. Ct. 940 (quoting United States v. Rice, 327 U.S. 742, 752, 66 S. Ct. 835, 90 L. Ed. 982 (1946); emphasis deleted and alterations in original). Congress has repeatedly demonstrated its readiness to exempt particular classes of remand orders from § 1447(d) when it wishes—both within the text of § 1447(d) itself (which exempts civil rights cases removed pursuant to 28 U.S.C. § 1443), and in separate statutes, see, e.g., 12 U.S.C. § 1441a(l)(3)(c), § 1819(b)(2)(C); 25 U.S.C. § 487(d). We are well aware that § 1447(d)'s immunization of erroneous remands has undesirable consequences in the FSIA context. A foreign sovereign defendant whose case is wrongly remanded is denied not only the federal forum to which it is entitled (as befalls all remanded parties with meritorious appeals barred by § 1447(d)), but also certain procedural rights that the FSIA specifically provides foreign sovereigns only in federal court (such as the right to a bench trial, see 28 U.S.C. § 1330(a); § 1441(d)). But whether that special concern outweighs § 1447(d)'s general interest in avoiding prolonged litigation on threshold non-merits questions, see Kircher, supra, at ___, 126 S.Ct., at 2152, is a policy debate that belongs in the halls of Congress, not in the hearing room of this Court. As far as the Third Branch is concerned, what the text of § 1447(d) indisputably does prevails over what it ought to have done.[5] *2421 * * * Section 1447(d) reflects Congress's longstanding "policy of not permitting interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed." Rice, supra, at 751, 66 S. Ct. 835. Appellate courts must take that jurisdictional prescription seriously, however pressing the merits of the appeal might seem. We hold that § 1447(d) bars appellate consideration of petitioner's claim that it is a foreign state for purposes of the FSIA. We therefore vacate in part the judgment of the Ninth Circuit and remand the case with instructions to dismiss petitioner's appeal for want of jurisdiction. It is so ordered.

We granted certiorari to decide whether, under the Foreign Sovereign Immunities Act of (FSIA), petitioner is an "organ of a foreign state or political subdivision thereof." (b)(2). When we granted certiorari, however, we asked the parties also to address whether the Ninth Circuit had appellate jurisdiction in light of (d). I The procedural history of this case is long and complicated; we recount only what is necessary to resolve the writ before us. The State of California, along with some private and corporate citizens (hereinafter collectively referred to as plaintiffs-respondents), filed suits in California state courts against various companies in the California energy market, alleging that they had conspired to fix prices in violation of California law. Some of those defendants, in turn, filed cross-claims seeking indemnity from, inter alios, the Bonneville Power Administration (BPA), the Western Area Power Administration (WAPA), the British Columbia Hydro and Power Authority (BC Hydro), and petitioner Powerex (we shall sometimes refer to these entities collectively as the cross-defendants). BPA and WAPA are agencies of the United States Government. BC Hydro is a crown corporation of the Canadian Province of British Columbia that is wholly owned by the Province and that all parties agree constitutes a "foreign state" for purposes of the FSIA. See 1603. Petitioner, also a Canadian corporation, is a wholly owned subsidiary of BC Hydro. The cross-defendants removed the entire case to federal court. BC Hydro and petitioner both relied on 1441(d), which permits a "foreign state," as defined by 1603(a) of the FSIA, to remove civil actions brought against it in state court. BPA and WAPA invoked 1442(a), authorizing removal by federal agencies. Plaintiffs-respondents moved to remand, arguing that petitioner was not a foreign state, and that the cross-claims against BPA, WAPA, and BC Hydro were barred by sovereign immunity. Petitioner opposed remand on the ground that it was a foreign state under the FSIA; the other cross-defendants opposed remand on the ground that their sovereign immunity entitled them to be dismissed from the action outright. The District Court initially concluded (we assume correctly) that 1442(a) entitled BPA and WAPA to remove the entire case and that BC Hydro was similarly entitled under 1441(d). App. to Pet. for Cert. 20a. It thus believed that whether the case should be remanded "hinge[d on its] jurisdictional authority to hear the removed claims, not whether the actions were properly removed in the first instance." The District Court held that petitioner did not qualify as a foreign sovereign under the FSIA. at 33a-38a. It also decided that BC Hydro enjoyed sovereign immunity under the FSIA. at 21a-33a. And it concluded that BPA *2415 and WAPA were immune from suit in state court, which the court believed deprived it of jurisdiction over the claims against those agencies. at 38a-44a. Having reached these conclusions, the District Court remanded the entire case. at 44a. Petitioner appealed to the Court of Appeals for the Ninth Circuit, arguing that it was a foreign sovereign under the FSIA. BPA and WAPA (but not BC Hydro) also appealed, asserting that the District Court, before remanding the case, should have dismissed them from the action in light of their sovereign immunity. Plaintiffs-respondents, for their part, rejoined that both appeals were jurisdictionally barred by 1447(d) and that the District Court had not erred in any event. The Ninth Circuit rejected the invocation of 1447(d), holding that that provision did not preclude it from reviewing substantive issues of law that preceded the remand order. It also found that the District Court had jurisdiction over the case because BPA, WAPA, and BC Hydro properly removed the entire action. Turning to the merits, the Ninth Circuit affirmed the holding that petitioner was not a "foreign state" for purposes of the FSIA. It also upheld the District Court's conclusion that BPA, WAPA, and BC Hydro retained sovereign immunity, -1025, but reversed its decision not to dismiss BPA and WAPA before remanding, Petitioner sought certiorari review of the Ninth Circuit's determination that it was not an "organ of a foreign state or political subdivision thereof" under 1603(b)(2). We granted certiorari on this question, but asked the parties to address in addition whether the Ninth Circuit had jurisdiction over petitioner's appeal notwithstanding 1447(d). 549 U.S. II The authority of appellate courts to review district-court orders remanding removed cases to state court is substantially limited by statute. Title (d) provides (with an exception for certain civil rights cases) that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Determining whether the Ninth Circuit was permitted to review the District Court's remand is, alas, not as easy as one would expect from a mere reading of this text, for we have interpreted 1447(d) to cover less than its words alone suggest. In Products, we held that 1447(d) should be read in pari materia with 1447(c), so that only remands based on the grounds specified in the latter are shielded by the bar on review mandated by the former. At the time of 1447(c) stated in relevant part: "`If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case.'" Consequently, limited 1447(d)'s application to such remands. In Congress amended 1447(c) in relevant part as follows: "A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under [28 U.S.C. ] 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, *2416 the case shall be remanded." 1016(c)(1), When that version of 1447(c) was in effect, we thus interpreted 1447(d) to preclude review only of remands for lack of subject-matter jurisdiction and for defects in removal procedure. See ; Things Remembered, Although 1447(c) was amended yet again in we will assume for purposes of this case that the amendment was immaterial to 's gloss on 1447(d), so that the prohibition on appellate review remains limited to remands based on the grounds specified in Quackenbush. We agree with petitioner that the remand order was not based on a defect in removal procedure, so on the foregoing interpretation of the remand is immunized from review only if it was based on a lack of subject-matter jurisdiction. A The principal submission of the Solicitor General and petitioner is that the District Court's remand order was not based on a lack of "subject matter jurisdiction" within the meaning of 1447(c) because that term is properly interpreted to cover only "a defect in subject matter jurisdiction at the time of removal that rendered the removal itself jurisdictionally improper." Brief for United States as Amicus Curiae 8; see also ; Brief for Petitioner 42-45. Under this interpretation, the District Court's remand order was not based on a defect in subject-matter jurisdiction for purposes of 1447(c), since the cross-defendants other than petitioner were statutorily authorized to remove the whole case in light of their sovereign status. The Ninth Circuit appears to have relied, at least in part, on this rationale. See 391 F.3d, We reject this narrowing construction of 1447(c)'s unqualified authorization of remands for lack of "subject matter jurisdiction." Nothing in the text of 1447(c) supports the proposition that a remand for lack of subject-matter jurisdiction is not covered so long as the case was properly removed in the first instance. Petitioner and the Solicitor General do not seriously dispute the absence of an explicit textual limitation. Instead, relying on the statutory history of 1447(c), they make a three-step argument why the provision is implicitly limited in this manner. First, they note that the pre- version of 1447(c) mandated remand "[i]f at any time before final judgment it appear[ed] that the case was removed improvidently and without jurisdiction," (c) (1982 ed.). That version, obviously, authorized remand only for cases that were removed improperly. Second, they contend that the purpose of the amendment was to impose a time limit for raising nonjurisdictional objections to removal, a contention that is certainly plausible in light of the structure of the amended provision: "A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 1447(c) ( ed.). Finally, they conclude that since the purpose of the amendment was to alter the timing rules, there is no reason to think that Congress broadened the scope of 1447(c) to authorize the remand of cases that had been properly removed. The language "lacks subject matter jurisdiction," *2417 which was newly added to 1447(c), must be construed to cover only cases in which removal was jurisdictionally improper at the outset. But the very statutory history upon which this creative argument relies conclusively refutes it. The same section of the public law that amended 1447(c) to include the phrase "subject matter jurisdiction" also created a new 1447(e). See 1016(c), Section 1447(e), which remains on the books, states: "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." This unambiguously demonstrates that a case can be properly removed and yet suffer from a failing in subject-matter jurisdiction that requires remand. A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning. See, e.g., IBP, That maxim is doubly appropriate here, since the phrase "subject matter jurisdiction" was inserted into 1447(c) and 1447(e) at the same time. There is no reason to believe that the new language in the former provision, unlike the new language simultaneously inserted two subsections later, covers only cases in which removal itself was jurisdictionally improper. We hold that when a district court remands a properly removed case because it nonetheless lacks subject-matter jurisdiction, the remand is covered by 1447(c) and thus shielded from review by 1447(d).[1] B That holding requires us to determine whether the ground for the District Court's remand in the present case was lack of subject-matter jurisdiction. As an initial matter, it is quite clear that the District Court was purporting to remand on that ground. The heading of the discussion section of the remand order is entitled "Subject Matter Jurisdiction Over the Removed Actions." App. to Pet. for Cert. 20a. And the District Court explicitly stated that the remand "issue hinges. on the Court's jurisdictional authority to hear the removed claims." Were any doubt remaining, it is surely eliminated by the District Court's order denying a stay of the remand, which repeatedly stated that a lack of subject-matter jurisdiction required remand pursuant to 1447(c). See App. 281-286. For some Members of this Court, the foregoing conclusion that the District Court purported to remand for lack of subject-matter jurisdiction is alone enough to bar review under 1447(d). See Even assuming, however, that 1447(d) permits appellate courts to look behind the district court's characterization, see we conclude that appellate review is barred in this case.[2] There is only one plausible explanation of what legal ground the District Court actually relied upon for its remand in the present case. As contended by plaintiffs-respondents, it was the court's lack of power to adjudicate the claims against petitioner once it concluded both that petitioner was not a foreign state capable of independently removing and that the claims against the other removing cross-defendants were barred by sovereign immunity. Brief for Plaintiffs-Respondents 17-21, 25-26. Though we have not passed on the question whether, when sovereign immunity bars the claims against the only parties capable of removing the case, subject-matter jurisdiction exists to entertain the remaining claims, cf. n. 3, infra, the point is certainly debatable. And we conclude that review of the District Court's characterization of its remand as resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all, should be limited to confirming that that characterization was colorable. Lengthy appellate disputes about whether an arguable jurisdictional ground invoked by the district court was properly such would frustrate the purpose of 1447(d) quite as much as determining whether the factfinding underlying that invocation was correct. See at -2159 Moreover, the line between misclassifying a ground as subject-matter jurisdiction and misapplying a proper ground of subject-matter jurisdiction is sometimes elusively thin. To decide the present case, we need not pass on whether 1447(d) permits appellate review of a district-court remand order that dresses in jurisdictional clothing a patently nonjurisdictional ground (such as the docket congestion invoked by the District Court in 423 U.S., at 4, ). We hold that when, as here, the District Court relied upon a ground that is colorably characterized as subject-matter jurisdiction, appellate review is barred by 1447(d). Petitioner puts forward another explanation for the remand, which we find implausible. Petitioner claims that, because the entire case was properly removed, the District Court had the discretion to invoke a form of supplemental jurisdiction to hear the claims against it, and that its remand rested upon the decision not to exercise that discretion. In short, petitioner contends that the District Court was actually relying on Carnegie-Mellon 484 U.S. 3, which authorized district courts to remand removed state claims when they decide not to exercise supplemental jurisdiction. Brief for Petitioner 45-48; Reply Brief for Petitioner 16-20. It is far from clear, to begin with, (1) that supplemental jurisdiction was even available in the circumstances of this case;[3] and (2) that when discretionary supplemental jurisdiction is declined the remand is not based on lack of subject-matter *2419 jurisdiction for purposes of 1447(c) and 1447(d).[4] Assuming those points, however, there is no reason to believe that the District Court's remand was actually based on this unexplained discretionary decision. The District Court itself never mentioned the possibility of supplemental jurisdiction, neither in its original decision, see App. to Pet. for Cert. 20-44, nor in its order denying petitioner's motion to stay the remand pending appeal, App. 281-286. To the contrary, as described above, it relied upon lack of subject-matter jurisdiction—which, in petitioner's view of things (but see n. 4, this page) would not include a Cohill remand. Moreover, it does not appear from the record that petitioner ever even argued to the District Court that supplemental jurisdiction was a basis for retaining the claims against it. There is, in short, no reason to believe that an unmentioned nonexercise of Cohill discretion was the basis for the remand. C Part of the reason why the Ninth Circuit concluded it had appellate jurisdiction is a legal theory quite different from those discussed and rejected above. Petitioner, along with the other appellants, convinced the court to apply Circuit precedent holding that 1447(d) does not preclude review of a district court's merits determinations that precede the remand. See 391 F.3d, ). Petitioner has not completely abandoned this argument before us, see Brief for Petitioner 50, and it is in any event desirable to address this aspect of the Ninth Circuit's judgment. The line of Ninth Circuit jurisprudence upon which petitioner relied appears to be invoking our decision in (19). There the District Court, in a single decree, had entered one order dismissing a cross-complaint against one party, and another order remanding because there was no diversity of citizenship in light of the dismissal. We held that appellate jurisdiction existed to review the order of dismissal, although we repeatedly cautioned that the remand order itself could not be set aside. The Ninth Circuit's application of Waco to petitioner's appeal was mistaken. As we reiterated in see 547 U.S., at n. n. Waco does not permit an appeal when there is no order separate from the unreviewable remand order. Here petitioner can point to no District Court order, separate from the remand, to which it objects and to which the issue of its foreign sovereign status is material. Thus, petitioner's invocation of Waco amounts to a request for one of two impermissible outcomes: an advisory opinion as to its FSIA status that will not affect any order of the District Court, or a reversal of the remand order. Waco did not, and could not, authorize either form of judicial relief. D Finally, petitioner contends, with no textual support, that 1447(d) is simply inapplicable to a suit removed under the FSIA. It asserts that " 1447(d) must yield because Congress could not have intended *2420 to grant district judges irrevocable authority to decide questions with such sensitive foreign-relations implications." Brief for Petitioner 49. We will not ignore a clear jurisdictional statute in reliance upon supposition of what Congress really wanted. See Connecticut Nat. Petitioner's divination of congressional intent is flatly refuted by longstanding precedent: "Section 1447(d) applies `not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well.' Absent a clear statutory command to the contrary, we assume that Congress is `aware of the universality of th[e] practice' of denying appellate review of remand orders when Congress creates a new ground for removal." Things Remembered, ; emphasis deleted and alterations in original). Congress has repeatedly demonstrated its readiness to exempt particular classes of remand orders from 1447(d) when it wishes—both within the text of 1447(d) itself (which exempts civil rights cases removed pursuant to 28 U.S.C. 1443), and in separate statutes, see, e.g., 12 U.S.C. 1441a(l)(3)(c), 1819(b)(2)(C); 25 U.S.C. 487(d). We are well aware that 1447(d)'s immunization of erroneous remands has undesirable consequences in the FSIA context. A foreign sovereign defendant whose case is wrongly remanded is denied not only the federal forum to which it is entitled (as befalls all remanded parties with meritorious appeals barred by 1447(d)), but also certain procedural rights that the FSIA specifically provides foreign sovereigns only in federal court (such as the right to a bench trial, see 28 U.S.C. 30(a); 1441(d)). But whether that special concern outweighs 1447(d)'s general interest in avoiding prolonged litigation on threshold non-merits questions, see at is a policy debate that belongs in the halls of Congress, not in the hearing room of this Court. As far as the Third Branch is concerned, what the text of 1447(d) indisputably does prevails over what it ought to have done.[5] *2421 * * * Section 1447(d) reflects Congress's longstanding "policy of not permitting interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed." Appellate courts must take that jurisdictional prescription seriously, however pressing the merits of the appeal might seem. We hold that 1447(d) bars appellate consideration of petitioner's claim that it is a foreign state for purposes of the FSIA. We therefore vacate in part the judgment of the Ninth Circuit and remand the case with instructions to dismiss petitioner's appeal for want of jurisdiction. It is so ordered.

Justice Kennedy

concurring

Powerex Corp. v. Reliant Energy Services, Inc.

2007-06-18

https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145713/

2006-062

When Congress acted through the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq. (2000 ed. and Supp. IV), to codify certain protections and immunities for foreign sovereigns and the entities of those sovereigns, it no doubt considered its action to be of importance for maintaining a proper relationship with other nations. And so it is troubling to be required to issue a decision that might well frustrate a policy of importance to our own Government. As the Court explains, however, the structure and wording of § 1447(d) (2000 ed.) leave us no other choice. There is no latitude for us to reach a different result. If it is true that the statute as written and the judgment we issue today are inconsistent with the intent and purpose Congress wanted to express, then the immediate jeopardy that foreign sovereign entities will now face should justify urgent legislative action to enact the necessary statutory revisions.

When Congress acted through the Foreign Sovereign Immunities Act of 1976, et seq. (2000 ed. and Supp. IV), to codify certain protections and immunities for foreign sovereigns and the entities of those sovereigns, it no doubt considered its action to be of importance for maintaining a proper relationship with other nations. And so it is troubling to be required to issue a decision that might well frustrate a policy of importance to our own Government. As the Court explains, however, the structure and wording of 1447(d) (2000 ed.) leave us no other choice. There is no latitude for us to reach a different result. If it is true that the statute as written and the judgment we issue today are inconsistent with the intent and purpose Congress wanted to express, then the immediate jeopardy that foreign sovereign entities will now face should justify urgent legislative action to enact the necessary statutory revisions.

Justice Breyer

dissenting

Powerex Corp. v. Reliant Energy Services, Inc.

2007-06-18

https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145713/

2006-062

Unlike the Court, I believe the District Court's remand order is reviewable on appeal. And, reviewing the decision below, I would hold that Powerex is an organ of the Government of British Columbia. I The majority concludes that 28 U.S.C. § 1447(d) took from the Ninth Circuit the power to review the District Court's remand decision. The statutory argument is a strong one. Section 1447(c) says that, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded" to state court; and § 1447(d), referring to subsection (c), adds that a district court "order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-346, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976). Nonetheless this Court has found exceptions to § 1447's seemingly blanket prohibition. See, e.g., id., at 350-352, 96 S. Ct. 584; Osborn v. Haley, 549 U.S. ___, ___, 127 S. Ct. 881, 893-896, 166 L. Ed. 2d 819 (2007). In doing so, the Court has recognized that even a statute silent on the subject can create an important conflict with § 1447(d)'s "no appellate review" instruction. And where that is so, we have, *2422 in fact, resolved the conflict by reading a later more specific statute as creating an implicit exception to § 1447(d) (though Osborn did not say as much). Id., at ___, 127 S.Ct., at 895-896. The subject matter of the Foreign Sovereign Immunity Act of 1976's removal provision, foreign sovereigns, is special. And the FSIA creates serious conflicts with § 1447(d)'s "no appellate review" instruction. The FSIA is later enacted and subject-matter specific. Consequently, I would read into the FSIA a similar exception to § 1447(d), applicable here. Osborn illustrates my starting point: a conflict with § 1447(d). The Westfall Act, the specific statute at issue in that case, provides for removal to federal court of a state-court lawsuit brought against a federal employee where the state-court lawsuit attacks employee actions within the scope of federal employment. 28 U.S.C. §§ 2679(d)(2)-(3). The Westfall Act authorizes the Attorney General to certify that the employee's actions at issue fall within the scope of federal employment. And the Westfall Act says that the certification "conclusively establish[es]" that fact for removal purposes. §§ 2679(d)(1)-(2). In Osborn, we pointed out that § 1447(d) would permit a district court, without appellate review, to remand in the face of a contrary Attorney General certification. 549 U.S., at ___, 127 S.Ct., at 894-895. Doing so, without appellate review, would thereby permit the district court to substitute its own judgment (as to whether the employee's actions were within the federal "scope of employment") for that of the Attorney General. And the district court would thereby have the unreviewable power to make the Attorney General's determination non conclusive, contrary to what the statute says. Because § 1447(d), if applied, would render this statutory instruction "weightless," we found a conflict with § 1447(d). Ibid. And we resolved the conflict in favor of the later enacted, more specific Westfall Act. Id., at ___, 127 S.Ct., at 895. A similarly strong conflict exists here, albeit not with a separate removal provision, but rather with a comprehensive statutory scheme. To understand how that is so, imagine a case not now before us. Imagine that a private plaintiff brings a lawsuit in state court against a noncommercial division of a foreign nation's government, say, a branch of that nation's defense ministry or, for that matter, against the foreign nation itself. The FSIA provides a specific guarantee that such a suit cannot continue (except in certain instances that, for purposes of my example, are not relevant). 28 U.S.C. §§ 1602-1605. It achieves this objective by authorizing the foreign government to remove the case to federal court where a federal judge will determine if the defendant is indeed a foreign government and, if so, dismiss the case. § 1441(d). What happens if the foreign sovereign removes the case to federal court only to have the federal judge mistakenly remand the case to state court? As in an ordinary case, the lawsuit may well continue in the state tribunal. But, if so, unlike the ordinary case (say, a wrongly remanded diversity or "arising under" case) but like Osborn, the removing party will have lost considerably more than a choice of forum. The removing party will have lost that which a different portion of the special statute sought to provide, namely, the immunity from suit that the FSIA sought to assure. That assurance forms a separate and central FSIA objective. The very purpose of sovereign immunity is to avoid subjecting a foreign sovereign to the rigors and "inconvenience of suit." Dole Food Co. v. Patrickson, 538 U.S. 468, 479, 123 S.Ct. *2423 1655, 155 L. Ed. 2d 643 (2003). In such a case, a state court likely will feel bound by the federal court's prior judgment on the lack of immunity (under state law-of-the-case doctrine) and this Court's review (of an adverse state-court judgment) will come too late. In such a case, the FSIA's basic objective (unrelated to choice of forum) will have become "weightless." Osborn, supra, at ___, 127 S.Ct., at 894-895. It is difficult to see how this conflict between the FSIA's basic objective and § 1447(d) is any less serious than the conflict at issue in Osborn. The statutory objective here, harmonious relations with foreign sovereigns, is more, not less, important. See Ex parte Peru, 318 U.S. 578, 587, 63 S. Ct. 793, 87 L. Ed. 1014 (1943) (exercising original writ to protect sovereign from erroneous District Court conclusion that it was not immune from suit). See also, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 35, 65 S. Ct. 530, 89 L. Ed. 729 (1945); Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L. Ed. 287 (1812); H.R.Rep. No. 94-1487, p. 13 (1976) (hereinafter H.R. Rep.) (FSIA intended to avoid "adverse foreign relations consequences"). Neither is a § 1447(d) exception here likely to undermine § 1447(d)'s basic purpose: avoiding the procedural delay that an added federal appeal would create. Avoiding that delay is important in a typical case where only choice of forum is at issue. But that same delay is necessary, indeed, crucial, in the special case where a foreign sovereign's immunity from suit is at issue. At the same time, foreign affairs is itself an exceptional topic, with special risks, special expertise, and special federal authority; hence, our finding a § 1447(d) exception in the FSIA is unlikely to lead courts to create a series of exceptions affecting more typical cases. See, e.g., Kircher v. Putnam Funds Trust, 547 U.S. ___, ___, 126 S. Ct. 2145, 2152-2153, 165 L. Ed. 2d 92 (2006) (avoidance of delay is § 1447(d)'s basic purpose). Finally, as in Osborn, the FSIA is a specific, later enacted statute. Cf. Osborn, supra, at ___, 127 S.Ct., at 895; see generally Long Island Care at Home, Ltd. v. Coke, ___ U.S. ___, ___, 127 S. Ct. 2339, 168 L. Ed. 2d 54, 2007 WL 1661472 (where statutory provisions are inconsistent, "normally the specific governs the general"); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384-385, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992); Simpson v. United States, 435 U.S. 6, 15, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978). Taken together, these considerations lead me to believe that, were a foreign noncommercial government entity's immunity from suit at issue, the FSIA would conflict with § 1447(d), leading a court properly to read the FSIA as implicitly creating an exception to § 1447(d), and thereby protecting the sovereign's right to appeal a wrongful remand order. The removing defendant in this case, of course, is not a foreign sovereign immune from suit. It is a foreign governmental entity that acts in a commercial capacity and consequently is subject to suit. 28 U.S.C. § 1605(a)(2). But the FSIA nonetheless creates an important, though different, conflict. That conflict arises because a different FSIA provision says, "[u]pon removal the action shall be tried by the court without jury." § 1441(d) (emphasis added); see H.R. Rep., at 33 ("[O]ne effect of removing an action under the new section 1441(d) will be to extinguish a demand for a jury trial made in the state court"); S.Rep. No. 94-1310, p. 32 (1976) (hereinafter S. Rep.) (same). A wrongful remand would destroy this statutory right. The state court trial would often proceed with a jury; and it is questionable whether even this Court could *2424 later set aside an adverse state court judgment for that reason—at least Congress seems to have thought as much. See H.R. Rep., at 33 ("Because the judicial power of the United States specifically encompasses actions between a State, or the Citizens thereof, and foreign States, this preemption of State court [jury trial] procedures in cases involving foreign sovereigns is clearly constitutional" (emphasis added; citations and internal quotation marks omitted)); S. Rep., at 32 (same). The conflict is important, this case is special, and we should resolve it by reading the FSIA as implicitly pre-empting the general application of § 1447(d). Indeed, I do not see how we could read the FSIA differently in this respect depending upon whether commercial or noncommercial sovereign activity is at issue. For these reasons, I believe that the Ninth Circuit correctly determined that it possessed legal authority to review the case. It is true, as the majority states, that Congress has in other contexts carved out certain removal orders as being specifically reviewable on appeal. Ante, at 2419-2420. The majority reads these specific statutes to suggest that had Congress intended § 1447(d) not to apply in FSIA cases, it could simply have said so. Ibid. However, in fact, for the reasons articulated above, I believe that Congress must have assumed the FSIA overrode § 1447. Congress enacted the FSIA soon after the Court's decision in Thermtron Products, 423 U.S., at 345, 96 S. Ct. 584, held that implicit § 1447(d) exceptions might exist. Cf. Osborn, 549 U.S., at ___, 127 S.Ct., at 894-895 (despite statutory silence, reading Westfall Act as overriding § 1447(d)). And, as I have said, the FSIA would otherwise fail to achieve Congress' basic objectives. Context and purpose make clear that few if any members of Congress could have wanted to block appellate review here. Were the Court to pay greater attention to statutory objectives and purposes and less attention to a technical parsing of language, it might agree. Were it to agree, we would exercise our interpretive obligation, not "lawmaking power," ante, at 2420-2421, n. 5, with increased fidelity to the intention of those to whom our Constitution delegates that lawmaking power, namely the Congress of the United States. And, law in this democracy would be all the better for it. II I part company with the Ninth Circuit on the merits. The Circuit held that the District Court's remand was proper because, in its view, Powerex is not "an organ of a ... political subdivision" of a "foreign state." 28 U.S.C. § 1603(b)(2) (emphasis added). Hence, it is not an "agency or instrumentality" of a foreign government and falls outside the scope of the FSIA's provision authorizing removal. § 1603(a); see generally California v. NRG Energy Inc., 391 F.3d 1011, 1025-1026 (2004). In my view, however, Powerex is "an organ" of the Province of British Columbia, a "political subdivision" of Canada. The record makes clear that Powerex is a government-owned and government-operated electric power distribution company, not meaningfully different from ordinary municipal electricity distributors, the Tennessee Valley Authority, or any foreign "nationalized" power producers and distributors, such as Britain's former Central Electricity Generating Board or Electricite de France. See generally C. Harris, Electricity Markets: Pricing, Structures, and Economics 15-20 (2006) (summarizing features of electricity companies in United States and Europe, among others); J. Nelson, Marginal Cost Pricing in Practice 3-6, 32, 37 (1964) (summarizing features of *2425 France hydropower industry). See also http://tva.com/ abouttva/index.htm (summarizing general features of Tennessee Valley Authority) (all Internet materials as visited June 8, 2007, and available in Clerk of Court's case file); Government Corporation Control Act, § 101, 59 Stat. 597-598 (describing Tennessee Valley Authority as "`wholly owned Government Corporation'"); Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 388-389, 115 S. Ct. 961, 130 L. Ed. 2d 902 (1995) (noting that corporate entities in Government Corporation Control Act were incorporated by other government-owned corporations); Dept. of Labor, Bureau of Labor Statistics, Career Guide to Industries, Utilities, online at http://www.bls.gov/oco/ cg/cgs018.htm (describing features of public run utilities); G. Rothwell & T. G & oacute;mez, Electricity Economics: Regulation and Deregulation 129-241 (2003) (comparing electricity markets and industries in California and various foreign nations). Powerex is itself owned and operated by BC Hydro, an entity that all apparently concede is governmental in nature. Brief for Respondents 38-40, 42. British Columbia's statutes create BC Hydro as a kind of government agency to produce water-generated electric power. Power Measures Act, S.B. C., ch. 40 (1964); App. to Pet. for Cert. 52a, 118a, 163a-169a. BC Hydro has a board of directors, all of whom are appointed by British Columbia's government. Id., at 58a-59a. It is an "agent of the [provincial] government and its powers may be exercised only as an agent of the government." Hydro Power Authority Act, R.S.B.C. ch. 212, § 3(1) (1996). The District Court concluded that BC Hydro is, in fact, a foreign sovereign entity entitled to immunity. 391 F.3d, at 1024. British Columbia's Minister of Energy issued a written directive ordering that BC Hydro create a subsidiary, Powerex, to carry out the specialized tasks of exporting hydro-generated electric power and of importing power, which it is then to distribute to British Columbia residents. App. 235-239, 250-251, 267. Powerex specifically carries out these obligations in accordance with various treaties between Canada and the United States. App. 133-155; App. to Pet. for Cert. 55a; see Treaty Between the United States of America and Canada Relating to Cooperative Development of the Water Resources of the Columbia River Basin, Jan. 17, 1961, [1964] 15 U.S.T. 1555, T.I.A.S. No. 5638, App. to Pet. for Cert. 61a-82a; Treaty Between Canada and the United States of America Relating to the Skagit River and Ross Lake, and the Seven Mile Reservoir on the Pend d'Oreille River, Apr. 2, 1984, 1469 U.N.T.S. 309, T.I.A.S. No. 11088, App. to Pet. for Cert. 138a-145a; British Columbia-Seattle Agreement (Mar. 30, 1984), App. 160-171. Powerex's board members consist of some of BC Hydro's board members and other members whom those members appoint. App. 233-235. The government's comptroller general reviews Powerex's financial operations and regulates the terms under which it conducts business. Financial Administration Act, R.S.B. C, ch. 138, §§ 4.1, 8(2)(c)(i), 75, 79.3 (1996) (FAA), Addendum to Brief for Petitioner 34-36, 40-42 (hereinafter Addendum). British Columbia's fiscal control statute refers to Powerex as a "`government body.'" FAA § 1, Addendum 31, 33. And other British Columbia laws refer to its employees as "`public office holders.'" Lobbyists Registration Act, S.B. C., ch. 42, § 1 (2001), Addendum 50. Powerex pays no income taxes. See Income Tax Act, R.S. C., ch. 1, §§ 149(1)(d), (d.2) (5th Supp., 1985), Addendum 45; App. to Pet. for Cert. 58a; *2426 Brief for Petitioner 31. The British Columbian government, through BC Hydro, has sole beneficial ownership and control of Powerex. App. 267. If Powerex earns a profit, that profit must be rebated directly or indirectly to British Columbia's residents. App. 215, 238. I can find no significant difference between Powerex and the classical government entities to which I previously referred. Supra, at ___. The Ninth Circuit noted that Powerex may earn a profit and that the Government of British Columbia does not provide financial support. And the Ninth Circuit thought these facts made a critical difference. But a well-run nationalized firm should make a reasonable profit; nor should it have to borrow from the government itself. See, e.g., Nelson, supra, at 8-12; Harris, Electricity Markets, at 125, 130-132; Rothwell & Gómez, supra, at 3-4. The relevant question is not whether Powerex earns a profit but where does that profit go? Here it does not go to private shareholders; it goes to the benefit of the public in payments to the province and reduced electricity prices. App. 215, 238. The Ninth Circuit also pointed out that certain provincial regulations that apply to other governmental departments do not apply to Powerex. That fact proves little. The Tennessee Valley Authority, which is "perhaps the best known of the American public corporations," First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 625, n. 15, 103 S. Ct. 2591, 77 L. Ed. 2d 46 (1983), is not subject to certain federal regulations regarding hiring that apply to other governmental departments. See, e.g., 16 U.S.C. § 831b. In sum, Powerex is the kind of government entity that Congress had in mind when it wrote the FSIA's "commercial activit[y]" provisions. See generally 28 U.S.C. § 1602 et seq.; H.R. Rep., at 15; S. Rep., at 14; Banco, supra, at 624-625, 103 S. Ct. 2591. For these reasons, I believe we should consider, and reverse, the Ninth Circuit's determination. With respect, I dissent.

Unlike the Court, I believe the District Court's remand order is reviewable on appeal. And, reviewing the decision below, I would hold that Powerex is an organ of the Government of British Columbia. I The majority concludes that (d) took from the Ninth Circuit the power to review the District Court's remand decision. The statutory argument is a strong one. Section 1447(c) says that, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded" to state court; and 1447(d), referring to subsection (c), adds that a district court "order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Thermtron Nonetheless this Court has found exceptions to 1447's seemingly blanket prohibition. See, e.g., In doing so, the Court has recognized that even a statute silent on the subject can create an important conflict with 1447(d)'s "no appellate review" instruction. And where that is so, we have, *2422 in fact, resolved the conflict by reading a later more specific statute as creating an implicit exception to 1447(d) (though did not say as much). at -896. The subject matter of the Foreign Sovereign Immunity Act of 's removal provision, foreign sovereigns, is special. And the FSIA creates serious conflicts with 1447(d)'s "no appellate review" instruction. The FSIA is later enacted and subject-matter specific. Consequently, I would read into the FSIA a similar exception to 1447(d), applicable here. illustrates my starting point: a conflict with 1447(d). The Westfall Act, the specific statute at issue in that case, provides for removal to federal court of a state-court lawsuit brought against a federal employee where the state-court lawsuit attacks employee actions within the scope of federal employment. 28 U.S.C. 2679(d)(2)-(3). The Westfall Act authorizes the Attorney General to certify that the employee's actions at issue fall within the scope of federal employment. And the Westfall Act says that the certification "conclusively establish[es]" that fact for removal purposes. 2679(d)(1)-(2). In we pointed out that 1447(d) would permit a district court, without appellate review, to remand in the face of a contrary Attorney General certification. 549 U.S., at -895. Doing so, without appellate review, would thereby permit the district court to substitute its own judgment (as to whether the employee's actions were within the federal "scope of employment") for that of the Attorney General. And the district court would thereby have the unreviewable power to make the Attorney General's determination non conclusive, contrary to what the statute says. Because 1447(d), if applied, would render this statutory instruction "weightless," we found a conflict with 1447(d). And we resolved the conflict in favor of the later enacted, more specific Westfall Act. at A similarly strong conflict exists here, albeit not with a separate removal provision, but rather with a comprehensive statutory scheme. To understand how that is so, imagine a case not now before us. Imagine that a private plaintiff brings a lawsuit in state court against a noncommercial division of a foreign nation's government, say, a branch of that nation's defense ministry or, for that matter, against the foreign nation itself. The FSIA provides a specific guarantee that such a suit cannot continue (except in certain instances that, for purposes of my example, are not relevant). 28 U.S.C. 1602-1605. It achieves this objective by authorizing the foreign government to remove the case to federal court where a federal judge will determine if the defendant is indeed a foreign government and, if so, dismiss the case. 1441(d). What happens if the foreign sovereign removes the case to federal court only to have the federal judge mistakenly remand the case to state court? As in an ordinary case, the lawsuit may well continue in the state tribunal. But, if so, unlike the ordinary case (say, a wrongly remanded diversity or "arising under" case) but like the removing party will have lost considerably more than a choice of forum. The removing party will have lost that which a different portion of the special statute sought to provide, namely, the immunity from suit that the FSIA sought to assure. That assurance forms a separate and central FSIA objective. The very purpose of sovereign immunity is to avoid subjecting a foreign sovereign to the rigors and "inconvenience of suit." Dole Food In such a case, a state court likely will feel bound by the federal court's prior judgment on the lack of immunity (under state law-of-the-case doctrine) and this Court's review (of an adverse state-court judgment) will come too late. In such a case, the FSIA's basic objective (unrelated to choice of forum) will have become "weightless." at -895. It is difficult to see how this conflict between the FSIA's basic objective and 1447(d) is any less serious than the conflict at issue in The statutory objective here, harmonious relations with foreign sovereigns, is more, not less, important. See Ex parte Peru, See also, e.g., Republic of ; Schooner ; H.R.Rep. No. 94-1487, p. 13 (hereinafter H.R. Rep.) (FSIA intended to avoid "adverse foreign relations consequences"). Neither is a 1447(d) exception here likely to undermine 1447(d)'s basic purpose: avoiding the procedural delay that an added federal appeal would create. Avoiding that delay is important in a typical case where only choice of forum is at issue. But that same delay is necessary, indeed, crucial, in the special case where a foreign sovereign's immunity from suit is at issue. At the same time, foreign affairs is itself an exceptional topic, with special risks, special expertise, and special federal authority; hence, our finding a 1447(d) exception in the FSIA is unlikely to lead courts to create a series of exceptions affecting more typical cases. See, e.g., (avoidance of delay is 1447(d)'s basic purpose). Finally, as in the FSIA is a specific, later enacted statute. Cf. at ; see generally Long Island Care at Home, WL 1661472 (where statutory provisions are inconsistent, "normally the specific governs the general"); ; 4 U.S. 6, Taken together, these considerations lead me to believe that, were a foreign noncommercial government entity's immunity from suit at issue, the FSIA would conflict with 1447(d), leading a court properly to read the FSIA as implicitly creating an exception to 1447(d), and thereby protecting the sovereign's right to appeal a wrongful remand order. The removing defendant in this case, of course, is not a foreign sovereign immune from suit. It is a foreign governmental entity that acts in a commercial capacity and consequently is subject to suit. 28 U.S.C. 1605(a)(2). But the FSIA nonetheless creates an important, though different, conflict. That conflict arises because a different FSIA provision says, "[u]pon removal the action shall be tried by the court without jury." 1441(d) ; see H.R. Rep., at 33 ("[O]ne effect of removing an action under the new section 1441(d) will be to extinguish a demand for a jury trial made in the state court"); S.Rep. No. 94-1310, p. 32 (hereinafter S. Rep.) (same). A wrongful remand would destroy this statutory right. The state court trial would often proceed with a jury; and it is questionable whether even this Court could *2424 later set aside an adverse state court judgment for that reason—at least Congress seems to have thought as much. See H.R. Rep., at 33 ("Because the judicial power of the United States specifically encompasses actions between a State, or the Citizens thereof, and foreign States, this preemption of State court [jury trial] procedures in cases involving foreign sovereigns is clearly constitutional" (emphasis added; citations and internal quotation marks omitted)); S. Rep., at 32 (same). The conflict is important, this case is special, and we should resolve it by reading the FSIA as implicitly pre-empting the general application of 1447(d). Indeed, I do not see how we could read the FSIA differently in this respect depending upon whether commercial or noncommercial sovereign activity is at issue. For these reasons, I believe that the Ninth Circuit correctly determined that it possessed legal authority to review the case. It is true, as the majority states, that Congress has in other contexts carved out certain removal orders as being specifically reviewable on appeal. Ante, at 2419-2420. The majority reads these specific statutes to suggest that had Congress intended 1447(d) not to apply in FSIA cases, it could simply have said so. However, in fact, for the reasons articulated above, I believe that Congress must have assumed the FSIA overrode 1447. Congress enacted the FSIA soon after the Court's decision in Thermtron held that implicit 1447(d) exceptions might exist. Cf. 549 U.S., at -895 (despite statutory silence, reading Westfall Act as overriding 1447(d)). And, as I have said, the FSIA would otherwise fail to achieve Congress' basic objectives. Context and purpose make clear that few if any members of Congress could have wanted to block appellate review here. Were the Court to pay greater attention to statutory objectives and purposes and less attention to a technical parsing of language, it might agree. Were it to agree, we would exercise our interpretive obligation, not "lawmaking power," ante, at 2420-2421, n. 5, with increased fidelity to the intention of those to whom our Constitution delegates that lawmaking power, namely the Congress of the United States. And, law in this democracy would be all the better for it. II I part company with the Ninth Circuit on the merits. The Circuit held that the District Court's remand was proper because, in its view, Powerex is not "an organ of a political subdivision" of a "foreign state." 28 U.S.C. 1603(b)(2) Hence, it is not an "agency or instrumentality" of a foreign government and falls outside the scope of the FSIA's provision authorizing removal. 1603(a); see generally In my view, however, Powerex is "an organ" of the Province of British Columbia, a "political subdivision" of Canada. The record makes clear that Powerex is a government-owned and government-operated electric power distribution company, not meaningfully different from ordinary municipal electricity distributors, the Tennessee Valley Authority, or any foreign "nationalized" power producers and distributors, such as Britain's former Central Electricity Generating Board or Electricite de France. See generally C. Harris, Electricity Markets: Pricing, Structures, and Economics -20 (summarizing features of electricity companies in United States and Europe, among others); J. Marginal Cost Pricing in Practice 3-6, 32, 37 (1964) (summarizing features of *2425 France hydropower industry). See also http://tva.com/ abouttva/index.htm (summarizing general features of Tennessee Valley Authority) (all Internet materials as visited June 8, and available in Clerk of Court's case file); Government Corporation Control Act, 101, -598 (describing Tennessee Valley Authority as "`wholly owned Government Corporation'"); 1 S. Ct. 961, ; Dept. of Labor, Bureau of Labor Statistics, Career Guide to Industries, Utilities, online at http://www.bls.gov/oco/ cg/cgs018.htm (describing features of public run utilities); G. Rothwell & T. G & oacute;mez, Electricity Economics: Regulation and Deregulation 129-241 (comparing electricity markets and industries in California and various foreign nations). Powerex is itself owned and operated by BC Hydro, an entity that all apparently concede is governmental in nature. Brief for Respondents 38-40, 42. British Columbia's statutes create BC Hydro as a kind of government agency to produce water-generated electric power. Power Measures Act, S.B. C., ch. 40 (1964); App. to Pet. for Cert. 52a, 118a, 163a-169a. BC Hydro has a board of directors, all of whom are appointed by British Columbia's government. at 58a-59a. It is an "agent of the [provincial] government and its powers may be exercised only as an agent of the government." Hydro Power Authority Act, R.S.B.C. ch. 212, 3(1) (1996). The District Court concluded that BC Hydro is, in fact, a foreign sovereign entity entitled to British Columbia's Minister of Energy issued a written directive ordering that BC Hydro create a subsidiary, Powerex, to carry out the specialized tasks of exporting hydro-generated electric power and of importing power, which it is then to distribute to British Columbia residents. App. 2-239, 250-251, 267. Powerex specifically carries out these obligations in accordance with various treaties between Canada and the United States. App. 133-5; App. to Pet. for Cert. 55a; see Treaty Between the United States of America and Canada Relating to Cooperative Development of the Water Resources of the Columbia River Basin, Jan. 17, 1961, [1964] U.S.T. 55, T.I.A.S. No. 5638, App. to Pet. for Cert. 61a-82a; Treaty Between Canada and the United States of America Relating to the Skagit River and Ross Lake, and the Seven Mile Reservoir on the Pend d'Oreille River, Apr. 2, 1984, 1469 U.N.T.S. 309, T.I.A.S. No. 11088, App. to Pet. for Cert. 138a-145a; British Columbia-Seattle Agreement (Mar. 30, 1984), App. 160-171. Powerex's board members consist of some of BC Hydro's board members and other members whom those members appoint. App. 233-2. The government's comptroller general reviews Powerex's financial operations and regulates the terms under which it conducts business. Financial Administration Act, R.S.B. C, ch. 138, 4.1, 8(2)(c)(i), 75, 79.3 (1996) (FAA), Addendum to Brief for Petitioner 34-36, 40-42 (hereinafter Addendum). British Columbia's fiscal control statute refers to Powerex as a "`government body.'" FAA 1, Addendum 31, 33. And other British Columbia laws refer to its employees as "`public office holders.'" Lobbyists Registration Act, S.B. C., ch. 42, 1 (2001), Addendum 50. Powerex pays no income taxes. See Income Tax Act, R.S. C., ch. 1, 149(1)(d), (d.2) (5th Supp., 1985), Addendum 45; App. to Pet. for Cert. 58a; *2426 Brief for Petitioner 31. The British Columbian government, through BC Hydro, has sole beneficial ownership and control of Powerex. App. 267. If Powerex earns a profit, that profit must be rebated directly or indirectly to British Columbia's residents. App. 2, 238. I can find no significant difference between Powerex and the classical government entities to which I previously referred. at The Ninth Circuit noted that Powerex may earn a profit and that the Government of British Columbia does not provide financial support. And the Ninth Circuit thought these facts made a critical difference. But a well-run nationalized firm should make a reasonable profit; nor should it have to borrow from the government itself. See, e.g., ; Harris, Electricity Markets, at 125, 130-132; Rothwell & The relevant question is not whether Powerex earns a profit but where does that profit go? Here it does not go to private shareholders; it goes to the benefit of the public in payments to the province and reduced electricity prices. App. 2, 238. The Ninth Circuit also pointed out that certain provincial regulations that apply to other governmental departments do not apply to Powerex. That fact proves little. The Tennessee Valley Authority, which is "perhaps the best known of the American public corporations," First Nat. City 625, n. is not subject to certain federal regulations regarding hiring that apply to other governmental departments. See, e.g., 16 U.S.C. 831b. In sum, Powerex is the kind of government entity that Congress had in mind when it wrote the FSIA's "commercial activit[y]" provisions. See generally 28 U.S.C. 1602 et seq.; H.R. Rep., at ; S. Rep., at 14; For these reasons, I believe we should consider, and reverse, the Ninth Circuit's determination. With respect, I dissent.

Justice Ginsburg

majority

Hughes v. Talen Energy Marketing, LLC

2016-04-19

https://www.courtlistener.com/opinion/3195550/hughes-v-talen-energy-marketing-llc/

https://www.courtlistener.com/api/rest/v3/clusters/3195550/

2015-042

The Federal Power Act (FPA), 41 Stat. 1063, as amended, 16 U.S. C. §791a et seq., vests in the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over wholesale sales of electricity in the interstate market. FERC’s regulatory scheme includes an auction-based market mechanism to ensure wholesale rates that are just and reasonable. FERC’s scheme, in Maryland’s view, provided insufficient incentive for new electricity genera­ tion in the State. Maryland therefore enacted its own regulatory program. Maryland’s program provides subsi­ dies, through state-mandated contracts, to a new genera­ tor, but conditions receipt of those subsidies on the new 2 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court generator selling capacity into a FERC-regulated whole­ sale auction. In a suit initiated by competitors of Mary­ land’s new electricity generator, the Court of Appeals for the Fourth Circuit held that Maryland’s scheme imper­ missibly intrudes upon the wholesale electricity market, a domain Congress reserved to FERC alone. We affirm the Fourth Circuit’s judgment. I A Under the FPA, FERC has exclusive authority to regu­ late “the sale of electric energy at wholesale in interstate commerce.” §824(b)(1). A wholesale sale is defined as a “sale of electric energy to any person for resale.” §824(d). The FPA assigns to FERC responsibility for ensuring that “[a]ll rates and charges made, demanded, or received by any public utility for or in connection with the transmis­ sion or sale of electric energy subject to the jurisdiction of the Commission . . . shall be just and reasonable.” §824d(a). See also §824e(a) (if a rate or charge is found to be unjust or unreasonable, “the Commission shall deter­ mine the just and reasonable rate”). “But the law places beyond FERC’s power, and leaves to the States alone, the regulation of ‘any other sale’—most notably, any retail sale—of electricity.” FERC v. Electric Power Supply Assn., 577 U. S. ___, ___ (2016) (EPSA) (slip op., at 1) (quoting §824(b)). The States’ reserved authority includes control over in-state “facilities used for the generation of electric energy.” §824(b)(1); see Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 205 (1983) (“Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States.”). “Since the FPA’s passage, electricity has increasingly become a competitive interstate business, and FERC’s role Cite as: 578 U. S. ____ (2016) 3 Opinion of the Court has evolved accordingly.” EPSA, 577 U. S., at ___ (slip op., at 4). Until relatively recently, most state energy markets were vertically integrated monopolies—i.e., one entity, often a state utility, controlled electricity generation, transmission, and sale to retail consumers. Over the past few decades, many States, including Maryland, have deregulated their energy markets. In deregulated mar­ kets, the organizations that deliver electricity to retail consumers—often called “load serving entities” (LSEs)— purchase that electricity at wholesale from independent power generators. To ensure reliable transmission of electricity from independent generators to LSEs, FERC has charged nonprofit entities, called Regional Transmis­ sion Organizations (RTOs) and Independent System Op­ erators (ISOs), with managing certain segments of the electricity grid. Interstate wholesale transactions in deregulated mar­ kets typically occur through two mechanisms. The first is bilateral contracting: LSEs sign agreements with genera­ tors to purchase a certain amount of electricity at a certain rate over a certain period of time. After the parties have agreed to contract terms, FERC may review the rate for reasonableness. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U.S. 527, 546–548 (2008) (Because rates set through good-faith arm’s-length negotiation are presumed reasonable, “FERC may abrogate a valid contract only if it harms the public interest.”). Second, RTOs and ISOs administer a number of competitive wholesale auctions: for example, a “same­ day auction” for immediate delivery of electricity to LSEs facing a sudden spike in demand; a “next-day auction” to satisfy LSEs’ anticipated near-term demand; and a “capac­ ity auction” to ensure the availability of an adequate supply of power at some point far in the future. These cases involve the capacity auction administered by PJM Interconnection (PJM), an RTO that oversees the 4 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court electricity grid in all or parts of 13 mid-Atlantic and Mid­ western States and the District of Columbia. The PJM capacity auction functions as follows. PJM predicts elec­ tricity demand three years ahead of time, and assigns a share of that demand to each participating LSE. Owners of capacity to produce electricity in three years’ time bid to sell that capacity to PJM at proposed rates. PJM accepts bids, beginning with the lowest proposed rate, until it has purchased enough capacity to satisfy projected demand. No matter what rate they listed in their original bids, all accepted capacity sellers receive the highest accepted rate, which is called the “clearing price.”1 LSEs then must purchase from PJM, at the clearing price, enough electric­ ity to satisfy their PJM-assigned share of overall projected demand. The capacity auction serves to identify need for new generation: A high clearing price in the capacity auction encourages new generators to enter the market, increasing supply and thereby lowering the clearing price in same-day and next-day auctions three years’ hence; a low clearing price discourages new entry and encourages retirement of existing high-cost generators.2 The auction is designed to accommodate long-term bilateral contracts for capacity. If an LSE has acquired a —————— 1 For example, if four power plants bid to sell capacity at, respectively, $10/unit, $20/unit, $30/unit, and $40/unit, and the first three plants provide enough capacity to satisfy projected demand, PJM will pur­ chase capacity only from those three plants, each of which will receive $30/unit, the clearing price. 2 Because PJM operates the electricity grid in a very large region of the country, PJM divides its overall grid into geographic subregions and makes adjustments to the clearing price to reflect operating condi­ tions in those subregions. For instance, PJM may pay a higher rate in or near areas where transmission-line congestion limits the amount of electricity that can be imported from other areas. The elevated clearing price might encourage a company to site a new power plant in a subre­ gion where the need for local generation is great rather than elsewhere in PJM’s grid. Cite as: 578 U. S. ____ (2016) 5 Opinion of the Court certain amount of capacity through a long-term bilateral contract with a generator, the LSE—not the generator—is considered the owner of that capacity for purposes of the auction. The LSE sells that capacity into the auction, where it counts toward the LSE’s assigned share of PJM- projected demand, thereby reducing the net costs of the LSE’s required capacity purchases from PJM.3 LSEs generally bid their capacity into the auction at a price of $0, thus guaranteeing that the capacity will clear at any price. Such bidders are called “price takers.” Because the fixed costs of building generating facilities often vastly exceed the variable costs of producing electricity, many generators also function as price takers. FERC extensively regulates the structure of the PJM capacity auction to ensure that it efficiently balances supply and demand, producing a just and reasonable clearing price. See EPSA, 577 U. S., at ___ (slip op., at 5) (the clearing price is “the price an efficient market would produce”). Two FERC rules are particularly relevant to —————— 3 To take a simplified example, assume an LSE has signed a long­ term bilateral contract with a generator to purchase 50 units of electric­ ity annually at a price of $40/unit (total annual cost: $2,000). In a given year when the auction clearing price is $50/unit, assume PJM requires the LSE to purchase 100 units of electricity to satisfy its share of projected demand. The LSE bids the 50 units of capacity it already owns into the PJM auction, and PJM pays the LSE $2,500 for those 50 units. Although the LSE then must pay PJM $5,000 for the 100 units it must purchase to satisfy projected demand, the net cost to the LSE of auction participation is only $2,500. Note that the effective price the LSE pays for 50 of the 100 units it must purchase from PJM—the amount purchased through the long-term contract—is the contract price, not the clearing price. That is, the LSE pays the utility $2,000 for 50 units of capacity, receives $2,500 from PJM after selling that capacity into the auction, and then pays $2,500 to PJM to purchase 50 units of capacity, resulting in a net cost of $2,000—the contract price— for those 50 units. The LSE, of course, must pay the full clearing price—$50/unit—for the other 50 units it is obliged to purchase to satisfy its full share of projected demand. 6 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court these cases. First, the Minimum Offer Price Rule (MOPR) requires new generators to bid capacity into the auction at or above a price specified by PJM, unless those generators can prove that their actual costs fall below the MOPR price. Once a new generator clears the auction at the MOPR price, PJM deems that generator an efficient en­ trant and exempts it from the MOPR going forward, allow­ ing it to bid its capacity into the auction at any price it elects, including $0. Second, the New Entry Price Ad­ justment (NEPA) guarantees new generators, under cer­ tain circumstances, a stable capacity price for their first three years in the market. The NEPA’s guarantee elimi­ nates, for three years, the risk that the new generator’s entry into the auction might so decrease the clearing price as to prevent that generator from recovering its costs. B Around 2009, Maryland electricity regulators became concerned that the PJM capacity auction was failing to encourage development of sufficient new in-state genera­ tion. Because Maryland sits in a particularly congested part of the PJM grid, importing electricity from other parts of the grid into the State is often difficult. To ad­ dress this perceived supply shortfall, Maryland regulators proposed that FERC extend the duration of the NEPA from three years to ten. FERC rejected the proposal. PJM, 126 FERC ¶62,563 (2009). “[G]iving new suppliers longer payments and assurances unavailable to existing suppliers,” FERC reasoned, would improperly favor new generation over existing generation, throwing the auc­ tion’s market-based price-setting mechanism out of bal­ ance. Ibid. See also PJM, 128 FERC ¶61,789 (2009) (order on petition for rehearing) (“Both new entry and retention of existing efficient capacity are necessary to ensure reliability and both should receive the same price so that the price signals are not skewed in favor of new Cite as: 578 U. S. ____ (2016) 7 Opinion of the Court entry.”). Shortly after FERC rejected Maryland’s NEPA proposal, the Maryland Public Service Commission promulgated the Generation Order at issue here. Under the order, Mary­ land solicited proposals from various companies for con­ struction of a new gas-fired power plant at a particular location, and accepted the proposal of petitioner CPV Maryland, LLC (CPV). Maryland then required LSEs to enter into a 20-year pricing contract (the parties refer to this contract as a “contract for differences”) with CPV at a rate CPV specified in its accepted proposal.4 Unlike a traditional bilateral contract for capacity, the contract for differences does not transfer ownership of capacity from CPV to the LSEs. Instead, CPV sells its capacity on the PJM market, but Maryland’s program guarantees CPV the contract price rather than the auction clearing price. If CPV’s capacity clears the PJM capacity auction and the clearing price falls below the price guaranteed in the contract for differences, Maryland LSEs pay CPV the difference between the contract price and the clearing price. The LSEs then pass the costs of these required payments along to Maryland consumers in the form of higher retail prices. If CPV’s capacity clears the auction and the clearing price exceeds the price guaranteed in the contract for differences, CPV pays the LSEs the difference between the contract price and the clearing price, and the LSEs then pass the savings along to consumers in the form of lower retail prices. Because CPV sells its capacity exclusively in the PJM auction market, CPV receives no payment from Maryland LSEs or PJM if its capacity fails to clear the auction. But CPV is guaranteed a certain rate if its capacity does clear, so the contract’s terms encourage —————— 4 New Jersey implemented a similar program around the same time. The duration of the price guarantee for the New Jersey program is 15 years rather than Maryland’s 20. 8 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court CPV to bid its capacity into the auction at the lowest possible price.5 Prior to enactment of the Maryland program, PJM had exempted new state-supported generation from the MOPR, allowing such generation to bid capacity into the —————— 5 Two simplified examples illustrate how Maryland’s program inter­ acts with the PJM capacity auction. First, consider a hypothetical situation where the clearing price falls below the price guaranteed in the contract for differences. Assume that CPV’s plant produces 10,000 units of electricity a year, and that the 20-year price guaranteed under the contract is $30/unit. Assume further that, in a given year during the duration of the price guarantee, the clearing price is $20/unit, and CPV’s capacity clears the auction. CPV receives payments from Mary­ land LSEs of $10/unit, or $100,000, and payments from PJM of $20/unit, or $200,000. The rate CPV receives from the capacity auction is therefore $30/unit—the contract price—not $20/unit—the clearing price. Under PJM auction rules, Maryland LSEs then must purchase from PJM, at the clearing price of $20/unit, enough capacity to satisfy their assigned shares of anticipated demand. Assume that PJM re­ quires Maryland LSEs to purchase 40,000 units of capacity. Total capacity-auction expenses for Maryland LSEs would therefore include both the payment to CPV ($100,000) and the full cost of purchasing capacity from PJM ($800,000), or $900,000. Absent Maryland’s pro­ gram, the LSEs’ capacity-auction expenses would have included only the total cost of capacity purchases from PJM, or $800,000. Now assume instead that the clearing price in a given year is $40/unit, which exceeds the $30/unit contract price, and that CPV’s capacity clears the auction. CPV receives payments from PJM of $40/unit, or $400,000. CPV then must pay Maryland LSEs the differ­ ence between the contract price and the clearing price—in this case, $10/unit, or $100,000. The rate CPV receives from the capacity auction is therefore the contract price—$30/unit—the same price CPV received in the above example. Maryland LSEs then must purchase from PJM, at the clearing price of $40/unit, enough capacity to satisfy their share of anticipated demand. Assume that PJM again requires Maryland LSEs to purchase 40,000 units of capacity. Total capacity-auction expenses for Maryland LSEs would therefore include the full cost of capacity purchases from PJM ($1,600,000), minus the payment from CPV ($100,000), or $1,500,000. Absent Maryland’s program, the LSEs would have had to pay $1,600,000 to PJM without receiving any offset­ ting payments from CPV. Cite as: 578 U. S. ____ (2016) 9 Opinion of the Court auction at $0 without first clearing at the MOPR price. Responding to a complaint filed by incumbent generators in the Maryland region who objected to Maryland’s pro­ gram (and the similar New Jersey program), FERC elimi­ nated this exemption. PJM, 135 FERC ¶61,106 (2011). See also 137 FERC ¶61,145 (2011) (order on petition for rehearing) (“Our intent is not to pass judgment on state and local policies and objectives with regard to the devel­ opment of new capacity resources, or unreasonably inter­ fere with those objectives. We are forced to act, however, when subsidized entry supported by one state’s or locali­ ty’s policies has the effect of disrupting the competitive price signals that PJM’s [capacity auction] is designed to produce, and that PJM as a whole, including other states, rely on to attract sufficient capacity.”); New Jersey Bd. of Pub. Util. v. FERC, 744 F.3d 74, 79–80 (CA3 2014) (up­ holding FERC’s elimination of the state-supported genera­ tion exemption). In the first year CPV bid capacity from its new plant into the PJM capacity auction, that capacity cleared the auction at the MOPR rate, so CPV was there­ after eligible to function as a price taker. In addition to seeking the elimination of the state- supported generation exemption, incumbent generators— respondents here—brought suit in the District of Mary­ land against members of the Maryland Public Service Commission in their official capacities. The incumbent generators sought a declaratory judgment that Maryland’s program violates the Supremacy Clause by setting a wholesale rate for electricity and by interfering with FERC’s capacity-auction policies.6 CPV intervened as a —————— 6 Because neither CPV nor Maryland has challenged whether plain­ tiffs may seek declaratory relief under the Supremacy Clause, the Court assumes without deciding that they may. See Brief for Public Utility Law Project of New York, Inc., as Amicus Curiae 21 (arguing that the incumbent generators should have been required to exhaust administrative remedies before filing suit). 10 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court defendant. After a six-day bench trial, the District Court issued a declaratory judgment holding that Maryland’s program improperly sets the rate CPV receives for inter­ state wholesale capacity sales to PJM. PPL Energyplus, LLC v. Nazarian, 974 F. Supp. 2d 790, 840 (Md. 2013). “While Maryland may retain traditional state authority to regulate the development, location, and type of power plants within its borders,” the District Court explained, “the scope of Maryland’s power is necessarily limited by FERC’s exclusive authority to set wholesale energy and capacity prices.” Id., at 829.7 The Fourth Circuit affirmed. Relying on this Court’s decision in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 370 (1988), the Fourth Circuit observed that state laws are preempted when they “den[y] full effect to the rates set by FERC, even though [they do] not seek to tamper with the actual terms of an interstate transaction.” PPL EnergyPlus, LLC v. Nazarian, 753 F.3d 467, 476 (2014). Maryland’s program, the Fourth Circuit reasoned, “functionally sets the rate that CPV receives for its sales in the PJM auction,” “a FERC- approved market mechanism.” Id., at 476–477. “[B]y adopting terms and prices set by Maryland, not those sanctioned by FERC,” the Fourth Circuit concluded, Mary­ land’s program “strikes at the heart of the agency’s statu­ tory power.” Id., at 478.8 The Fourth Circuit cautioned that it “need not express an opinion on other state efforts to encourage new generation, such as direct subsidies or —————— 7 Respondents also raised arguments under the Dormant Commerce Clause and 42 U.S. C. §1983. The District Court rejected those argu­ ments, PPL Energyplus, LLC v. Nazarian, 974 F. Supp. 2d 790, 841– 855 (Md. 2013), the Fourth Circuit did not address them, and they are irrelevant at this stage. 8 For the same reason, the Third Circuit found New Jersey’s similar program preempted. PPL Energyplus, LLC v. Solomon, 766 F.3d 241, 246 (2014). Cite as: 578 U. S. ____ (2016) 11 Opinion of the Court tax rebates, that may or may not differ in important ways from the Maryland initiative.” Ibid. The Fourth Circuit then held that Maryland’s program impermissibly conflicts with FERC policies. Maryland’s program, the Fourth Circuit determined, “has the poten­ tial to seriously distort the PJM auction’s price signals,” undermining the incentive structure FERC has approved for construction of new generation. Ibid. Moreover, the Fourth Circuit explained, Maryland’s program “conflicts with NEPA” by providing a 20-year price guarantee to a new entrant—even though FERC refused Maryland’s request to extend the duration of the NEPA past three years. Id., at 479. We granted certiorari, 577 U. S. ___ (2015), and now affirm. II The Supremacy Clause makes the laws of the United States “the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary not­ withstanding.” U. S. Const., Art. VI, cl. 2. Put simply, federal law preempts contrary state law. “Our inquiry into the scope of a [federal] statute’s pre-emptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case.” Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008) (internal quotation marks omitted). A state law is preempted where “Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,” Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U.S. 493, 509 (1989), as well as “where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000) (brackets 12 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court and internal quotation marks omitted). We agree with the Fourth Circuit’s judgment that Mary­ land’s program sets an interstate wholesale rate, con­ travening the FPA’s division of authority between state and federal regulators. As earlier recounted, see supra, at 2, the FPA allocates to FERC exclusive jurisdiction over “rates and charges . . . received . . . for or in connection with” interstate wholesale sales. §824d(a). Exercising this authority, FERC has approved the PJM capacity auction as the sole ratesetting mechanism for sales of capacity to PJM, and has deemed the clearing price per se just and reasonable. Doubting FERC’s judgment, Mary­ land—through the contract for differences—requires CPV to participate in the PJM capacity auction, but guarantees CPV a rate distinct from the clearing price for its inter­ state sales of capacity to PJM. By adjusting an interstate wholesale rate, Maryland’s program invades FERC’s regulatory turf. See EPSA, 577 U. S., at ___ (slip op., at 26) (“The FPA leaves no room either for direct state regulation of the prices of interstate wholesales or for regulation that would indirectly achieve the same result.” (internal quotation marks omitted)).9 That Maryland was attempting to encourage construc­ tion of new in-state generation does not save its program. States, of course, may regulate within the domain Con­ gress assigned to them even when their laws incidentally —————— 9 According to Maryland and CPV, the payments guaranteed under Maryland’s program are consideration for CPV’s compliance with various state-imposed conditions, i.e., the requirements that CPV build a certain type of generator, at a particular location, that would produce a certain amount of electricity over a particular period of time. The payments, Maryland and CPV continue, are therefore separate from the rate CPV receives for its wholesale sales of capacity to PJM. But because the payments are conditioned on CPV’s capacity clearing the auction—and, accordingly, on CPV selling that capacity to PJM—the payments are certainly “received . . . in connection with” interstate wholesale sales to PJM. 16 U.S. C. §824d(a). Cite as: 578 U. S. ____ (2016) 13 Opinion of the Court affect areas within FERC’s domain. See Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___ (2015) (slip op., at 11) (whether the Natural Gas Act (NGA) preempts a particu­ lar state law turns on “the target at which the state law aims”).10 But States may not seek to achieve ends, how­ ever legitimate, through regulatory means that intrude on FERC’s authority over interstate wholesale rates, as Maryland has done here. See ibid. (distinguishing be­ tween “measures aimed directly at interstate purchasers and wholesalers for resale, and those aimed at subjects left to the States to regulate” (internal quotation marks omitted)).11 The problem we have identified with Maryland’s pro­ gram mirrors the problems we identified in Mississippi Power & Light and Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953 (1986). In each of those cases, a State determined that FERC had failed to ensure the reasonableness of a wholesale rate, and the State there­ fore prevented a utility from recovering—through retail rates—the full cost of wholesale purchases. See Missis- sippi Power & Light, 487 U.S., at 360–364; Nantahala, —————— 10 Although Oneok, Inc. v. Learjet, Inc., 575 U. S. ___ (2015), involved the NGA rather than the FPA, the relevant provisions of the two statutes are analogous. This Court has routinely relied on NGA cases in determining the scope of the FPA, and vice versa. See, e.g., id., at 14–15 (discussing FPA cases while determining the preemptive scope of the NGA). 11 Maryland’s program, Maryland and CPV assert, is consistent with federal law because FERC has accommodated the program by eliminat­ ing the MOPR’s state-supported generation exception. Even assuming that this change has prevented Maryland’s program from distorting the auction’s price signals, however—a point the parties dispute— Maryland cannot regulate in a domain Congress assigned to FERC and then require FERC to accommodate Maryland’s intrusion. See North- west Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U.S. 493, 518 (1989) (“The NGA does not require FERC to regulate around a state rule the only purpose of which is to influence purchasing decisions of interstate pipelines, however that rule is labeled.”). 14 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court 476 U.S., at 956–962. This Court invalidated the States’ attempts to second-guess the reasonableness of interstate wholesale rates. “ ‘Once FERC sets such a rate,’ ” we ob­ served in Mississippi Power & Light, “ ‘a State may not conclude in setting retail rates that the FERC-approved wholesale rates are unreasonable. A State must rather give effect to Congress’ desire to give FERC plenary au­ thority over interstate wholesale rates, and to ensure that the States do not interfere with this authority.’ ” 487 U.S., at 373 (quoting Nantahala, 476 U.S., at 966). True, Maryland’s program does not prevent a utility from recov­ ering through retail sales a cost FERC mandated it in- cur—Maryland instead guarantees CPV a certain rate for capacity sales to PJM regardless of the clearing price. But Mississippi Power & Light and Nantahala make clear that States interfere with FERC’s authority by disregarding interstate wholesale rates FERC has deemed just and reasonable, even when States exercise their traditional authority over retail rates or, as here, in-state generation. The contract for differences, Maryland and CPV re­ spond, is indistinguishable from traditional bilateral contracts for capacity, which FERC has long accommo­ dated in the auction. See supra, at 4–5, and n. 3. But the contract at issue here differs from traditional bilateral contracts in this significant respect: The contract for dif­ ferences does not transfer ownership of capacity from one party to another outside the auction. Instead, the contract for differences operates within the auction; it mandates that LSEs and CPV exchange money based on the cost of CPV’s capacity sales to PJM. Notably, because the con­ tract for differences does not contemplate the sale of ca­ pacity outside the auction, Maryland and CPV took the position, until the Fourth Circuit issued its decision, that the rate in the contract for differences is not subject to FERC’s reasonableness review. See §824(b)(1) (FERC has jurisdiction over contracts for “the sale of electric energy at Cite as: 578 U. S. ____ (2016) 15 Opinion of the Court wholesale in interstate commerce.” (emphasis added)).12 Our holding is limited: We reject Maryland’s program only because it disregards an interstate wholesale rate required by FERC. We therefore need not and do not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Nothing in this opinion should be read to foreclose Maryland and other States from encouraging production of new or clean generation through measures “untethered to a generator’s wholesale market participation.” Brief for Respondents 40. So long as a State does not condition payment of funds on capacity clearing the auction, the State’s program would not suffer from the fatal defect that renders Mary­ land’s program unacceptable.13 * * * For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is Affirmed. —————— 12 Our opinion does not call into question whether generators and LSEs may enter into long-term financial hedging contracts based on the auction clearing price. Such contracts, also frequently termed contracts for differences, do not involve state action to the same degree as Mary­ land’s program, which compels private actors (LSEs) to enter into contracts for differences—like it or not—with a generator that must sell its capacity to PJM through the auction. 13 Because the reasons we have set out suffice to invalidate Mary­ land’s program, we do not resolve whether, as the incumbent genera­ tors also assert, Maryland’s program is preempted because it counter­ acts FERC’s refusal to extend the NEPA’s duration, or because it interferes with the capacity auction’s price signals. Cite as: 578 U. S. ____ (2016) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–614 and 14–623 _________________ W. KEVIN HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISSION, ET AL., PETITIONERS 14–614 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL. CPV MARYLAND, LLC, PETITIONER 14–623 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL.

The Federal Power Act (FPA), as amended, 16 U.S. C. et seq., vests in the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over wholesale sales of electricity in the interstate market. FERC’s regulatory scheme includes an auction-based market mechanism to ensure wholesale rates that are just and reasonable. FERC’s scheme, in Maryland’s view, provided insufficient incentive for new electricity genera­ tion in the State. Maryland therefore enacted its own regulatory program. Maryland’s program provides subsi­ dies, through state-mandated contracts, to a new genera­ tor, but conditions receipt of those subsidies on the new 2 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court generator selling capacity into a FERC-regulated whole­ sale auction. In a suit initiated by competitors of Mary­ land’s new electricity generator, the Court of Appeals for the Fourth Circuit held that Maryland’s scheme imper­ missibly intrudes upon the wholesale electricity market, a domain Congress reserved to FERC alone. We affirm the Fourth Circuit’s judgment. I A Under the FPA, FERC has exclusive authority to regu­ late “the sale of electric energy at wholesale in interstate commerce.” A wholesale sale is defined as a “sale of electric energy to any person for resale.” The FPA assigns to FERC responsibility for ensuring that “[a]ll rates and charges made, demanded, or received by any public utility for or in connection with the transmis­ sion or sale of electric energy subject to the jurisdiction of the Commission shall be just and reasonable.” See also (if a rate or charge is found to be unjust or unreasonable, “the Commission shall deter­ mine the just and reasonable rate”). “But the law places beyond FERC’s power, and leaves to the States alone, the regulation of ‘any other sale’—most notably, any retail sale—of electricity.” FERC v. Electric Power Supply Assn., 577 U. S. (2016) (EPSA) (slip op., at 1) (“Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States.”). “Since the FPA’s passage, electricity has increasingly become a competitive interstate business, and FERC’s role Cite as: 578 U. S. (2016) 3 Opinion of the Court has evolved accordingly.” EPSA, 577 U. S., at (slip op., at 4). Until relatively recently, most state energy markets were vertically integrated monopolies—i.e., one entity, often a state utility, controlled electricity generation, transmission, and sale to retail consumers. Over the past few decades, many States, including Maryland, have deregulated their energy markets. In deregulated mar­ kets, the organizations that deliver electricity to retail consumers—often called “load serving entities” (LSEs)— purchase that electricity at wholesale from independent power generators. To ensure reliable transmission of electricity from independent generators to LSEs, FERC has charged nonprofit entities, called Regional Transmis­ sion Organizations (RTOs) and Independent System Op­ erators (ISOs), with managing certain segments of the electricity grid. Interstate wholesale transactions in deregulated mar­ kets typically occur through two mechanisms. The first is bilateral contracting: LSEs sign agreements with genera­ tors to purchase a certain amount of electricity at a certain rate over a certain period of time. After the parties have agreed to contract terms, FERC may review the rate for reasonableness. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 546–548 (Because rates set through good-faith arm’s-length negotiation are presumed reasonable, “FERC may abrogate a valid contract only if it harms the public interest.”). Second, RTOs and ISOs administer a number of competitive wholesale auctions: for example, a “same­ day auction” for immediate delivery of electricity to LSEs facing a sudden spike in demand; a “next-day auction” to satisfy LSEs’ anticipated near-term demand; and a “capac­ ity auction” to ensure the availability of an adequate supply of power at some point far in the future. These cases involve the capacity auction administered by PJM Interconnection (PJM), an RTO that oversees the 4 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court electricity grid in all or parts of 13 mid-Atlantic and Mid­ western States and the District of Columbia. The PJM capacity auction functions as follows. PJM predicts elec­ tricity demand three years ahead of time, and assigns a share of that demand to each participating LSE. Owners of capacity to produce electricity in three years’ time bid to sell that capacity to PJM at proposed rates. PJM accepts bids, beginning with the lowest proposed rate, until it has purchased enough capacity to satisfy projected demand. No matter what rate they listed in their original bids, all accepted capacity sellers receive the highest accepted rate, which is called the “clearing price.”1 LSEs then must purchase from PJM, at the clearing price, enough electric­ ity to satisfy their PJM-assigned share of overall projected demand. The capacity auction serves to identify need for new generation: A high clearing price in the capacity auction encourages new generators to enter the market, increasing supply and thereby lowering the clearing price in same-day and next-day auctions three years’ hence; a low clearing price discourages new entry and encourages retirement of existing high-cost generators.2 The auction is designed to accommodate long-term bilateral contracts for capacity. If an LSE has acquired a —————— 1 For example, if four power plants bid to sell capacity at, respectively, $10/unit, $20/unit, $30/unit, and $40/unit, and the first three plants provide enough capacity to satisfy projected demand, PJM will pur­ chase capacity only from those three plants, each of which will receive $30/unit, the clearing price. 2 Because PJM operates the electricity grid in a very large region of the country, PJM divides its overall grid into geographic subregions and makes adjustments to the clearing price to reflect operating condi­ tions in those subregions. For instance, PJM may pay a higher rate in or near areas where transmission-line congestion limits the amount of electricity that can be imported from other areas. The elevated clearing price might encourage a company to site a new power plant in a subre­ gion where the need for local generation is great rather than elsewhere in PJM’s grid. Cite as: 578 U. S. (2016) 5 Opinion of the Court certain amount of capacity through a long-term bilateral contract with a generator, the LSE—not the generator—is considered the owner of that capacity for purposes of the auction. The LSE sells that capacity into the auction, where it counts toward the LSE’s assigned share of PJM- projected demand, thereby reducing the net costs of the LSE’s required capacity purchases from PJM.3 LSEs generally bid their capacity into the auction at a price of $0, thus guaranteeing that the capacity will clear at any price. Such bidders are called “price takers.” Because the fixed costs of building generating facilities often vastly exceed the variable costs of producing electricity, many generators also function as price takers. FERC extensively regulates the structure of the PJM capacity auction to ensure that it efficiently balances supply and demand, producing a just and reasonable clearing price. See EPSA, 577 U. S., at (slip op., at 5) (the clearing price is “the price an efficient market would produce”). Two FERC rules are particularly relevant to —————— 3 To take a simplified example, assume an LSE has signed a long­ term bilateral contract with a generator to purchase 50 units of electric­ ity annually at a price of $40/unit (total annual cost: $2,000). In a given year when the auction clearing price is $50/unit, assume PJM requires the LSE to purchase 100 units of electricity to satisfy its share of projected demand. The LSE bids the 50 units of capacity it already owns into the PJM auction, and PJM pays the LSE $2,500 for those 50 units. Although the LSE then must pay PJM $5,000 for the 100 units it must purchase to satisfy projected demand, the net cost to the LSE of auction participation is only $2,500. Note that the effective price the LSE pays for 50 of the 100 units it must purchase from PJM—the amount purchased through the long-term contract—is the contract price, not the clearing price. That is, the LSE pays the utility $2,000 for 50 units of capacity, receives $2,500 from PJM after selling that capacity into the auction, and then pays $2,500 to PJM to purchase 50 units of capacity, resulting in a net cost of $2,000—the contract price— for those 50 units. The LSE, of course, must pay the full clearing price—$50/unit—for the other 50 units it is obliged to purchase to satisfy its full share of projected demand. 6 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court these cases. First, the Minimum Offer Price Rule (MOPR) requires new generators to bid capacity into the auction at or above a price specified by PJM, unless those generators can prove that their actual costs fall below the MOPR price. Once a new generator clears the auction at the MOPR price, PJM deems that generator an efficient en­ trant and exempts it from the MOPR going forward, allow­ ing it to bid its capacity into the auction at any price it elects, including $0. Second, the New Entry Price Ad­ justment (NEPA) guarantees new generators, under cer­ tain circumstances, a stable capacity price for their first three years in the market. The NEPA’s guarantee elimi­ nates, for three years, the risk that the new generator’s entry into the auction might so decrease the clearing price as to prevent that generator from recovering its costs. B Around Maryland electricity regulators became concerned that the PJM capacity auction was failing to encourage development of sufficient new in-state genera­ tion. Because Maryland sits in a particularly congested part of the PJM grid, importing electricity from other parts of the grid into the State is often difficult. To ad­ dress this perceived supply shortfall, Maryland regulators proposed that FERC extend the duration of the NEPA from three years to ten. FERC rejected the proposal. PJM, “[G]iving new suppliers longer payments and assurances unavailable to existing suppliers,” FERC reasoned, would improperly favor new generation over existing generation, throwing the auc­ tion’s market-based price-setting mechanism out of bal­ ance. See also PJM, (order on petition for rehearing) (“Both new entry and retention of existing efficient capacity are necessary to ensure reliability and both should receive the same price so that the price signals are not skewed in favor of new Cite as: 578 U. S. (2016) 7 Opinion of the Court entry.”). Shortly after FERC rejected Maryland’s NEPA proposal, the Maryland Public Service Commission promulgated the Generation Order at issue here. Under the order, Mary­ land solicited proposals from various companies for con­ struction of a new gas-fired power plant at a particular location, and accepted the proposal of petitioner CPV Maryland, LLC (CPV). Maryland then required LSEs to enter into a 20-year pricing contract (the parties refer to this contract as a “contract for differences”) with CPV at a rate CPV specified in its accepted proposal.4 Unlike a traditional bilateral contract for capacity, the contract for differences does not transfer ownership of capacity from CPV to the LSEs. Instead, CPV sells its capacity on the PJM market, but Maryland’s program guarantees CPV the contract price rather than the auction clearing price. If CPV’s capacity clears the PJM capacity auction and the clearing price falls below the price guaranteed in the contract for differences, Maryland LSEs pay CPV the difference between the contract price and the clearing price. The LSEs then pass the costs of these required payments along to Maryland consumers in the form of higher retail prices. If CPV’s capacity clears the auction and the clearing price exceeds the price guaranteed in the contract for differences, CPV pays the LSEs the difference between the contract price and the clearing price, and the LSEs then pass the savings along to consumers in the form of lower retail prices. Because CPV sells its capacity exclusively in the PJM auction market, CPV receives no payment from Maryland LSEs or PJM if its capacity fails to clear the auction. But CPV is guaranteed a certain rate if its capacity does clear, so the contract’s terms encourage —————— 4 New Jersey implemented a similar program around the same time. The duration of the price guarantee for the New Jersey program is 15 years rather than Maryland’s 20. 8 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court CPV to bid its capacity into the auction at the lowest possible price.5 Prior to enactment of the Maryland program, PJM had exempted new state-supported generation from the MOPR, allowing such generation to bid capacity into the —————— 5 Two simplified examples illustrate how Maryland’s program inter­ acts with the PJM capacity auction. First, consider a hypothetical situation where the clearing price falls below the price guaranteed in the contract for differences. Assume that CPV’s plant produces 10,000 units of electricity a year, and that the 20-year price guaranteed under the contract is $30/unit. Assume further that, in a given year during the duration of the price guarantee, the clearing price is $20/unit, and CPV’s capacity clears the auction. CPV receives payments from Mary­ land LSEs of $10/unit, or $100,000, and payments from PJM of $20/unit, or $200,000. The rate CPV receives from the capacity auction is therefore $30/unit—the contract price—not $20/unit—the clearing price. Under PJM auction rules, Maryland LSEs then must purchase from PJM, at the clearing price of $20/unit, enough capacity to satisfy their assigned shares of anticipated demand. Assume that PJM re­ quires Maryland LSEs to purchase 40,000 units of capacity. Total capacity-auction expenses for Maryland LSEs would therefore include both the payment to CPV ($100,000) and the full cost of purchasing capacity from PJM ($800,000), or $900,000. Absent Maryland’s pro­ gram, the LSEs’ capacity-auction expenses would have included only the total cost of capacity purchases from PJM, or $800,000. Now assume instead that the clearing price in a given year is $40/unit, which exceeds the $30/unit contract price, and that CPV’s capacity clears the auction. CPV receives payments from PJM of $40/unit, or $400,000. CPV then must pay Maryland LSEs the differ­ ence between the contract price and the clearing price—in this case, $10/unit, or $100,000. The rate CPV receives from the capacity auction is therefore the contract price—$30/unit—the same price CPV received in the above example. Maryland LSEs then must purchase from PJM, at the clearing price of $40/unit, enough capacity to satisfy their share of anticipated demand. Assume that PJM again requires Maryland LSEs to purchase 40,000 units of capacity. Total capacity-auction expenses for Maryland LSEs would therefore include the full cost of capacity purchases from PJM ($1,600,000), minus the payment from CPV ($100,000), or $1,500,000. Absent Maryland’s program, the LSEs would have had to pay $1,600,000 to PJM without receiving any offset­ ting payments from CPV. Cite as: 578 U. S. (2016) 9 Opinion of the Court auction at $0 without first clearing at the MOPR price. Responding to a complaint filed by incumbent generators in the Maryland region who objected to Maryland’s pro­ gram (and the similar New Jersey program), FERC elimi­ nated this exemption. PJM, See also (order on petition for rehearing) (“Our intent is not to pass judgment on state and local policies and objectives with regard to the devel­ opment of new capacity resources, or unreasonably inter­ fere with those objectives. We are forced to act, however, when subsidized entry supported by one state’s or locali­ ty’s policies has the effect of disrupting the competitive price signals that PJM’s [capacity auction] is designed to produce, and that PJM as a whole, including other states, rely on to attract sufficient capacity.”); New Jersey Bd. of Pub. (up­ holding FERC’s elimination of the state-supported genera­ tion exemption). In the first year CPV bid capacity from its new plant into the PJM capacity auction, that capacity cleared the auction at the MOPR rate, so CPV was there­ after eligible to function as a price taker. In addition to seeking the elimination of the state- supported generation exemption, incumbent generators— respondents here—brought suit in the District of Mary­ land against members of the Maryland Public Service Commission in their official capacities. The incumbent generators sought a declaratory judgment that Maryland’s program violates the Supremacy Clause by setting a wholesale rate for electricity and by interfering with FERC’s capacity-auction policies.6 CPV intervened as a —————— 6 Because neither CPV nor Maryland has challenged whether plain­ tiffs may seek declaratory relief under the Supremacy Clause, the Court assumes without deciding that they may. See Brief for Public Utility Law Project of New York, Inc., as Amicus Curiae 21 (arguing that the incumbent generators should have been required to exhaust administrative remedies before filing suit). 10 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court defendant. After a six-day bench trial, the District Court issued a declaratory judgment holding that Maryland’s program improperly sets the rate CPV receives for inter­ state wholesale capacity sales to PJM. PPL Energyplus, “While Maryland may retain traditional state authority to regulate the development, location, and type of power plants within its borders,” the District Court explained, “the scope of Maryland’s power is necessarily limited by FERC’s exclusive authority to set wholesale energy and capacity prices.”7 The Fourth Circuit affirmed. Relying on this Court’s decision in Mississippi Power & the Fourth Circuit observed that state laws are preempted when they “den[y] full effect to the rates set by FERC, even though [they do] not seek to tamper with the actual terms of an interstate transaction.” PPL EnergyPlus, 753 F.3d 467, 4 Maryland’s program, the Fourth Circuit reasoned, “functionally sets the rate that CPV receives for its sales in the PJM auction,” “a FERC- approved market mechanism.” at 4–477. “[B]y adopting terms and prices set by Maryland, not those sanctioned by FERC,” the Fourth Circuit concluded, Mary­ land’s program “strikes at the heart of the agency’s statu­ tory power.”8 The Fourth Circuit cautioned that it “need not express an opinion on other state efforts to encourage new generation, such as direct subsidies or —————— 7 Respondents also raised arguments under the Dormant Commerce Clause and 42 U.S. C. The District Court rejected those argu­ ments, PPL Energyplus, 841– 855 the Fourth Circuit did not address them, and they are irrelevant at this stage. 8 For the same reason, the Third Circuit found New Jersey’s similar program preempted. PPL Energyplus, 246 Cite as: 578 U. S. (2016) 11 Opinion of the Court tax rebates, that may or may not differ in important ways from the Maryland initiative.” The Fourth Circuit then held that Maryland’s program impermissibly conflicts with FERC policies. Maryland’s program, the Fourth Circuit determined, “has the poten­ tial to seriously distort the PJM auction’s price signals,” undermining the incentive structure FERC has approved for construction of new generation. Moreover, the Fourth Circuit explained, Maryland’s program “conflicts with NEPA” by providing a 20-year price guarantee to a new entrant—even though FERC refused Maryland’s request to extend the duration of the NEPA past three years. We granted certiorari, 577 U. S. (2015), and now affirm. II The Supremacy Clause makes the laws of the United States “the supreme Law of the Land; any Thing in the Constitution or Laws of any State to the Contrary not­ withstanding.” U. S. Const., Art. VI, cl. 2. Put simply, federal law preempts contrary state law. “Our inquiry into the scope of a [federal] statute’s pre-emptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case.” Altria Group, (internal quotation marks omitted). A state law is preempted where “Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,” Northwest Central Pipeline 509 (1989), as well as “where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” (brackets 12 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court and internal quotation marks omitted). We agree with the Fourth Circuit’s judgment that Mary­ land’s program sets an interstate wholesale rate, con­ travening the FPA’s division of authority between state and federal regulators. As earlier recounted, see at 2, the FPA allocates to FERC exclusive jurisdiction over “rates and charges received for or in connection with” interstate wholesale sales. Exercising this authority, FERC has approved the PJM capacity auction as the sole ratesetting mechanism for sales of capacity to PJM, and has deemed the clearing price per se just and reasonable. Doubting FERC’s judgment, Mary­ land—through the contract for differences—requires CPV to participate in the PJM capacity auction, but guarantees CPV a rate distinct from the clearing price for its inter­ state sales of capacity to PJM. By adjusting an interstate wholesale rate, Maryland’s program invades FERC’s regulatory turf. See EPSA, 577 U. S., at (slip op., at 26) (“The FPA leaves no room either for direct state regulation of the prices of interstate wholesales or for regulation that would indirectly achieve the same result.” (internal quotation marks omitted)).9 That Maryland was attempting to encourage construc­ tion of new in-state generation does not save its program. States, of course, may regulate within the domain Con­ gress assigned to them even when their laws incidentally —————— 9 According to Maryland and CPV, the payments guaranteed under Maryland’s program are consideration for CPV’s compliance with various state-imposed conditions, i.e., the requirements that CPV build a certain type of generator, at a particular location, that would produce a certain amount of electricity over a particular period of time. The payments, Maryland and CPV continue, are therefore separate from the rate CPV receives for its wholesale sales of capacity to PJM. But because the payments are conditioned on CPV’s capacity clearing the auction—and, accordingly, on CPV selling that capacity to PJM—the payments are certainly “received in connection with” interstate wholesale sales to PJM. 16 U.S. C. Cite as: 578 U. S. (2016) 13 Opinion of the Court affect areas within FERC’s domain. See Oneok, Inc. v. Learjet, Inc., 575 U. S. (2015) (slip op., at 11) (whether the Natural Gas Act (NGA) preempts a particu­ lar state law turns on “the target at which the state law aims”).10 But States may not seek to achieve ends, how­ ever legitimate, through regulatory means that intrude on FERC’s authority over interstate wholesale rates, as Maryland has done here. See (distinguishing be­ tween “measures aimed directly at interstate purchasers and wholesalers for resale, and those aimed at subjects left to the States to regulate” (internal quotation marks omitted)).11 The problem we have identified with Maryland’s pro­ gram mirrors the problems we identified in Mississippi Power & and Power & Co. v. Thornburg, 4 U.S. 953 In each of those cases, a State determined that FERC had failed to ensure the reasonableness of a wholesale rate, and the State there­ fore prevented a utility from recovering—through retail rates—the full cost of wholesale purchases. See Missis- sippi Power & –364; —————— 10 Although Oneok, Inc. v. Learjet, Inc., 575 U. S. (2015), involved the NGA rather than the FPA, the relevant provisions of the two statutes are analogous. This Court has routinely relied on NGA cases in determining the scope of the FPA, and vice versa. See, e.g., at 14–15 (discussing FPA cases while determining the preemptive scope of the NGA). 11 Maryland’s program, Maryland and CPV assert, is consistent with federal law because FERC has accommodated the program by eliminat­ ing the MOPR’s state-supported generation exception. Even assuming that this change has prevented Maryland’s program from distorting the auction’s price signals, however—a point the parties dispute— Maryland cannot regulate in a domain Congress assigned to FERC and then require FERC to accommodate Maryland’s intrusion. See North- west Central Pipeline 489 U.S. 493, 518 (1989) (“The NGA does not require FERC to regulate around a state rule the only purpose of which is to influence purchasing decisions of interstate pipelines, however that rule is labeled.”). 14 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of the Court 4 U.S., at 956–962. This Court invalidated the States’ attempts to second-guess the reasonableness of interstate wholesale rates. “ ‘Once FERC sets such a rate,’ ” we ob­ served in Mississippi Power & “ ‘a State may not conclude in setting retail rates that the FERC-approved wholesale rates are unreasonable. A State must rather give effect to Congress’ desire to give FERC plenary au­ thority over interstate wholesale rates, and to ensure that the States do not interfere with this authority.’ ” 487 U.S., at (quoting 4 U.S., at 966). True, Maryland’s program does not prevent a utility from recov­ ering through retail sales a cost FERC mandated it in- cur—Maryland instead guarantees CPV a certain rate for capacity sales to PJM regardless of the clearing price. But Mississippi Power & and make clear that States interfere with FERC’s authority by disregarding interstate wholesale rates FERC has deemed just and reasonable, even when States exercise their traditional authority over retail rates or, as here, in-state generation. The contract for differences, Maryland and CPV re­ spond, is indistinguishable from traditional bilateral contracts for capacity, which FERC has long accommo­ dated in the auction. See at 4–5, and n. 3. But the contract at issue here differs from traditional bilateral contracts in this significant respect: The contract for dif­ ferences does not transfer ownership of capacity from one party to another outside the auction. Instead, the contract for differences operates within the auction; it mandates that LSEs and CPV exchange money based on the cost of CPV’s capacity sales to PJM. Notably, because the con­ tract for differences does not contemplate the sale of ca­ pacity outside the auction, Maryland and CPV took the position, until the Fourth Circuit issued its decision, that the rate in the contract for differences is not subject to FERC’s reasonableness review. See (FERC has jurisdiction over contracts for “the sale of electric energy at Cite as: 578 U. S. (2016) 15 Opinion of the Court wholesale in interstate commerce.” (emphasis added)).12 Our holding is limited: We reject Maryland’s program only because it disregards an interstate wholesale rate required by FERC. We therefore need not and do not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Nothing in this opinion should be read to foreclose Maryland and other States from encouraging production of new or clean generation through measures “untethered to a generator’s wholesale market participation.” Brief for Respondents 40. So long as a State does not condition payment of funds on capacity clearing the auction, the State’s program would not suffer from the fatal defect that renders Mary­ land’s program unacceptable.13 * * * For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is Affirmed. —————— 12 Our opinion does not call into question whether generators and LSEs may enter into long-term financial hedging contracts based on the auction clearing price. Such contracts, also frequently termed contracts for differences, do not involve state action to the same degree as Mary­ land’s program, which compels private actors (LSEs) to enter into contracts for differences—like it or not—with a generator that must sell its capacity to PJM through the auction. 13 Because the reasons we have set out suffice to invalidate Mary­ land’s program, we do not resolve whether, as the incumbent genera­ tors also assert, Maryland’s program is preempted because it counter­ acts FERC’s refusal to extend the NEPA’s duration, or because it interferes with the capacity auction’s price signals. Cite as: 578 U. S. (2016) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES Nos. 14–614 and 14–623 W. KEVIN HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISSION, ET AL., PETITIONERS 14–614 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL. CPV MARYLAND, LLC, PETITIONER 14–623 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL.

Justice Sotomayor

concurring

Hughes v. Talen Energy Marketing, LLC

2016-04-19

https://www.courtlistener.com/opinion/3195550/hughes-v-talen-energy-marketing-llc/

https://www.courtlistener.com/api/rest/v3/clusters/3195550/

2015-042

I write separately to clarify my understanding of the pre-emption principles that should guide this Court’s analysis of the Federal Power Act and that underpin its conclusion in these cases. The process through which consumers obtain energy stretches across state and federal regulatory domains. The Federal Power Act authorizes the States to regulate energy production. 16 U.S. C. §824(b). It then instructs the Federal Government to step in and regulate wholesale purchases and energy transportation. §824(a). Finally, it allows the States to assume control over the ultimate sale of energy to consumers. §824(b). In short, the Federal Power Act, like all collaborative federalism stat- utes, envisions a federal-state relationship marked by interdependence. 2 HUGHES v. TALEN ENERGY MARKETING, LLC SOTOMAYOR, J., concurring Pre-emption inquiries related to such collaborative programs are particularly delicate. This Court has said that where “coordinate state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal pre- emption becomes a less persuasive one.” New York State Dept. of Social Servs. v. Dublino, 413 U.S. 405, 421 (1973). That is not to say that pre-emption has no role in such programs, but courts must be careful not to confuse the “congressionally designed interplay between state and federal regulation,” Northwest Central Pipeline Corp. v. State Corporation, Comm’n of Kan., 489 U.S. 493, 518 (1989), for impermissible tension that requires pre- emption under the Supremacy Clause. In this context, therefore, our general exhortation not to rely on a talismanic pre-emption vocabulary applies with special force. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (“This Court . . . has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick” (footnote omitted)). I understand today’s opinion to reflect these principles. Using the purpose of the Federal Power Act as the “ulti- mate touchstone” of its pre-emption inquiry, Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008), rather than resting on generic pre-emption frameworks unrelated to the Fed- eral Power Act, the Court holds that Maryland has im- permissibly impeded the performance of one of FERC’s core regulatory duties. Ensuring “just and reasonable” wholesale rates is a central purpose of the Act. See 16 §824d(a). Pursuant to its mandate to set such rates, FERC has approved the PJM Interconnection capacity auction as the proper mechanism to determine the “just and reasonable” rate for the sale of petitioner CPV Mary- Cite as: 578 U. S. ____ (2016) 3 SOTOMAYOR, J., concurring land, LLC’s energy at wholesale. Ante, at 12. Maryland, however, has acted to guarantee CPV a rate different from FERC’s “just and reasonable” rate and has thus contra- vened the goals of the Federal Power Act. Ibid. Such actions must be preempted. Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 374 (1988) (“States may not regulate in areas where FERC has properly exercised its jurisdiction to determine just and reasonable wholesale rates”). The Court, however, also rightly recognizes the importance of protecting the States’ ability to contribute, within their regulatory domain, to the Federal Power Act’s goal of ensuring a sustainable supply of efficient and price-effective energy. Ante, at 15. Endorsing those conclusions, I join the Court’s opinion in full. Cite as: 578 U. S. ____ (2016) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–614 and 14–623 _________________ W. KEVIN HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISSION, ET AL., PETITIONERS 14–614 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL. CPV MARYLAND, LLC, PETITIONER 14–623 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [April 19, 2016] JUSTICE THOMAS, concurring in part and concurring in the judgment. The Court concludes that Maryland’s regulatory pro- gram invades the Federal Energy Regulatory Commis- sion’s (FERC) exclusive jurisdiction over interstate whole- sale sales of electric energy. Ante, at 12. I agree that the statutory text and framework compel that conclusion, and that Maryland’s program therefore cannot stand. Because the statute provides a sufficient basis for resolving these cases, I would not also rest today’s holding on principles of implied pre-emption. See, e.g., ante, at 11–12. For that reason, I join the Court’s opinion only to the extent that it rests on the text and structure of the Federal Power Act (FPA), 41 Stat. 1063, as amended, 16 U.S. C. §791a et seq. The FPA divides federal and state jurisdiction over the regulation of electricity sales. As relevant here, the FPA 2 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of THOMAS, J. grants FERC the authority to regulate “the sale of electric energy at wholesale in interstate commerce.” §824(b)(1). That federal authority over interstate wholesale sales is exclusive. See, e.g., Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 966 (1986) (recognizing that Congress “vested” in FERC “exclusive jurisdiction” and “plenary authority over interstate wholesale rates”); Mis- sissippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 377 (1988) (Scalia, J., concurring in judgment) (“It is common ground that if FERC has jurisdiction over a subject, the States cannot have jurisdiction over the same subject”). To resolve these cases, it is enough to conclude that Maryland’s program invades FERC’s exclusive jurisdic- tion. Maryland has partially displaced the FERC- endorsed market mechanism for determining wholesale capacity rates. Under Maryland’s program, CPV Mary- land, LLC, is entitled to receive, for its wholesale sales into the capacity auction, something other than what FERC has decided that generators should receive. That is a regulation of wholesale sales: By “fiddling with the effective . . . price” that CPV receives for its wholesale sales, Maryland has “regulate[d]” wholesale sales “no less than does direct ratesetting.” FERC v. Electric Power Supply Assn., 577 U. S. ___, ___ (2016) (Scalia, J., dissent- ing) (slip op., at 6) (emphasis deleted) (addressing analo- gous situation involving retail sales). Maryland’s program therefore intrudes on the exclusive federal jurisdiction over wholesale electricity rates. Although the Court applies the FPA’s framework in reaching that conclusion, see ante, at 12, it also relies on principles of implied pre-emption, see, e.g., ante, at 11–12. Because we can resolve these cases based on the statute alone, I would affirm based solely on the FPA. Accord- ingly, I concur in the judgment and I join the Court’s opinion to the extent that it holds that Maryland’s pro- gram invades FERC’s exclusive jurisdiction

I write separately to clarify my understanding of the pre-emption principles that should guide this Court’s analysis of the Federal Power Act and that underpin its conclusion in these cases. The process through which consumers obtain energy stretches across state and federal regulatory domains. The Federal Power Act authorizes the States to regulate energy production. 16 U.S. C. It then instructs the Federal Government to step in and regulate wholesale purchases and energy transportation. Finally, it allows the States to assume control over the ultimate sale of energy to consumers. In short, the Federal Power Act, like all collaborative federalism stat- utes, envisions a federal-state relationship marked by interdependence. 2 HUGHES v. TALEN ENERGY MARKETING, LLC SOTOMAYOR, J., concurring Pre-emption inquiries related to such collaborative programs are particularly delicate. This Court has said that where “coordinate state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal pre- emption becomes a less persuasive one.” New York State Dept. of Social (1973). That is not to say that pre-emption has no role in such programs, but courts must be careful not to confuse the “congressionally designed interplay between state and federal regulation,” Northwest Central Pipeline Corp. v. State Corporation, Comm’n of Kan., (1989), for impermissible tension that requires pre- emption under the Supremacy Clause. In this context, therefore, our general exhortation not to rely on a talismanic pre-emption vocabulary applies with special force. See (1941) (“This Court has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick” (footnote omitted)). I understand today’s opinion to reflect these principles. Using the purpose of the Federal Power Act as the “ulti- mate touchstone” of its pre-emption inquiry, Altria Group, rather than resting on generic pre-emption frameworks unrelated to the Fed- eral Power Act, the Court holds that Maryland has im- permissibly impeded the performance of one of FERC’s core regulatory duties. Ensuring “just and reasonable” wholesale rates is a central purpose of the Act. See 16 Pursuant to its mandate to set such rates, FERC has approved the PJM Interconnection capacity auction as the proper mechanism to determine the “just and reasonable” rate for the sale of petitioner CPV Mary- Cite as: 578 U. S. (2016) 3 SOTOMAYOR, J., concurring land, LLC’s energy at wholesale. Ante, at 12. Maryland, however, has acted to guarantee CPV a rate different from FERC’s “just and reasonable” rate and has thus contra- vened the goals of the Federal Power Act. Such actions must be preempted. Mississippi Power & Light Co. v. Mississippi ex rel. Moore, (“States may not regulate in areas where FERC has properly exercised its jurisdiction to determine just and reasonable wholesale rates”). The Court, however, also rightly recognizes the importance of protecting the States’ ability to contribute, within their regulatory domain, to the Federal Power Act’s goal of ensuring a sustainable supply of efficient and price-effective energy. Ante, at 15. Endorsing those conclusions, I join the Court’s opinion in full. Cite as: 578 U. S. (2016) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES Nos. 14–614 and 14–623 W. KEVIN HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISSION, ET AL., PETITIONERS 14–614 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL. CPV MARYLAND, LLC, PETITIONER 14–623 v. TALEN ENERGY MARKETING, LLC, FKA PPL ENERGYPLUS, LLC, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [April 19, 2016] JUSTICE THOMAS, concurring in part and concurring in the judgment. The Court concludes that Maryland’s regulatory pro- gram invades the Federal Energy Regulatory Commis- sion’s (FERC) exclusive jurisdiction over interstate whole- sale sales of electric energy. Ante, at 12. I agree that the statutory text and framework compel that conclusion, and that Maryland’s program therefore cannot stand. Because the statute provides a sufficient basis for resolving these cases, I would not also rest today’s holding on principles of implied pre-emption. See, e.g., ante, at 11–12. For that reason, I join the Court’s opinion only to the extent that it rests on the text and structure of the Federal Power Act (FPA), as amended, 16 U.S. C. et seq. The FPA divides federal and state jurisdiction over the regulation of electricity sales. As relevant here, the FPA 2 HUGHES v. TALEN ENERGY MARKETING, LLC Opinion of THOMAS, J. grants FERC the authority to regulate “the sale of electric energy at wholesale in interstate commerce.” That federal authority over interstate wholesale sales is exclusive. See, e.g., Nantahala Power & Light Co. v. Thornburg, 4 U.S. 953, (recognizing that Congress “vested” in FERC “exclusive jurisdiction” and “plenary authority over interstate wholesale rates”); Mis- sissippi Power & Light 487 U.S. 354, 377 (Scalia, J., concurring in judgment) (“It is common ground that if FERC has jurisdiction over a subject, the States cannot have jurisdiction over the same subject”). To resolve these cases, it is enough to conclude that Maryland’s program invades FERC’s exclusive jurisdic- tion. Maryland has partially displaced the FERC- endorsed market mechanism for determining wholesale capacity rates. Under Maryland’s program, CPV Mary- land, LLC, is entitled to receive, for its wholesale sales into the capacity auction, something other than what FERC has decided that generators should receive. That is a regulation of wholesale sales: By “fiddling with the effective price” that CPV receives for its wholesale sales, Maryland has “regulate[d]” wholesale sales “no less than does direct ratesetting.” FERC v. Electric Power Supply Assn., 577 U. S. (2016) (Scalia, J., dissent- ing) (slip op., at 6) (emphasis deleted) (addressing analo- gous situation involving retail sales). Maryland’s program therefore intrudes on the exclusive federal jurisdiction over wholesale electricity rates. Although the Court applies the FPA’s framework in reaching that conclusion, see ante, at 12, it also relies on principles of implied pre-emption, see, e.g., ante, at 11–12. Because we can resolve these cases based on the statute alone, I would affirm based solely on the FPA. Accord- ingly, I concur in the judgment and I join the Court’s opinion to the extent that it holds that Maryland’s pro- gram invades FERC’s exclusive jurisdiction

Justice Breyer

majority

Small v. United States

2005-04-26

https://www.courtlistener.com/opinion/142890/small-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/142890/

2004-042

The United States Criminal Code makes it "unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm." 18 U.S.C. § 922(g)(1) (emphasis added). The question before us focuses upon the words "convicted in any court." Does this phrase apply only to convictions entered in any domestic court or to foreign convictions as well? We hold that the phrase encompasses only domestic, not foreign, convictions. I In 1994 petitioner, Gary Small, was convicted in a Japanese court of having tried to smuggle several pistols, a rifle, and ammunition into Japan. Small was sentenced to five years' imprisonment. 183 F. Supp. 2d 755, 757, n. 3 (WD Pa. 2002). After his release, Small returned to the United States, where he bought a gun from a Pennsylvania gun dealer. Federal authorities subsequently charged Small under the "unlawful gun possession" statute here at issue. 333 F.3d 425, 426 (CA3 2003). Small pleaded guilty while reserving the right to challenge his conviction on the ground that his earlier conviction, being a foreign conviction, fell outside the scope of the illegal gun possession statute. The Federal District Court rejected Small's argument, as did the Court of Appeals for the Third Circuit. 183 F. Supp. 2d, at 759; 333 F.3d, at 427, n. 2. Because the Circuits disagree about the matter, we granted certiorari. Compare United States v. Atkins, 872 F.2d 94, 96 (CA4 1989) ("convicted in any court" includes foreign convictions); United States v. Winson, 793 F.2d 754, 757-759 (CA6 1986) (same), with United States v. Gayle, 342 F.3d 89, 95 (CA2 2003) ("convicted in any court" does not include foreign convictions); United States v. Concha, 233 F.3d 1249, 1256 (CA10 2000) (same). *388 II A The question before us is whether the statutory reference "convicted in any court" includes a conviction entered in a foreign court. The word "any" considered alone cannot answer this question. In ordinary life, a speaker who says, "I'll see any film," may or may not mean to include films shown in another city. In law, a legislature that uses the statutory phrase "`any person'" may or may not mean to include "`persons'" outside "the jurisdiction of the state." See, e.g., United States v. Palmer, 3 Wheat. 610, 631 (1818) (Marshall, C. J.) ("[G]eneral words," such as the word "`any,'" must "be limited" in their application "to those objects to which the legislature intended to apply them"); Nixon v. Missouri Municipal League, 541 U.S. 125, 132 (2004) ("`any'" means "different things depending upon the setting"); United States v. Alvarez-Sanchez, 511 U.S. 350, 357 (1994) ("[R]espondent errs in placing dispositive weight on the broad statutory reference to `any' law enforcement officer or agency without considering the rest of the statute"); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 15-16 (1981) (it is doubtful that the phrase "`any statute'" includes the very statute in which the words appear); Flora v. United States, 362 U.S. 145, 149 (1960) ("`[A]ny sum,'" while a "catchall" phrase, does not "define what it catches"). Thus, even though the word "any" demands a broad interpretation, see, e.g., United States v. Gonzales, 520 U.S. 1, 5 (1997), we must look beyond that word itself. In determining the scope of the statutory phrase we find help in the "commonsense notion that Congress generally legislates with domestic concerns in mind." Smith v. United States, 507 U.S. 197, 204, n. 5 (1993). This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, *389 application. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949); see also Palmer, supra, at 631 ("The words `any person or persons,' are broad enough to comprehend every human being" but are "limited to cases within the jurisdiction of the state"); EEOC v. Arabian American Oil Co., 499 U.S. 244, 249-251 (1991). That presumption would apply, for example, were we to consider whether this statute prohibits unlawful gun possession abroad as well as domestically. And, although the presumption against extraterritorial application does not apply directly to this case, we believe a similar assumption is appropriate when we consider the scope of the phrase "convicted in any court" here. For one thing, the phrase describes one necessary portion of the "gun possession" activity that is prohibited as a matter of domestic law. For another, considered as a group, foreign convictions differ from domestic convictions in important ways. Past foreign convictions for crimes punishable by more than one year's imprisonment may include a conviction for conduct that domestic laws would permit, for example, for engaging in economic conduct that our society might encourage. See, e.g., Art. 153 of the Criminal Code of the Russian Soviet Federated Socialist Republic, in Soviet Criminal Law and Procedure 171 (H. Berman & J. Spindler transls. 2d ed. 1972) (criminalizing "Private Entrepreneurial Activity"); Art. 153, id., at 172 (criminalizing "Speculation," which is defined as "the buying up and reselling of goods or any other articles for the purpose of making a profit"); cf., e.g., Gaceta Oficial de la Republica de Cuba, ch. II, Art. 103, p. 68 (Dec. 30, 1987) (forbidding propaganda that incites against the social order, international solidarity, or the Communist state). They would include a conviction from a legal system that is inconsistent with an American understanding of fairness. See, e.g., U.S. Dept. of State, Country Reports on Human Rights Practices for 2003, Submitted to the House Committee on International Relations and the Senate Committee on Foreign Relations, 108th Cong., 2d Sess., 702-705, *390 1853, 2023 (Joint Comm. Print 2004) (describing failures of "due process" and citing examples in which "the testimony of one man equals that of two women"). And they would include a conviction for conduct that domestic law punishes far less severely. See, e.g., Singapore Vandalism Act, ch. 108, §§ 2, 3, III Statutes of Republic of Singapore, pp. 257-258 (imprisonment for up to three years for an act of vandalism). Thus, the key statutory phrase "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where foreign convictions, rather than domestic convictions, are at issue. In addition, it is difficult to read the statute as asking judges or prosecutors to refine its definitional distinctions where foreign convictions are at issue. To somehow weed out inappropriate foreign convictions that meet the statutory definition is not consistent with the statute's language; it is not easy for those not versed in foreign laws to accomplish; and it would leave those previously convicted in a foreign court (say, of economic crimes) uncertain about their legal obligations. Cf. 1 United States Sentencing Commission, Guidelines Manual § 4A1.2(h) (Nov. 2004) ("[S]entences resulting from foreign convictions are not counted" as a "prior sentence" for criminal history purposes). These considerations, suggesting significant differences between foreign and domestic convictions, do not dictate our ultimate conclusion. Nor do they create a "clear statement" rule, imposing upon Congress a special burden of specificity. See post, at 399 (THOMAS, J., dissenting). They simply convince us that we should apply an ordinary assumption about the reach of domestically oriented statutes here — an assumption that helps us determine Congress' intent where Congress likely did not consider the matter and where other indicia of intent are in approximate balance. Cf. ibid. We consequently assume a congressional intent that the phrase *391 "convicted in any court" applies domestically, not extraterritorially. But, at the same time, we stand ready to revise this assumption should statutory language, context, history, or purpose show the contrary. B We have found no convincing indication to the contrary here. The statute's language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute's language creates anomalies. For example, the statute creates an exception that allows gun possession despite a prior conviction for an antitrust or business regulatory crime. 18 U.S.C. § 921(a)(20)(A). In doing so, the exception speaks of "Federal or State" antitrust or regulatory offenses. Ibid. If the phrase "convicted in any court" generally refers only to domestic convictions, this language causes no problem. But if "convicted in any court" includes foreign convictions, the words "Federal or State" prevent the exception from applying where a foreign antitrust or regulatory conviction is at issue. An individual convicted of, say, a Canadian antitrust offense could not lawfully possess a gun, Combines Investigation Act, 2 R. S. C. 1985, ch. C-34, §§ 61(6), (9) (1985), but a similar individual convicted of, say, a New York antitrust offense, could lawfully possess a gun. For example, the statute specifies that predicate crimes include "a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). Again, the language specifies that these predicate crimes include only crimes that are "misdemeanor[s] under Federal or State law." § 921(a)(33)(A). If "convicted in any court" refers only to domestic convictions, this language creates no problem. If the phrase also refers to *392 foreign convictions, the language creates an apparently senseless distinction between (covered) domestic relations misdemeanors committed within the United States and (uncovered) domestic relations misdemeanors committed abroad. For example, the statute provides an enhanced penalty where unlawful gun possession rests upon three predicate convictions for a "serious drug offense." § 924(e)(1) (2000 ed., Supp. II). Again the statute defines the relevant drug crimes through reference to specific federal crimes and with the words "offense under State law." §§ 924(e)(2)(A)(i), (ii) (2000 ed.). If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates an apparently senseless distinction between drug offenses committed within the United States (potentially producing enhanced punishments) and similar offenses committed abroad (not producing enhanced punishments). For example, the statute provides that offenses that are punishable by a term of imprisonment of up to two years, and characterized under state law as misdemeanors, are not predicate crimes. § 921(20). This exception is presumably based on the determination that such state crimes are not sufficiently serious or dangerous so as to preclude an individual from possessing a firearm. If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates another apparently senseless distinction between less serious crimes (misdemeanors punishable by more than one year's imprisonment) committed within the United States (not predicate crimes) and similar offenses committed abroad (predicate crimes). These illustrative examples taken together suggest that Congress did not consider whether the generic phrase "convicted in any court" applies to domestic as well as foreign convictions. *393 The statute's lengthy legislative history confirms the fact that Congress did not consider whether foreign convictions should or should not serve as a predicate to liability under the provision here at issue. Congress did consider a Senate bill containing language that would have restricted predicate offenses to domestic offenses. See S. Rep. No. 1501, 90th Cong., 2d Sess., 31 (1968) (defining predicate crimes in terms of "Federal" crimes "punishable by a term of imprisonment exceeding one year" and crimes "determined by the laws of the State to be a felony"). And the Conference Committee ultimately rejected this version in favor of language that speaks of those "convicted in any court of, a crime punishable by a term of imprisonment exceeding one year," § 928(g)(1). See H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 28-29 (1968). But the history does not suggest that this language change reflected a congressional view on the matter before us. Rather, the enacted version is simpler and it avoids potential difficulties arising out of the fact that States may define the term "felony" differently. And as far as the legislative history is concerned, these latter virtues of the new language fully explain the change. Thus, those who use legislative history to help discern congressional intent will see the history here as silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did not consider the issue. Others will not be tempted to use or to discuss the history at all. But cf. post, at 406 (THOMAS, J., dissenting). The statute's purpose does offer some support for a reading of the phrase that includes foreign convictions. As the Government points out, Congress sought to "`keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.'" Brief for United States 16 (quoting Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 (1983)); see also Lewis v. United States, 445 U.S. 55, 60-62, 66 (1980); Huddleston v. United States, 415 U.S. 814, 824 *394 (1974). And, as the dissent properly notes, post, at 402-403, one convicted of a serious crime abroad may well be as dangerous as one convicted of a similar crime in the United States. The force of this argument is weakened significantly, however, by the empirical fact that, according to the Government, since 1968, there have probably been no more than "10 to a dozen" instances in which such a foreign conviction has served as a predicate for a felon-in-possession prosecution. Tr. of Oral Arg. 32. This empirical fact reinforces the likelihood that Congress, at best, paid no attention to the matter. C In sum, we have no reason to believe that Congress considered the added enforcement advantages flowing from inclusion of foreign crimes, weighing them against, say, the potential unfairness of preventing those with inapt foreign convictions from possessing guns. See supra, at 389. The statute itself and its history offer only congressional silence. Given the reasons for disfavoring an inference of extraterritorial coverage from a statute's total silence and our initial assumption against such coverage, see supra, at 390-391, we conclude that the phrase "convicted in any court" refers only to domestic courts, not to foreign courts. Congress, of course, remains free to change this conclusion through statutory amendment. For these reasons, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case.

The United States Criminal Code makes it "unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year to possess any firearm." (g)(1) The question before us focuses upon the words "convicted in any court." Does this phrase apply only to convictions entered in any domestic court or to foreign convictions as well? We hold that the phrase encompasses only domestic, not foreign, convictions. I In 1994 petitioner, Gary Small, was convicted in a Japanese court of having tried to smuggle several pistols, a rifle, and ammunition into Japan. Small was sentenced to five years' imprisonment. After his release, Small returned to the United States, where he bought a gun from a Pennsylvania gun dealer. Federal authorities subsequently charged Small under the "unlawful gun possession" statute here at issue. Small pleaded guilty while reserving the right to challenge his conviction on the ground that his earlier conviction, being a foreign conviction, fell outside the scope of the illegal gun possession statute. The Federal District Court rejected Small's argument, as did the Court of Appeals for the Third ; n. 2. Because the Circuits disagree about the matter, we granted certiorari. Compare United ; United with United ; United *388 II A The question before us is whether the statutory reference "convicted in any court" includes a conviction entered in a foreign court. The word "any" considered alone cannot answer this question. In ordinary life, a speaker who says, "I'll see any film," may or may not mean to include films shown in another city. In law, a legislature that uses the statutory phrase "`any person'" may or may not mean to include "`persons'" outside "the jurisdiction of the state." See, e.g., United ("[G]eneral words," such as the word "`any,'" must "be limited" in their application "to those objects to which the legislature intended to apply them"); ; United ; Middlesex County Sewerage ; (10) Thus, even though the word "any" demands a broad interpretation, see, e.g., United we must look beyond that word itself. In determining the scope of the statutory phrase we find help in the "commonsense notion that Congress generally legislates with domestic concerns in mind." 07 U.S. 197, 204, n. This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, *389 application. See Foley Bros., 28 ; see also at ; 249-21 That presumption would apply, for example, were we to consider whether this statute prohibits unlawful gun possession abroad as well as domestically. And, although the presumption against extraterritorial application does not apply directly to this case, we believe a similar assumption is appropriate when we consider the scope of the phrase "convicted in any court" here. For one thing, the phrase describes one necessary portion of the "gun possession" activity that is prohibited as a matter of domestic law. For another, considered as a group, foreign convictions differ from domestic convictions in important ways. Past foreign convictions for crimes punishable by more than one year's imprisonment may include a conviction for conduct that domestic laws would permit, for example, for engaging in economic conduct that our society might encourage. See, e.g., Art. 13 of the Criminal Code of the Russian Soviet Federated Socialist Republic, in Soviet Criminal Law and Procedure 171 (H. Berman & J. Spindler transls. 2d ed. 1972) (criminalizing "Private Entrepreneurial Activity"); Art. 13, ; cf., e.g., Gaceta Oficial de la Republica de Cuba, ch. II, Art. 103, p. 68 (Dec. 30, 1987) (forbidding propaganda that incites against the social order, international solidarity, or the Communist state). They would include a conviction from a legal system that is inconsistent with an American understanding of fairness. See, e.g., U.S. Dept. of State, Country Reports on Human Rights Practices for Submitted to the House Committee on International Relations and the Senate Committee on Foreign Relations, 108th Cong., 2d Sess., 702-70, *390 183, 2023 (describing failures of "due process" and citing examples in which "the testimony of one man equals that of two women"). And they would include a conviction for conduct that domestic law punishes far less severely. See, e.g., Singapore Vandalism Act, ch. 108, 2, 3, III Statutes of Republic of Singapore, pp. 27-28 (imprisonment for up to three years for an act of vandalism). Thus, the key statutory phrase "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where foreign convictions, rather than domestic convictions, are at issue. In addition, it is difficult to read the statute as asking judges or prosecutors to refine its definitional distinctions where foreign convictions are at issue. To somehow weed out inappropriate foreign convictions that meet the statutory definition is not consistent with the statute's language; it is not easy for those not versed in foreign laws to accomplish; and it would leave those previously convicted in a foreign court (say, of economic crimes) uncertain about their legal obligations. Cf. 1 United States Sentencing Commission, Guidelines Manual 4A1.2(h) ("[S]entences resulting from foreign convictions are not counted" as a "prior sentence" for criminal history purposes). These considerations, suggesting significant differences between foreign and domestic convictions, do not dictate our ultimate conclusion. Nor do they create a "clear statement" rule, imposing upon Congress a special burden of specificity. See post, at 399 (THOMAS, J., dissenting). They simply convince us that we should apply an ordinary assumption about the reach of domestically oriented statutes here — an assumption that helps us determine Congress' intent where Congress likely did not consider the matter and where other indicia of intent are in approximate balance. Cf. We consequently assume a congressional intent that the phrase *391 "convicted in any court" applies domestically, not extraterritorially. But, at the same time, we stand ready to revise this assumption should statutory language, context, history, or purpose show the contrary. B We have found no convincing indication to the contrary here. The statute's language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute's language creates anomalies. For example, the statute creates an exception that allows gun possession despite a prior conviction for an antitrust or business regulatory crime. 18 U.S.C. 921(a)(20)(A). In doing so, the exception speaks of "Federal or State" antitrust or regulatory offenses. If the phrase "convicted in any court" generally refers only to domestic convictions, this language causes no problem. But if "convicted in any court" includes foreign convictions, the words "Federal or State" prevent the exception from applying where a foreign antitrust or regulatory conviction is at issue. An individual convicted of, say, a Canadian antitrust offense could not lawfully possess a gun, Combines Investigation Act, 2 R. S. C. 198, ch. C-34, 61(6), (9) (198), but a similar individual convicted of, say, a New York antitrust offense, could lawfully possess a gun. For example, the statute specifies that predicate crimes include "a misdemeanor crime of domestic violence." (g)(9). Again, the language specifies that these predicate crimes include only crimes that are "misdemeanor[s] under Federal or State law." 921(a)(33)(A). If "convicted in any court" refers only to domestic convictions, this language creates no problem. If the phrase also refers to *392 foreign convictions, the language creates an apparently senseless distinction between (covered) domestic relations misdemeanors committed within the United States and (uncovered) domestic relations misdemeanors committed abroad. For example, the statute provides an enhanced penalty where unlawful gun possession rests upon three predicate convictions for a "serious drug offense." 924(e)(1) ( ed., Supp. II). Again the statute defines the relevant drug crimes through reference to specific federal crimes and with the words "offense under State law." 924(e)(2)(A)(i), (ii) ( ed.). If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates an apparently senseless distinction between drug offenses committed within the United States (potentially producing enhanced punishments) and similar offenses committed abroad (not producing enhanced punishments). For example, the statute provides that offenses that are punishable by a term of imprisonment of up to two years, and characterized under state law as misdemeanors, are not predicate crimes. 921(20). This exception is presumably based on the determination that such state crimes are not sufficiently serious or dangerous so as to preclude an individual from possessing a firearm. If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates another apparently senseless distinction between less serious crimes (misdemeanors punishable by more than one year's imprisonment) committed within the United States (not predicate crimes) and similar offenses committed abroad (predicate crimes). These illustrative examples taken together suggest that Congress did not consider whether the generic phrase "convicted in any court" applies to domestic as well as foreign convictions. *393 The statute's lengthy legislative history confirms the fact that Congress did not consider whether foreign convictions should or should not serve as a predicate to liability under the provision here at issue. Congress did consider a Senate bill containing language that would have restricted predicate offenses to domestic offenses. See S. Rep. No. 101, 90th Cong., 2d Sess., 31 (18) (defining predicate crimes in terms of "Federal" crimes "punishable by a term of imprisonment exceeding one year" and crimes "determined by the laws of the State to be a felony"). And the Conference Committee ultimately rejected this version in favor of language that speaks of those "convicted in any court of, a crime punishable by a term of imprisonment exceeding one year," 928(g)(1). See H.R. Conf. Rep. No. 16, 90th Cong., 2d Sess., 28-29 (18). But the history does not suggest that this language change reflected a congressional view on the matter before us. Rather, the enacted version is simpler and it avoids potential difficulties arising out of the fact that States may define the term "felony" differently. And as far as the legislative history is concerned, these latter virtues of the new language fully explain the change. Thus, those who use legislative history to help discern congressional intent will see the history here as silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did not consider the issue. Others will not be tempted to use or to discuss the history at all. But cf. post, at 406 (THOMAS, J., dissenting). The statute's purpose does offer some support for a reading of the phrase that includes foreign convictions. As the Government points out, Congress sought to "`keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.'" Brief for United States 16 ); see also 44 U.S. ; 41 U.S. 814, And, as the dissent properly notes, post, at 402-403, one convicted of a serious crime abroad may well be as dangerous as one convicted of a similar crime in the United States. The force of this argument is weakened significantly, however, by the empirical fact that, according to the Government, since 18, there have probably been no more than "10 to a dozen" instances in which such a foreign conviction has served as a predicate for a felon-in-possession prosecution. Tr. of Oral Arg. 32. This empirical fact reinforces the likelihood that Congress, at best, paid no attention to the matter. C In sum, we have no reason to believe that Congress considered the added enforcement advantages flowing from inclusion of foreign crimes, weighing them against, say, the potential unfairness of preventing those with inapt foreign convictions from possessing guns. See The statute itself and its history offer only congressional silence. Given the reasons for disfavoring an inference of extraterritorial coverage from a statute's total silence and our initial assumption against such coverage, see we conclude that the phrase "convicted in any court" refers only to domestic courts, not to foreign courts. Congress, of course, remains free to change this conclusion through statutory amendment. For these reasons, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case.

Justice Thomas

dissenting

Small v. United States

2005-04-26

https://www.courtlistener.com/opinion/142890/small-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/142890/

2004-042

Gary Small, having recently emerged from three years in Japanese prison for illegally importing weapons into that *395 country, bought a gun in the United States. This violated 18 U.S.C. § 922(g)(1), which makes it unlawful for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess a firearm in or affecting commerce. Yet the majority decides that Small's gun possession did not violate the statute, because his prior convictions occurred in a Japanese court rather than an American court. In concluding that "any" means not what it says, but rather "a subset of any," the Court distorts the plain meaning of the statute and departs from established principles of statutory construction. I respectfully dissent. I In December 1992, Small shipped a 19-gallon electric water heater from the United States to Okinawa, Japan, ostensibly as a present for someone in Okinawa. App. to Brief for Appellant in No. 02-2785 (CA3), pp. 507a-510a, 530a-531a, 534a, 598a (hereinafter Appellant's App.). Small had sent two other water heaters to Japan that same year. Id., at 523a-527a. Thinking it unusual for a person to ship a water tank from overseas as a present, id., at 599a, Japanese customs officials searched the heater and discovered 2 rifles, 8 semiautomatic pistols, and 410 rounds of ammunition, id., at 603a-604a; id., at 262a, 267a, 277a. The Japanese Government indicted Small on multiple counts of violating Japan's weapons-control and customs laws. Id., at 261a-262a. Each offense was punishable by imprisonment for a term exceeding one year. 333 F.3d 425, 426 (CA3 2003). Small was tried before a three-judge court in Naha, Japan, Appellant's App. 554a, convicted on all counts on April 14, 1994, 333 F.3d, at 426, and sentenced to 5 years' imprisonment with credit for 320 days served, id., at 426, n. 1; Government's Brief in Support of Detention in Crim. No. 00-160 (WD Pa.), pp. 3-4. He was paroled on November 22, 1996, and his parole terminated on May 26, 1998. 333 F.3d, at 426, n. 1. *396 A week after completing parole for his Japanese convictions, on June 2, 1998, Small purchased a 9-millimeter SWD Cobray pistol from a firearms dealer in Pennsylvania. Appellant's App. 48a, 98a. Some time later, a search of his residence, business premises, and automobile revealed a .380-caliber Browning pistol and more than 300 rounds of ammunition. Id., at 47a-51a, 98a-99a. This prosecution ensued. II The plain terms of § 922(g)(1) prohibit Small — a person "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" — from possessing a firearm in the United States. "Read naturally, the word `any' has an expansive meaning, that is, `one or some indiscriminately of whatever kind.'" United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster's Third New International Dictionary 97 (1976) (hereinafter Webster's 3d)); see also Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 130-131 (2002) (statute making "any" drug-related criminal activity cause for termination of public housing lease precludes requirement that tenant know of the activity); Brogan v. United States, 522 U.S. 398, 400-401 (1998) (statute criminalizing "any" false statement within the jurisdiction of a federal agency allows no exception for the mere denial of wrongdoing); United States v. Alvarez-Sanchez, 511 U.S. 350, 356, 358 (1994) (statute referring to "any" law enforcement officer includes all law enforcement officers — federal, state, or local — capable of arresting for a federal crime). No exceptions appear on the face of the statute; "[n]o modifier is present, and nothing suggests any restriction," Lewis v. United States, 445 U.S. 55, 60 (1980), on the scope of the term "court." See Gonzales, supra, at 5 (statute referring to "`any other term of imprisonment'" includes no "language limiting the breadth of that word, and so we must read [the statute] as referring to all `term[s] of *397 imprisonment'"). The broad phrase "any court" unambiguously includes all judicial bodies[1] with jurisdiction to impose the requisite conviction — a conviction for a crime punishable by imprisonment for a term of more than a year. Indisputably, Small was convicted in a Japanese court of crimes punishable by a prison term exceeding one year. The clear terms of the statute prohibit him from possessing a gun in the United States. Of course, the phrase "any court," like all other statutory language, must be read in context. E.g., Deal v. United States, 508 U.S. 129, 132 (1993). The context of § 922(g)(1), however, suggests that there is no geographic limit on the scope of "any court."[2] By contrast to other parts of the firearms-control law that expressly mention only state or federal law, "any court" is not qualified by jurisdiction. See 18 U.S.C. § 921(a)(20) (excluding certain "Federal or State offenses" from the definition of "crime punishable by imprisonment for a term exceeding one year"); § 921(a)(33)(A)(i) (defining a "misdemeanor crime of domestic violence" by *398 reference to "Federal or State law").[3] Congress' explicit use of "Federal" and "State" in other provisions shows that it specifies such restrictions when it wants to do so. Counting foreign convictions, moreover, implicates no special federalism concerns or other clear statement rules that have justified construing "any" narrowly in the past.[4] And it is eminently practical to put foreign convictions to the same use as domestic ones; foreign convictions indicate dangerousness just as reliably as domestic convictions. See Part III-B, infra. The expansive phrase "convicted in any court" straightforwardly encompasses Small's Japanese convictions. III Faced with the inescapably broad text, the Court narrows the statute by assuming that the text applies only to domestic convictions, ante, at 388-389; criticizing the accuracy of foreign convictions as a proxy for dangerousness, ante, at 389-390; finding that the broad, natural reading of the statute "creates anomalies," ante, at 391; and suggesting that Congress did not consider whether foreign convictions counted, ante, at 393. None of these arguments is persuasive. *399 A The Court first invents a canon of statutory interpretation — what it terms "an ordinary assumption about the reach of domestically oriented statutes," ante, at 390 — to cabin the statute's reach. This new "assumption" imposes a clear statement rule on Congress: Absent a clear statement, a statute refers to nothing outside the United States. The Court's denial that it has created a clear statement rule is implausible. Ibid. After today's ruling, the only way for Congress to ensure that courts will construe a law to refer to foreign facts or entities is to describe those facts or entities specifically as foreign. If this is not a "special burden of specificity," ibid., I am not sure what is. The Court's innovation is baseless. The Court derives its assumption from the entirely different, and well-recognized, canon against extraterritorial application of federal statutes: "It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (internal quotation marks omitted). But the majority rightly concedes that the canon against extraterritoriality itself "does not apply directly to this case." Ante, at 389. Though foreign as well as domestic convictions trigger § 922(g)(1)'s prohibition, the statute criminalizes gun possession in this country, not abroad. In prosecuting Small, the Government is enforcing a domestic criminal statute to punish domestic criminal conduct. Pasquantino v. United States, ante, at 371-372 (federal wire fraud statute covers a domestic scheme aimed at defrauding a foreign government of tax revenue). The extraterritoriality cases cited by the Court, ante, at 389, do not support its new assumption. They restrict federal statutes from applying outside the territorial jurisdiction of the United States. See Smith v. United States, 507 U.S. 197, 203-204 (1993) (Federal Tort Claims Act does not apply to claims arising in Antarctica); Arabian American *400 Oil Co., supra, at 249-251 (Title VII of the Civil Rights Act of 1964 does not regulate the employment practices of American firms employing American citizens abroad); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285-286 (1949) (federal labor statute does not apply to a contract between the United States and a private contractor for construction work done in a foreign country); United States v. Palmer, 3 Wheat. 610, 630-634 (1818) (statute punishing piracy on the high seas does not apply to robbery committed on the high seas by a noncitizen on board a ship belonging exclusively to subjects of a foreign state). These straightforward applications of the extraterritoriality canon, restricting federal statutes from reaching conduct beyond U.S. borders, lend no support to the Court's unprecedented rule restricting a federal statute from reaching conduct within U.S. borders. We have, it is true, recognized that the presumption against extraterritorial application of federal statutes is rooted in part in the "commonsense notion that Congress generally legislates with domestic concerns in mind." Smith, supra, at 204, n. 5. But my reading of § 922(g)(1) is entirely true to that notion: Gun possession in this country is surely a "domestic concern." We have also consistently grounded the canon in the risk that extraterritorially applicable U.S. laws could conflict with foreign laws, for example, by subjecting individuals to conflicting obligations. Arabian American Oil Co., supra, at 248. That risk is completely absent in applying § 922(g)(1) to Small's conduct. Quite the opposite, § 922(g)(1) takes foreign law as it finds it. Aside from the extraterritoriality canon, which the Court properly concedes does not apply, I know of no principle of statutory construction justifying the result the Court reaches. Its concession that the canon is inapposite should therefore end this case. Rather than stopping there, the Court introduces its new "assumption about the reach of domestically oriented statutes" *401 sua sponte, without briefing or argument on the point,[5] and without providing guidance on what constitutes a "domestically oriented statut[e]." Ante, at 390. The majority suggests that it means all statutes except those dealing with subjects like "immigration or terrorism," ante, at 391, apparently reversing our previous rule that the extraterritoriality canon "has special force" in statutes "that may involve foreign and military affairs," Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993) (provision of the Immigration and Nationality Act does not apply extraterritorially); cf. Palmer, supra (statute criminalizing piracy on the high seas does not apply to robbery by noncitizen on ship belonging to foreign subjects). The Court's creation threatens to wreak havoc with the established rules for applying the canon against extraterritoriality.[6] B In support of its narrow reading of the statute, the majority opines that the natural reading has inappropriate results. It points to differences between foreign and domestic convictions, primarily attacking the reliability of foreign convictions as a proxy for identifying dangerous individuals. Ante, at 389-390. Citing various foreign laws, the Court observes that, if interpreted to include foreign convictions, § 922(g) would include convictions for business and speech activities "that [United States] laws would permit," ante, at 389; convictions "from a legal system that is inconsistent with an American understanding of fairness," ibid.; and convictions *402 "for conduct that [United States] law punishes far less severely," ante, at 390. The Court therefore concludes that foreign convictions cannot trigger § 922(g)(1)'s prohibition on firearm possession. The Court's claim that foreign convictions punishable by imprisonment for more than a year "somewhat less reliably identif[y] dangerous individuals" than domestic convictions, ibid., is untenable. In compiling examples of foreign convictions that might trigger § 922(g)(1), ante, at 389-390, the Court constructs a parade of horribles. Citing laws of the Russian Soviet Federated Socialist Republic, Cuba, and Singapore, it cherry-picks a few egregious examples of convictions unlikely to correlate with dangerousness, inconsistent with American intuitions of fairness, or punishable more severely than in this country. Ibid. This ignores countless other foreign convictions punishable by more than a year that serve as excellent proxies for dangerousness and culpability.[7] Surely a "reasonable human being" drafting this language would have considered whether foreign convictions are, on average and as a whole, accurate at gauging dangerousness and culpability, not whether the worst-of-the-worst are. Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 854 (1992). The Court also ignores the facts of this very case: A week after *403 completing his sentence for shipping two rifles, eight semiautomatic pistols, and hundreds of rounds of ammunition into Japan, Small bought a gun in this country. It was eminently reasonable for Congress to use convictions punishable by imprisonment for more than a year — foreign no less than domestic — as a proxy for dangerousness. Contrary to the majority's assertion, it makes sense to bar people convicted overseas from possessing guns in the United States. The Court casually dismisses this point with the observation that only "`10 to a dozen'" prosecutions under the statute have involved foreign convictions as predicate convictions. Ante, at 394 (quoting Tr. of Oral Arg. 32). The rarity of such prosecutions, however, only refutes the Court's simultaneous claim, ante, at 389-390, that a parade of horribles will result if foreign convictions count. Moreover, the Court does not claim that any of these few prosecutions has been based on a foreign conviction inconsistent with American law. As far as anyone is aware, the handful of prosecutions thus far rested on foreign convictions perfectly consonant with American law, like Small's conviction for international gunrunning. The Court has no answer for why including foreign convictions is unwise, let alone irrational. C The majority worries that reading § 922(g)(1) to include foreign convictions "creates anomalies" under other firearms-control provisions. Ante, at 391-392. It is true, as the majority notes, that the natural reading of § 922(g)(1) affords domestic offenders more lenient treatment than foreign ones in some respects: A domestic antitrust or business regulatory offender could possess a gun, while a similar foreign offender could not; the perpetrator of a state misdemeanor punishable by two years or less in prison could possess a gun, while an analogous foreign offender could not. Ibid. In other respects, domestic offenders would receive harsher treatment than their foreign counterparts: One who *404 committed a misdemeanor crime of domestic violence in the United States could not possess a gun, while a similar foreign offender could; and a domestic drug offender could receive a 15-year mandatory minimum sentence for unlawful gun possession, while a foreign drug offender could not. Ibid. These outcomes cause the Court undue concern. They certainly present no occasion to employ, nor does the Court invoke, the canon against absurdities. We should employ that canon only "where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result . . . and where the alleged absurdity is so clear as to be obvious to most anyone." Public Citizen v. Department of Justice, 491 U.S. 440, 470-471 (1989) (KENNEDY, J., concurring in judgment); Nixon v. Missouri Municipal League, 541 U.S. 125, 141 (2004) (SCALIA, J., concurring in judgment) ("avoidance of unhappy consequences" is inadequate basis for interpreting a text); cf. Sturges v. Crowninshield, 4 Wheat. 122, 203 (1819) (before disregarding the plain meaning of a constitutional provision, the case "must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application"). Here, the "anomalies" to which the Court points are not absurd. They are, at most, odd; they may even be rational. For example, it is not senseless to bar a Canadian antitrust offender from possessing a gun in this country, while exempting a domestic antitrust offender from the ban. Congress might have decided to proceed incrementally and exempt only antitrust offenses with which it was familiar, namely, domestic ones. In any event, the majority abandons the statute's plain meaning based on results that are at most incongruous and certainly not absurd. As with the extraterritoriality canon, the Court applies a mutant version of a recognized canon when the recognized canon is itself inapposite. *405 Whatever the utility of canons as guides to congressional intent, they are useless when modified in ways that Congress could never have imagined in enacting § 922(g)(1). Even assuming that my reading of the statute generates anomalies, the majority's reading creates ones even more dangerous. As explained above, the majority's interpretation permits those convicted overseas of murder, rape, assault, kidnaping, terrorism, and other dangerous crimes to possess firearms freely in the United States. Supra, at 402-403, and n. 7. Meanwhile, a person convicted domestically of tampering with a vehicle identification number, 18 U.S.C. § 511(a)(1), is barred from possessing firearms. The majority's concern with anomalies provides no principled basis for choosing its interpretation of the statute over mine. D The Court hypothesizes "that Congress did not consider whether the generic phrase `convicted in any court' applies to domestic as well as foreign convictions," ante, at 392, and takes that as license to restrict the clear breadth of the text. Whether the Court's empirical assumption is correct is anyone's guess. Regardless, we have properly rejected this method of guesswork-as-interpretation. In Beecham v. United States, 511 U.S. 368 (1994), we interpreted other provisions of the federal firearms laws to mean that a person convicted of a federal crime is not relieved of the firearms disability unless his civil rights have been restored under federal (as opposed to state) law. We acknowledged the possibility "that the phrases on which our reading of the statute turns . . . were accidents of statutory drafting," id., at 374; and we observed that some legislators might have read the phrases differently from the Court's reading, "or, more likely, . . . never considered the matter at all," ibid. We nonetheless adhered to the unambiguous meaning of the statute. Ibid.; cf. National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994) ("The fact that [the *406 Racketeer Influenced and Corrupt Organizations Act] has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth" (internal quotation marks and brackets omitted)). Here, as in Beecham, "our task is not the hopeless one of ascertaining what the legislators who passed the law would have decided had they reconvened to consider [this] particular cas[e]," 511 U.S., at 374, but the eminently more manageable one of following the ordinary meaning of the text they enacted. That meaning includes foreign convictions. The Court's reliance on the absence of any discussion of foreign convictions in the legislative history is equally unconvincing. Ante, at 393. Reliance on explicit statements in the history, if they existed, would be problematic enough. Reliance on silence in the history is a new and even more dangerous phenomenon. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 73 (2004) (SCALIA, J., dissenting) (criticizing the Court's novel "Canon of Canine Silence"). I do not even agree, moreover, that the legislative history is silent. As the Court describes, the Senate bill that formed the basis for this legislation was amended in Conference, to change the predicate offenses from "`Federal' crimes" punishable by more than one year's imprisonment and "crimes `determined by the laws of a State to be a felony'" to conviction "`in any court of, a crime punishable by a term of imprisonment exceeding one year.'" Ante, at 393. The Court seeks to explain this change by saying that "the enacted version is simpler and . . . avoids potential difficulties arising out of the fact that States may define the term `felony' differently." Ibid. But that does not explain why all limiting reference to "Federal" and "State" was eliminated. The revised provision would have been just as simple, and would just as well have avoided the potential difficulties, if it read "convicted in any Federal or State court of a crime punishable by a term of imprisonment exceeding one year." Surely that would have been the natural change if *407 expansion beyond federal and state convictions were not intended. The elimination of the limiting references suggests that not only federal and state convictions were meant to be covered. Some, of course, do not believe that any statement or text that has not been approved by both Houses of Congress and the President (if he signed the bill) is an appropriate source of statutory interpretation. But for those who do, this committee change ought to be strong confirmation of the fact that "any" means not "any Federal or State," but simply "any." IV The Court never convincingly explains its departure from the natural meaning of § 922(g)(1). Instead, it institutes the troubling rule that "any" does not really mean "any," but may mean "some subset of `any,'" even if nothing in the context so indicates; it distorts the established canons against extraterritoriality and absurdity; it faults without reason Congress' use of foreign convictions to gauge dangerousness and culpability; and it employs discredited methods of determining congressional intent. I respectfully dissent.

Gary Small, having recently emerged from three years in Japanese prison for illegally importing weapons into that *39 country, bought a gun in the United This violated (g)(1), which makes it unlawful for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess a firearm in or affecting commerce. Yet the majority decides that Small's gun possession did not violate the statute, because his prior convictions occurred in a Japanese court rather than an American court. In concluding that "any" means not what it says, but rather "a subset of any," the Court distorts the plain meaning of the statute and departs from established principles of statutory construction. I respectfully dissent. I In December 1992, Small shipped a 19-gallon electric water heater from the United States to Okinawa, Japan, ostensibly as a present for someone in Okinawa. App. to Brief for Appellant in No. 02-278 (CA3), pp. 07a-10a, 30a-31a, 34a, 98a (hereinafter Appellant's App.). Small had sent two other water heaters to Japan that same year. at 23a-27a. Thinking it unusual for a person to ship a water tank from overseas as a present, at 99a, Japanese customs officials searched the heater and discovered 2 rifles, 8 semiautomatic pistols, and 410 rounds of ammunition, at 3a-4a; at a, 267a, 277a. The Japanese Government indicted Small on multiple counts of violating Japan's weapons-control and customs laws. at 261a-a. Each offense was punishable by imprisonment for a term exceeding one year. Small was tried before a three-judge court in Naha, Japan, Appellant's App. 4a, convicted on all counts on April 14, 333 F.3d, at and sentenced to years' imprisonment with credit for 320 days served, at n. 1; Government's Brief in Support of Detention in Crim. No. 00-1 (WD Pa.), pp. 3-4. He was paroled on November 22, 1996, and his parole terminated on May 26, 333 F.3d, at n. 1. *396 A week after completing parole for his Japanese convictions, on June 2, 1998, Small purchased a 9-millimeter SWD Cobray pistol from a firearms dealer in Pennsylvania. Appellant's App. 48a, 98a. Some time later, a search of his residence, business premises, and automobile revealed a380-caliber Browning pistol and more than 300 rounds of ammunition. at 47a-1a, 98a-99a. This prosecution ensued. II The plain terms of 922(g)(1) prohibit Small — a person "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" — from possessing a firearm in the United "Read naturally, the word `any' has an expansive meaning, that is, `one or some indiscriminately of whatever kind.'" United ; see also Department of Housing and Urban 3 U.S. 12, ; 22 U.S. 398, ; United 11 U.S. 30, 36, 38 () No exceptions appear on the face of the statute; "[n]o modifier is present, and nothing suggests any restriction," 44 U.S. on the scope of the term "court." See at The broad phrase "any court" unambiguously includes all judicial bodies[1] with jurisdiction to impose the requisite conviction — a conviction for a crime punishable by imprisonment for a term of more than a year. Indisputably, Small was convicted in a Japanese court of crimes punishable by a prison term exceeding one year. The clear terms of the statute prohibit him from possessing a gun in the United Of course, the phrase "any court," like all other statutory language, must be read in context. E.g., 08 U.S. 129, The context of 922(g)(1), however, suggests that there is no geographic limit on the scope of "any court."[2] By contrast to other parts of the firearms-control law that expressly mention only state or federal law, "any court" is not qualified by jurisdiction. See 18 U.S.C. 921(a)(20) ; 921(a)(33)(A)(i) (defining a "misdemeanor crime of domestic violence" by *398 reference to "Federal or State law").[3] Congress' explicit use of "Federal" and "State" in other provisions shows that it specifies such restrictions when it wants to do so. Counting foreign convictions, moreover, implicates no special federalism concerns or other clear statement rules that have justified construing "any" narrowly in the past.[4] And it is eminently practical to put foreign convictions to the same use as domestic ones; foreign convictions indicate dangerousness just as reliably as domestic convictions. See Part III-B, infra. The expansive phrase "convicted in any court" straightforwardly encompasses Small's Japanese convictions. III Faced with the inescapably broad text, the Court narrows the statute by assuming that the text applies only to domestic convictions, ante, at 388-389; criticizing the accuracy of foreign convictions as a proxy for dangerousness, ante, at 389-390; finding that the broad, natural reading of the statute "creates anomalies," ante, at 391; and suggesting that Congress did not consider whether foreign convictions counted, ante, at 393. None of these arguments is persuasive. *399 A The Court first invents a canon of statutory interpretation — what it terms "an ordinary assumption about the reach of domestically oriented statutes," ante, at 390 — to cabin the statute's reach. This new "assumption" imposes a clear statement rule on Congress: Absent a clear statement, a statute refers to nothing outside the United The Court's denial that it has created a clear statement rule is implausible. After today's ruling, the only way for Congress to ensure that courts will construe a law to refer to foreign facts or entities is to describe those facts or entities specifically as foreign. If this is not a "special burden of specificity," ib I am not sure what is. The Court's innovation is baseless. The Court derives its assumption from the entirely different, and well-recognized, canon against extraterritorial application of federal statutes: "It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United " But the majority rightly concedes that the canon against extraterritoriality itself "does not apply directly to this case." Ante, at 389. Though foreign as well as domestic convictions trigger 922(g)(1)'s prohibition, the statute criminalizes gun possession in this country, not abroad. In prosecuting Small, the Government is enforcing a domestic criminal statute to punish domestic criminal conduct. Pasquantino v. United States, ante, at 371-372 (federal wire fraud statute covers a domestic scheme aimed at defrauding a foreign government of tax revenue). The extraterritoriality cases cited by the Court, ante, at 389, do not support its new assumption. They restrict federal statutes from applying outside the territorial jurisdiction of the United See 07 U.S. 197, ; Arabian American *400 Oil at 249-21 ; Foley Bros., 28-286 ; United These straightforward applications of the extraterritoriality canon, restricting federal statutes from reaching conduct beyond U.S. borders, lend no support to the Court's unprecedented rule restricting a federal statute from reaching conduct within U.S. borders. We have, it is true, recognized that the presumption against extraterritorial application of federal statutes is rooted in part in the "commonsense notion that Congress generally legislates with domestic concerns in mind." at 204, n. But my reading of 922(g)(1) is entirely true to that notion: Gun possession in this country is surely a "domestic concern." We have also consistently grounded the canon in the risk that extraterritorially applicable U.S. laws could conflict with foreign laws, for example, by subjecting individuals to conflicting obligations. Arabian American Oil at That risk is completely absent in applying 922(g)(1) to Small's conduct. Quite the opposite, 922(g)(1) takes foreign law as it finds it. Aside from the extraterritoriality canon, which the Court properly concedes does not apply, I know of no principle of statutory construction justifying the result the Court reaches. Its concession that the canon is inapposite should therefore end this case. Rather than stopping there, the Court introduces its new "assumption about the reach of domestically oriented statutes" *401 sua sponte, without briefing or argument on the point,[] and without providing guidance on what constitutes a "domestically oriented statut[e]." Ante, at 390. The majority suggests that it means all statutes except those dealing with subjects like "immigration or terrorism," ante, at 391, apparently reversing our previous rule that the extraterritoriality canon "has special force" in statutes "that may involve foreign and military affairs," 09 U.S. 1, ; cf. The Court's creation threatens to wreak havoc with the established rules for applying the canon against extraterritoriality.[6] B In support of its narrow reading of the statute, the majority opines that the natural reading has inappropriate results. It points to differences between foreign and domestic convictions, primarily attacking the reliability of foreign convictions as a proxy for identifying dangerous individuals. Ante, at 389-390. Citing various foreign laws, the Court observes that, if interpreted to include foreign convictions, 922(g) would include convictions for business and speech activities "that [United States] laws would permit," ante, at 389; convictions "from a legal system that is inconsistent with an American understanding of fairness," ; and convictions *402 "for conduct that [United States] law punishes far less severely," ante, at 390. The Court therefore concludes that foreign convictions cannot trigger 922(g)(1)'s prohibition on firearm possession. The Court's claim that foreign convictions punishable by imprisonment for more than a year "somewhat less reliably identif[y] dangerous individuals" than domestic convictions, ib is untenable. In compiling examples of foreign convictions that might trigger 922(g)(1), ante, at 389-390, the Court constructs a parade of horribles. Citing laws of the Russian Soviet Federated Socialist Republic, Cuba, and Singapore, it cherry-picks a few egregious examples of convictions unlikely to correlate with dangerousness, inconsistent with American intuitions of fairness, or punishable more severely than in this country. This ignores countless other foreign convictions punishable by more than a year that serve as excellent proxies for dangerousness and culpability.[7] Surely a "reasonable human being" drafting this language would have considered whether foreign convictions are, on average and as a whole, accurate at gauging dangerousness and culpability, not whether the worst-of-the-worst are. Breyer, On the Uses of Legislative History in Interpreting Statutes, 6 S. Cal. L. Rev. 84, 84 The Court also ignores the facts of this very case: A week after *403 completing his sentence for shipping two rifles, eight semiautomatic pistols, and hundreds of rounds of ammunition into Japan, Small bought a gun in this country. It was eminently reasonable for Congress to use convictions punishable by imprisonment for more than a year — foreign no less than domestic — as a proxy for dangerousness. Contrary to the majority's assertion, it makes sense to bar people convicted overseas from possessing guns in the United The Court casually dismisses this point with the observation that only "`10 to a dozen'" prosecutions under the statute have involved foreign convictions as predicate convictions. Ante, at 394 (quoting Tr. of Oral Arg. 32). The rarity of such prosecutions, however, only refutes the Court's simultaneous claim, ante, at 389-390, that a parade of horribles will result if foreign convictions count. Moreover, the Court does not claim that any of these few prosecutions has been based on a foreign conviction inconsistent with American law. As far as anyone is aware, the handful of prosecutions thus far rested on foreign convictions perfectly consonant with American law, like Small's conviction for international gunrunning. The Court has no answer for why including foreign convictions is unwise, let alone irrational. C The majority worries that reading 922(g)(1) to include foreign convictions "creates anomalies" under other firearms-control provisions. Ante, at 391-392. It is true, as the majority notes, that the natural reading of 922(g)(1) affords domestic offenders more lenient treatment than foreign ones in some respects: A domestic antitrust or business regulatory offender could possess a gun, while a similar foreign offender could not; the perpetrator of a state misdemeanor punishable by two years or less in prison could possess a gun, while an analogous foreign offender could not. In other respects, domestic offenders would receive harsher treatment than their foreign counterparts: One who *404 committed a misdemeanor crime of domestic violence in the United States could not possess a gun, while a similar foreign offender could; and a domestic drug offender could receive a 1-year mandatory minimum sentence for unlawful gun possession, while a foreign drug offender could not. These outcomes cause the Court undue concern. They certainly present no occasion to employ, nor does the Court invoke, the canon against absurdities. We should employ that canon only "where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result and where the alleged absurdity is so clear as to be obvious to most anyone." Public ; 41 U.S. 12, ("avoidance of unhappy consequences" is inadequate basis for interpreting a text); cf. Here, the "anomalies" to which the Court points are not absurd. They are, at most, odd; they may even be rational. For example, it is not senseless to bar a Canadian antitrust offender from possessing a gun in this country, while exempting a domestic antitrust offender from the ban. Congress might have decided to proceed incrementally and exempt only antitrust offenses with which it was familiar, namely, domestic ones. In any event, the majority abandons the statute's plain meaning based on results that are at most incongruous and certainly not absurd. As with the extraterritoriality canon, the Court applies a mutant version of a recognized canon when the recognized canon is itself inapposite. *40 Whatever the utility of canons as guides to congressional intent, they are useless when modified in ways that Congress could never have imagined in enacting 922(g)(1). Even assuming that my reading of the statute generates anomalies, the majority's reading creates ones even more dangerous. As explained above, the majority's interpretation permits those convicted overseas of murder, rape, assault, kidnaping, terrorism, and other dangerous crimes to possess firearms freely in the United and n. 7. Meanwhile, a person convicted domestically of tampering with a vehicle identification number, 18 U.S.C. 11(a)(1), is barred from possessing firearms. The majority's concern with anomalies provides no principled basis for choosing its interpretation of the statute over mine. D The Court hypothesizes "that Congress did not consider whether the generic phrase `convicted in any court' applies to domestic as well as foreign convictions," ante, at 392, and takes that as license to restrict the clear breadth of the text. Whether the Court's empirical assumption is correct is anyone's guess. Regardless, we have properly rejected this method of guesswork-as-interpretation. In 11 U.S. 368 (), we interpreted other provisions of the federal firearms laws to mean that a person convicted of a federal crime is not relieved of the firearms disability unless his civil rights have been restored under federal (as opposed to state) law. We acknowledged the possibility "that the phrases on which our reading of the statute turns were accidents of statutory drafting," ; and we observed that some legislators might have read the phrases differently from the Court's reading, "or, more likely, never considered the matter at all," We nonetheless adhered to the unambiguous meaning of the statute. ; cf. National Organization for Women, 10 U.S. 249, () Here, as in Beecham, "our task is not the hopeless one of ascertaining what the legislators who passed the law would have decided had they reconvened to consider [this] particular cas[e]," 11 U.S., but the eminently more manageable one of following the ordinary meaning of the text they enacted. That meaning includes foreign convictions. The Court's reliance on the absence of any discussion of foreign convictions in the legislative history is equally unconvincing. Ante, at 393. Reliance on explicit statements in the history, if they existed, would be problematic enough. Reliance on silence in the history is a new and even more dangerous phenomenon. Koons Buick Pontiac GMC, 43 U.S. 0, (criticizing the Court's novel "Canon of Canine Silence"). I do not even agree, moreover, that the legislative history is silent. As the Court describes, the Senate bill that formed the basis for this legislation was amended in Conference, to change the predicate offenses from "`Federal' crimes" punishable by more than one year's imprisonment and "crimes `determined by the laws of a State to be a felony'" to conviction "`in any court of, a crime punishable by a term of imprisonment exceeding one year.'" Ante, at 393. The Court seeks to explain this change by saying that "the enacted version is simpler and avoids potential difficulties arising out of the fact that States may define the term `felony' differently." But that does not explain why all limiting reference to "Federal" and "State" was eliminated. The revised provision would have been just as simple, and would just as well have avoided the potential difficulties, if it read "convicted in any Federal or State court of a crime punishable by a term of imprisonment exceeding one year." Surely that would have been the natural change if *407 expansion beyond federal and state convictions were not intended. The elimination of the limiting references suggests that not only federal and state convictions were meant to be covered. Some, of course, do not believe that any statement or text that has not been approved by both Houses of Congress and the President (if he signed the bill) is an appropriate source of statutory interpretation. But for those who do, this committee change ought to be strong confirmation of the fact that "any" means not "any Federal or State," but simply "any." IV The Court never convincingly explains its departure from the natural meaning of 922(g)(1). Instead, it institutes the troubling rule that "any" does not really mean "any," but may mean "some subset of `any,'" even if nothing in the context so indicates; it distorts the established canons against extraterritoriality and absurdity; it faults without reason Congress' use of foreign convictions to gauge dangerousness and culpability; and it employs discredited methods of determining congressional intent. I respectfully dissent.

Justice Thomas

majority

Raytheon Co. v. Hernandez

2003-12-02

https://www.courtlistener.com/opinion/131147/raytheon-co-v-hernandez/

https://www.courtlistener.com/api/rest/v3/clusters/131147/

2003-005

The Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, as amended, 42 U.S. C. § 12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." § 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer's unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. 537 U.S. 1187 (2003). I Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years.[1] On July 11, 1991, respondent's appearance *47 and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent's behavior violated petitioner's workplace conduct rules, respondent was forced to resign. Respondent's "Employee Separation Summary" indicated as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." App. 12a. More than two years later, on January 24, 1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a "faithful and active member" of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. Id., at 13a-15a. Joanne Bockmiller, an employee in the company's Labor Relations Department, reviewed respondent's application. Bockmiller testified in her deposition that since respondent's application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent's application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. Id., at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent's application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a "record of" addiction. Id., at 63a-64a. *48 Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent's charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote: "The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation. "The Company maintains it's [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations. . . . Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire." Id., at 19a-20a. This response, together with evidence that the letters submitted with respondent's employment application may have alerted Bockmiller to the reason for respondent's prior termination, led the EEOC to conclude that petitioner may have "rejected [respondent's] application based on his record of past alcohol and drug use." Id., at 94a (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was "reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability." Id., at 95a. The EEOC issued a right-to-sue *49 letter, and respondent subsequently filed this action alleging a violation of the ADA. Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U.S. C. §§ 12102(2)(B)-(C).[2] In response to petitioner's motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner's motion for summary judgment with respect to respondent's disparate-treatment claim. However, the District Court refused to consider respondent's disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner. The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. Hernandez v. Hughes Missile Systems Co., 298 F.3d 1030, 1037, n. 20 (CA9 2002). In addressing respondent's disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).[3] First, the Ninth Circuit found that with respect *50 to respondent's prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner's refusal to rehire him was his past record of drug addiction.[4] 298 F. 3d, at 1034-1035. The Court of Appeals thus held that with respect to respondent's prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Id., at 1035. Because petitioner does not challenge this aspect of the Ninth Circuit's decision, we do not address it here. The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment action. 411 U.S., at 802. Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason *51 for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner's no-rehire rule was lawful on its face, held the policy to be unlawful "as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." 298 F.3d, at 1036. The Court of Appeals concluded that petitioner's application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent's application: "Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the `disability' and thus of the fact that she is committing an unlawful act. . . . Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA." Id., at 1036-1037. In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent's prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, non-discriminatory *52 reason under the ADA.[5] And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that "petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, supra, at 804. II This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that "`[d]isparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]." Teamsters v. United States, 431 U.S. 324, 335, n. 15 (1977). See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). Liability in a disparate-treatment case "depends on whether the protected trait . . . actually motivated the employer's decision." Id., at 610. By contrast, disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Teamsters, supra, at 335-336, n. 15. Under a disparate-impact theory of discrimination, "a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of *53 the employer's subjective intent to discriminate that is required in a `disparate-treatment' case." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-646 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, § 105, 105 Stat. 1074-1075, 42 U.S. C. § 2000e-2(k) (1994 ed.). Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U.S. C. § 12112(b) (defining "discriminate" to include "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability" and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability"). Because "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," Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252, n. 5 (1981), courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent's case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent's record of a disability. 298 F.3d, at 1037, n. 20. Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite petitioner's proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not *54 a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination.[6] The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner's policy "screens out persons with a record of addiction," and further noted that the company had not raised a business necessity defense, 298 F.3d, at 1036-1037, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e.g., Grano v. Department of Development of Columbus, 637 F.2d 1073, 1081 (CA6 1980) ("In a disparate impact situation . . . the issue is whether a neutral selection device . . . screens out disproportionate numbers of [the protected class]").[7] By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner's no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was *55 terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent's application, petitioner's decision not to rehire respondent can, in no way, be said to have been motivated by respondent's disability. The Court of Appeals rejected petitioner's legitimate, nondiscriminatory reason for refusing to rehire respondent because it "serves to bar the re-employment of a drug addict despite his successful rehabilitation." 298 F.3d, at 1036-1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent's disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER took no part in the decision of this case. JUSTICE BREYER took no part in the consideration or decision of this case.

The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S. C. 12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer's unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. I Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years.[1] On July 11, 1991, respondent's appearance *47 and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent's behavior violated petitioner's workplace conduct rules, respondent was forced to resign. Respondent's "Employee Separation Summary" indicated as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." App. 12a. More than two years later, on January 24, 1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a "faithful and active member" of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. at 13a-15a. Joanne Bockmiller, an employee in the company's Labor Relations Department, reviewed respondent's application. Bockmiller testified in her deposition that since respondent's application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent's application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent's application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a "record of" addiction. at 63a-64a. *48 Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent's charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote: "The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation. "The Company maintains it's [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations. Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire." at 19a-20a. This response, together with evidence that the letters submitted with respondent's employment application may have alerted Bockmiller to the reason for respondent's prior termination, led the EEOC to conclude that petitioner may have "rejected [respondent's] application based on his record of past alcohol and drug use." at 94a (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was "reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability." at 95a. The EEOC issued a right-to-sue *49 letter, and respondent subsequently filed this action alleging a violation of the ADA. Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U.S. C. 12102(2)(B)-(C).[2] In response to petitioner's motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner's motion for summary judgment with respect to respondent's disparate-treatment claim. However, the District Court refused to consider respondent's disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner. The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. In addressing respondent's disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas[3] First, the Ninth Circuit found that with respect *50 to respondent's prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner's refusal to rehire him was his past record of drug addiction.[4] -1035. The Court of Appeals thus held that with respect to respondent's prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Because petitioner does not challenge this aspect of the Ninth Circuit's decision, we do not address it here. The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason *51 for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner's no-rehire rule was lawful on its face, held the policy to be unlawful "as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." The Court of Appeals concluded that petitioner's application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent's application: "Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the `disability' and thus of the fact that she is committing an unlawful act. Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA." In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent's prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, non-discriminatory *52 reason under the ADA.[5] And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that "petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, II This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that "`[d]isparate treatment' is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]." See also Hazen Paper Liability in a disparate-treatment case "depends on whether the protected trait actually motivated the employer's decision." By contrast, disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Under a disparate-impact theory of discrimination, "a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of *53 the employer's subjective intent to discriminate that is required in a `disparate-treatment' case." Wards Cove Packing superseded by statute on other grounds, Civil Rights Act of 1991, 105, -1075, 42 U.S. C. 2000e-2(k) (1994 ed.). Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U.S. C. 12112(b) (defining "discriminate" to include "utilizing standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability" and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability"). Because "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," Texas Dept. of Community courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent's case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent's record of a disability. 298 F.3d, at Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite petitioner's proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not *54 a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination.[6] The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner's policy "screens out persons with a record of addiction," and further noted that the company had not raised a business necessity -1037, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e.g.,[7] By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner's no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was *55 terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent's application, petitioner's decision not to rehire respondent can, in no way, be said to have been motivated by respondent's disability. The Court of Appeals rejected petitioner's legitimate, nondiscriminatory reason for refusing to rehire respondent because it "serves to bar the re-employment of a drug addict despite his successful rehabilitation." -1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent's disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER took no part in the decision of this case. JUSTICE BREYER took no part in the consideration or decision of this case.

Justice Rehnquist

majority

Dickerson v. United States

2000-06-26

https://www.courtlistener.com/opinion/118380/dickerson-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118380/

1999-081

In Miranda v. Arizona, 384 U.S. 436 (1966), we held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted in *432 evidence. In the wake of that decision, Congress enacted 18 U.S. C. § 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence, all in violation of the applicable provisions of Title 18 of the United States Code. Before trial, Dickerson moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received "Miranda warnings" before being interrogated. The District Court granted his motion to suppress, and the Government took an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit. That court, by a divided vote, reversed the District Court's suppression order. It agreed with the District Court's conclusion that petitioner had not received Miranda warnings before making his statement. But it went on to hold that § 3501, which in effect makes the admissibility of statements such as Dickerson's turn solely on whether they were made voluntarily, was satisfied in this case. It then concluded that our decision in Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the question of admissibility. 166 F.3d 667 (1999). Because of the importance of the questions raised by the Court of Appeals' decision, we granted certiorari, 528 U.S. 1045 (1999), and now reverse. We begin with a brief historical account of the law governing the admission of confessions. Prior to Miranda, we *433 evaluated the admissibility of a suspect's confession under a voluntariness test. The roots of this test developed in the common law, as the courts of England and then the United States recognized that coerced confessions are inherently untrustworthy. See, e. g., King v. Rudd, 1 Leach 115, 117-118, 122-123, 168 Eng. Rep. 160, 161, 164 (K. B. 1783) (Lord Mansfield, C. J.) (stating that the English courts excluded confessions obtained by threats and promises); King v. Warickshall, 1 Leach 262, 263-264, 168 Eng. Rep. 234, 235 (K. B. 1783) ("A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt . . . but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape . . . that no credit ought to be given to it; and therefore it is rejected"); King v. Parratt, 4 Car. & P. 570, 172 Eng. Rep. 829 (N. P. 1831); Queen v. Garner, 1 Denio 329, 169 Eng. Rep. 267 (Ct. Crim. App. 1848); Queen v. Baldry, 2 Denio 430, 169 Eng. Rep. 568 (Ct. Crim. App. 1852); Hopt v. Territory of Utah, 110 U.S. 574 (1884); Pierce v. United States, 160 U.S. 355, 357 (1896). Over time, our cases recognized two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment. See, e. g., Bram v. United States, 168 U.S. 532, 542 (1897) (stating that the voluntariness test "is controlled by that portion of the Fifth Amendment . . . commanding that no person `shall be compelled in any criminal case to be a witness against himself' "); Brown v. Mississippi, 297 U.S. 278 (1936) (reversing a criminal conviction under the Due Process Clause because it was based on a confession obtained by physical coercion). While Bram was decided before Brown and its progeny, for the middle third of the 20th century our cases based the rule against admitting coerced confessions primarily, if not exclusively, on notions of due process. We applied the *434 due process voluntariness test in "some 30 different cases decided during the era that intervened between Brown and Escobedo v. Illinois, 378 U.S. 478 [(1964)]." Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973). See, e. g., Haynes v. Washington, 373 U.S. 503 (1963); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Chambers v. Florida, 309 U.S. 227 (1940). Those cases refined the test into an inquiry that examines "whether a defendant's will was overborne" by the circumstances surrounding the giving of a confession. Schneckloth, 412 U. S., at 226. The due process test takes into consideration "the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." Ibid. See also Haynes, supra, at 513; Gallegos v. Colorado, 370 U.S. 49, 55 (1962); Reck v. Pate, 367 U.S. 433, 440 (1961) ("[A]ll the circumstances attendant upon the confession must be taken into account"); Malinski v. New York, 324 U.S. 401, 404 (1945) ("If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant"). The determination "depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing." Stein v. New York, 346 U.S. 156, 185 (1953). We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily. But our decisions in Malloy v. Hogan, 378 U.S. 1 (1964), and Miranda changed the focus of much of the inquiry in determining the admissibility of suspects' incriminating statements. In Malloy, we held that the Fifth Amendment's Self-Incrimination Clause is incorporated in the Due Process Clause of the Fourteenth Amendment and thus applies to the States. 378 U.S., at 6-11. We decided Miranda on the heels of Malloy. In Miranda, we noted that the advent of modern custodial police interrogation brought with it an increased concern *435 about confessions obtained by coercion.[1] 384 U. S., at 445-458. Because custodial police interrogation, by its very nature, isolates and pressures the individual, we stated that "[e]ven without employing brutality, the `third degree' or [other] specific stratagems, . . . custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." Id., at 455. We concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be "accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself." Id., at 439. Accordingly, we laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow." Id., at 442. Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "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. Two years after Miranda was decided, Congress enacted § 3501. That section provides, in relevant part: "(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession . . . shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial *436 judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. "(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. "The presence or absence of any of the abovementioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession." Given § 3501's express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda. See also Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J.,concurring) (stating that, prior to Miranda, *437 "voluntariness vel non was the touchstone of admissibility of confessions"). Because of the obvious conflict between our decision in Miranda and § 3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, § 3501's totalityof-the-circumstances approach must prevail over Miranda `s requirement of warnings; if not, that section must yield to Miranda `s more specific requirements. The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals. Carlisle v. United States, 517 U.S. 416, 426 (1996). However, the power to judicially create and enforce nonconstitutional "rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress." Palermo v. United States, 360 U.S. 343, 353, n. 11 (1959) (citing Funk v. United States, 290 U.S. 371, 382 (1933), and Gordon v. United States, 344 U.S. 414, 418 (1953)). Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution. Palermo, supra, at 345-348; Carlisle, supra, at 426; Vance v. Terrazas, 444 U.S. 252, 265 (1980). But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e. g., City of Boerne v. Flores, 521 U.S. 507, 517-521 (1997). This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction. Recognizing this point, the Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision. 166 F.3d, at 687-692. Relying on the fact that we have created several exceptions to Miranda `s warnings requirement and that we have repeatedly referred to the Miranda warnings as "prophylactic," New York v. Quarles, 467 U.S. 649, 653 *438 (1984), and "not themselves rights protected by the Constitution," Michigan v. Tucker, 417 U.S. 433, 444 (1974),[2] the Court of Appeals concluded that the protections announced in Miranda are not constitutionally required. 166 F.3d, at 687-690. We disagree with the Court of Appeals' conclusion, although we concede that there is language in some of our opinions that supports the view taken by that court. But first and foremost of the factors on the other side—that Miranda is a constitutional decision—is that both Miranda and two of its companion cases applied the rule to proceedings in state courts—to wit, Arizona, California, and New York. See 384 U.S., at 491-494, 497-499. Since that time, we have consistently applied Miranda `s rule to prosecutions arising in state courts. See, e. g., Stansbury v. California, 511 U.S. 318 (1994) (per curiam); Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988); Edwards v. Arizona, 451 U.S. 477, 481-482 (1981). It is beyond dispute that we do not hold a supervisory power over the courts of the several States. Smith v. Phillips, 455 U.S. 209, 221 (1982) ("Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension"); Cicenia v. Lagay, 357 U.S. 504, 508-509 (1958). With respect to proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution." Mu'Min v. Virginia, 500 U.S. 415, 422 (1991). See also Harris v. Rivera, 454 U.S. 339, 344-345 (1981) (per curiam) (stating that "[f]ederal judges . . . may not require the observance *439 of any special procedures" in state courts "except when necessary to assure compliance with the dictates of the Federal Constitution").[3] The Miranda opinion itself begins by stating that the Court granted certiorari "to explore some facets of the problems . . . of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow. " 384 U.S., at 441-442 (emphasis added). In fact, the majority opinion is replete with statements indicating that the majority thought it was announcing a constitutional rule.[4] Indeed, the Court's ultimate conclusion was that the *440 unwarned confessions obtained in the four cases before the Court in Miranda "were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege."[5]Id., at 491. Additional support for our conclusion that Miranda is constitutionally based is found in the Miranda Court's invitation for legislative action to protect the constitutional right against coerced self-incrimination. After discussing the "compelling pressures" inherent in custodial police interrogation, the Miranda Court concluded that, "[i]n order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." Id., at 467. However, the Court emphasized that it could not foresee "the potential alternatives for protecting the privilege which might be devised by Congress or the States," and it accordingly opined that the Constitution would not preclude legislative solutions that differed from the prescribed Miranda warnings but which were "at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it."[6]Ibid. *441 The Court of Appeals also relied on the fact that we have, after our Miranda decision, made exceptions from its rule in cases such as New York v. Quarles, 467 U.S. 649 (1984), and Harris v. New York, 401 U.S. 222 (1971). See 166 F.3d, at 672, 689-691. But we have also broadened the application of the Miranda doctrine in cases such as Doyle v. Ohio, 426 U.S. 610 (1976), and Arizona v. Roberson, 486 U.S. 675 (1988). These decisions illustrate the principle—not that Miranda is not a constitutional rule—but that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision. The Court of Appeals also noted that in Oregon v. Elstad, 470 U.S. 298 (1985), we stated that "`[t]he Miranda exclusionary rule . . . serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself.' " 166 F.3d, at 690 (quoting Elstad, supra, at 306). Our decision in that case—refusing to apply the traditional "fruits" doctrine developed in Fourth Amendment cases—does not prove that Miranda is a nonconstitutional decision, but simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment. As an alternative argument for sustaining the Court of Appeals' decision, the court-invited amicus curiae[7] contends that the section complies with the requirement that a legislative alternative to Miranda be equally as effective in preventing coerced confessions. See Brief for Paul G. Cassell *442 as Amicus Curiae 28-39. We agree with the amicus ` contention that there are more remedies available for abusive police conduct than there were at the time Miranda was decided, see, e. g., Wilkins v. May, 872 F.2d 190, 194 (CA7 1989) (applying Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), to hold that a suspect may bring a federal cause of action under the Due Process Clause for police misconduct during custodial interrogation). But we do not agree that these additional measures supplement § 3501's protections sufficiently to meet the constitutional minimum. Miranda requires procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored. See, e. g., 384 U. S., at 467. As discussed above, § 3501 explicitly eschews a requirement of preinterrogation warnings in favor of an approach that looks to the administration of such warnings as only one factor in determining the voluntariness of a suspect's confession. The additional remedies cited by amicus do not, in our view, render them, together with § 3501, an adequate substitute for the warnings required by Miranda. The dissent argues that it is judicial overreaching for this Court to hold § 3501 unconstitutional unless we hold that the Miranda warnings are required by the Constitution, in the sense that nothing else will suffice to satisfy constitutional requirements. Post, at 453-454, 465 (opinion of Scalia, J.). But we need not go further than Miranda to decide this case. In Miranda, the Court noted that reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking an involuntary custodial confession, 384 U. S, at 457, a risk that the Court found unacceptably great when the confession is offered in the case in chief to prove guilt. The Court therefore concluded that something more than the totality test was necessary. See ibid.; see also id., at 467, 490-491. As discussed above, § 3501 reinstates the totality test as *443 sufficient. Section 3501 therefore cannot be sustained if Miranda is to remain the law. Whether or not we would agree with Miranda `s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. See, e. g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Burger, C. J., concurring in judgment) ("The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date"). While "`stare decisis is not an inexorable command,' " State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991)), particularly when we are interpreting the Constitution, Agostini v. Felton, 521 U.S. 203, 235 (1997), "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some `special justification.' " United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996) (quoting Payne, supra, at 842 (Souter, J., concurring), in turn quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U.S. 314, 331-332 (1999) (Scalia, J., dissenting) (stating that the fact that a rule has found "`wide acceptance in the legal culture' " is "adequate reason not to overrule" it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, see, e. g., Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989), we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned *444 statements may not be used as evidence in the prosecution's case in chief. The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his "rights," may nonetheless be excluded and a guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner. See, e. g., Haynes v. Washington, 373 U. S., at 515 ("The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw"). The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry. But as we said in Berkemer v. McCarty, 468 U.S. 420 (1984), "[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was `compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." Id., at 433, n. 20. In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.[8] The judgment of the Court of Appeals is therefore Reversed.

In we held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted in *432 evidence. In the wake of that decision, Congress enacted 18 U.S. C. 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence, all in violation of the applicable provisions of Title 18 of the United States Code. Before trial, Dickerson moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received "Miranda warnings" before being interrogated. The District Court granted his motion to suppress, and the Government took an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit. That court, by a divided vote, reversed the District Court's suppression order. It agreed with the District Court's conclusion that petitioner had not received Miranda warnings before making his statement. But it went on to hold that 3501, which in effect makes the admissibility of statements such as Dickerson's turn solely on whether they were made voluntarily, was satisfied in this case. It then concluded that our decision in Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the question of admissibility. Because of the importance of the questions raised by the Court of Appeals' decision, we granted certiorari, and now reverse. We begin with a brief historical account of the law governing the admission of confessions. Prior to Miranda, we *433 evaluated the admissibility of a suspect's confession under a voluntariness test. The roots of this test developed in the common law, as the courts of England and then the United States recognized that coerced confessions are inherently untrustworthy. See, e. King v. Rudd, 1 Leach 115, 117-118, 122-123, 168 En Rep. 160, 161, 164 (K. B. 1783) (Lord Mansfield, C. J.) (stating that the English courts excluded confessions obtained by threats and promises); King v. Warickshall, 1 Leach 262, 263-264, 168 En Rep. 234, (K. B. 1783) ("A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape that no credit ought to be given to it; and therefore it is rejected"); King v. Parratt, 4 Car. & P. 570, 172 En Rep. 829 (N. P. 1831); ; ; ; Over time, our cases recognized two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment. See, e. ; While Bram was decided before Brown and its progeny, for the middle third of the th century our cases based the rule against admitting coerced confessions primarily, if not exclusively, on notions of due process. We applied the *434 due process voluntariness test in "some 30 different cases decided during the era that intervened between Brown and ]." See, e. ; ; Those cases refined the test into an inquiry that examines "whether a defendant's will was overborne" by the circumstances surrounding the giving of a confession. The due process test takes into consideration "the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." See also ; ; ("A]ll the circumstances attendant upon the confession must be taken into account"); The determination "depends] upon a weighing of the circumstances of pressure against the power of resistance of the person confessin" We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily. But our decisions in and Miranda changed the focus of much of the inquiry in determining the admissibility of suspects' incriminating statements. In Malloy, we held that the Fifth Amendment's Self-Incrimination Clause is incorporated in the Due Process Clause of the Fourteenth Amendment and thus applies to the -11. We decided Miranda on the heels of Malloy. In Miranda, we noted that the advent of modern custodial police interrogation brought with it an increased concern *435 about confessions obtained by coercion.1] -458. Because custodial police interrogation, by its very nature, isolates and pressures the individual, we stated that "e]ven without employing brutality, the `third degree' or other] specific stratagems, custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." at 4. We concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be "accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself." Accordingly, we laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow." Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "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." Two years after Miranda was decided, Congress enacted 3501. That section provides, in relevant part: "(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial *436 judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. "(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. "The presence or absence of any of the abovementioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession." Given 3501's express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda. See also (stating that, prior to Miranda, *437 "voluntariness vel non was the touchstone of admissibility of confessions"). Because of the obvious conflict between our decision in Miranda and 3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, 3501's totalityof-the-circumstances approach must prevail over Miranda `s requirement of warnings; if not, that section must yield to Miranda `s more specific requirements. The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals. However, the power to judicially create and enforce nonconstitutional "rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress." and ). Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution. ; at ; But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e. City of This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction. Recognizing this point, the Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision. -692. Relying on the fact that we have created several exceptions to Miranda `s warnings requirement and that we have repeatedly referred to the Miranda warnings as "prophylactic," New and "not themselves rights protected by the Constitution,"2] the Court of Appeals concluded that the protections announced in Miranda are not constitutionally -690. We disagree with the Court of Appeals' conclusion, although we concede that there is language in some of our opinions that supports the view taken by that court. But first and foremost of the factors on the other side—that Miranda is a constitutional decision—is that both Miranda and two of its companion cases applied the rule to proceedings in state courts—to wit, Arizona, California, and New York. See -494, 497-499. Since that time, we have consistently applied Miranda `s rule to prosecutions arising in state courts. See, e. ; ; ; It is beyond dispute that we do not hold a supervisory power over the courts of the several 4 U.S. 9, ; U.S. 504, With respect to proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution." See also (stating that "f]ederal judges may not require the observance *439 of any special procedures" in state courts "except when necessary to assure compliance with the dictates of the Federal Constitution").3] The Miranda opinion itself begins by stating that the Court granted certiorari "to explore some facets of the problems of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow. " -442 In fact, the majority opinion is replete with statements indicating that the majority thought it was announcing a constitutional rule.4] Indeed, the Court's ultimate conclusion was that the * unwarned confessions obtained in the four cases before the Court in Miranda "were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege."5] at 491. Additional support for our conclusion that Miranda is constitutionally based is found in the Miranda Court's invitation for legislative action to protect the constitutional right against coerced self-incrimination. After discussing the "compelling pressures" inherent in custodial police interrogation, the Miranda Court concluded that, "i]n order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." However, the Court emphasized that it could not foresee "the potential alternatives for protecting the privilege which might be devised by Congress or the States," and it accordingly opined that the Constitution would not preclude legislative solutions that differed from the prescribed Miranda warnings but which were "at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it."6] *441 The Court of Appeals also relied on the fact that we have, after our Miranda decision, made exceptions from its rule in cases such as New and See 689-691. But we have also broadened the application of the Miranda doctrine in cases such as U.S. 610 and These decisions illustrate the principle—not that Miranda is not a constitutional rule—but that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision. The Court of Appeals also noted that in we stated that "`t]he Miranda exclusionary rule serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself.' " (quoting ). Our decision in that case—refusing to apply the traditional "fruits" doctrine developed in Fourth Amendment cases—does not prove that Miranda is a nonconstitutional decision, but simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment. As an alternative argument for sustaining the Court of Appeals' decision, the court-invited amicus curiae7] contends that the section complies with the requirement that a legislative alternative to Miranda be equally as effective in preventing coerced confessions. See Brief for Paul G. Cassell *442 as Amicus Curiae 28-39. We agree with the amicus ` contention that there are more remedies available for abusive police conduct than there were at the time Miranda was decided, see, e. to hold that a suspect may bring a federal cause of action under the Due Process Clause for police misconduct during custodial interrogation). But we do not agree that these additional measures supplement 3501's protections sufficiently to meet the constitutional minimum. Miranda requires procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored. See, e. 384 U. S., As discussed above, 3501 explicitly eschews a requirement of preinterrogation warnings in favor of an approach that looks to the administration of such warnings as only one factor in determining the voluntariness of a suspect's confession. The additional remedies cited by amicus do not, in our view, render them, together with 3501, an adequate substitute for the warnings required by Miranda. The dissent argues that it is judicial overreaching for this Court to hold 3501 unconstitutional unless we hold that the Miranda warnings are required by the Constitution, in the sense that nothing else will suffice to satisfy constitutional requirements. Post, at 453-454, 465 (opinion of Scalia, J.). But we need not go further than Miranda to decide this case. In Miranda, the Court noted that reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking an involuntary custodial confession, 384 U. S, at 457, a risk that the Court found unacceptably great when the confession is offered in the case in chief to prove guilt. The Court therefore concluded that something more than the totality test was necessary. See ibid.; see also 490-491. As discussed above, 3501 reinstates the totality test as *443 sufficient. Section 3501 therefore cannot be sustained if Miranda is to remain the law. Whether or not we would agree with Miranda `s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. See, e. Rhode ("The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date"). While "`stare decisis is not an inexorable command,' " State Oil ), particularly when we are interpreting the Constitution, 521 U.S. 3, "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some `special justification.' " United (quoting in turn quoting 467 U.S. 3, ). We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See (stating that the fact that a rule has found "`wide acceptance in the legal culture' " is "adequate reason not to overrule" it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, see, e. we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned * statements may not be used as evidence in the prosecution's case in chief. The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his "rights," may nonetheless be excluded and a guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test which 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner. See, e. The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry. But as we said in 468 U.S. 4 "c]ases in which a defendant can make a colorable argument that a self-incriminating statement was `compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." at 433, n. In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.8] The judgment of the Court of Appeals is therefore Reversed.

Justice Scalia

dissenting

Dickerson v. United States

2000-06-26

https://www.courtlistener.com/opinion/118380/dickerson-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118380/

1999-081

Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored *445 results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Miranda v. Arizona, 384 U.S. 436 (1966). Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda (as of all cases): the rationale that gives it a permanent place in our jurisprudence. Marbury v. Madison, 1 Cranch 137 (1803), held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution of the United States. That was the basis on which Miranda was decided. One will search today's opinion in vain, however, for a statement (surely simple enough to make) that what 18 U.S. C. § 3501 prescribes—the use at trial of a voluntary confession, even when a Miranda warning or its equivalent has failed to be given—violates the Constitution. The reason the statement does not appear is not only (and perhaps not so much) that it would be absurd, inasmuch as § 3501 excludes from trial precisely what the Constitution excludes from trial, viz., compelled confessions; but also that Justices whose votes are needed to compose today's majority are on record as believing that a violation of Miranda is not a violation of the Constitution. See Davis v. United States, 512 U.S. 452, 457-458 (1994) (opinion of the Court, in which Kennedy, J., joined); Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (opinion of the Court, in which Kennedy, J., joined); Oregon v. Elstad, 470 U.S. 298 (1985) (opinion of the Court by O'Connor, J.); New York v. Quarles, 467 U.S. 649 (1984) (opinion of the Court by Rehnquist, J.). And so, to justify today's agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law. As the Court chooses to describe that principle, statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that "announced a constitutional rule," ante, at 437. As I shall discuss in some *446 detail, the only thing that can possibly mean in the context of this case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful "prophylactic" restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist. It takes only a small step to bring today's opinion out of the realm of power-judging and into the mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations that "Miranda is a constitutional decision," ante, at 438, that "Miranda is constitutionally based," ante, at 440, that Miranda has "constitutional underpinnings," ante, at 440, n. 5, and come out and say quite clearly: "We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States." It cannot say that, because a majority of the Court does not believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress. I Early in this Nation's history, this Court established the sound proposition that constitutional government in a system of separated powers requires judges to regard as inoperative any legislative Act, even of Congress itself, that is "repugnant to the Constitution." "So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case." Marbury, supra, at 178. The power we recognized in Marbury will thus permit us, indeed require us, to "disregar[d]" § 3501, a duly enacted *447 statute governing the admissibility of evidence in the federal courts, only if it "be in opposition to the constitution"—here, assertedly, the dictates of the Fifth Amendment. It was once possible to characterize the so-called Miranda rule as resting (however implausibly) upon the proposition that what the statute here before us permits—the admission at trial of un-Mirandized confessions—violates the Constitution. That is the fairest reading of the Miranda case itself. The Court began by announcing that the Fifth Amendment privilege against self-incrimination applied in the context of extrajudicial custodial interrogation, see 384 U.S., at 460— 467—itself a doubtful proposition as a matter both of history and precedent, see id., at 510-511 (Harlan, J., dissenting) (characterizing the Court's conclusion that the Fifth Amendment privilege, rather than the Due Process Clause, governed station house confessions as a "trompe l'oeil "). Having extended the privilege into the confines of the station house, the Court liberally sprinkled throughout its sprawling 60-page opinion suggestions that, because of the compulsion inherent in custodial interrogation, the privilege was violated by any statement thus obtained that did not conform to the rules set forth in Miranda, or some functional equivalent. See id., at 458 ("Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice" (emphases added)); id., at 461 ("An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak"); id., at 467 ("We have concluded that without proper safeguards the process of in-custody interrogation . . . contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely"); id., at 457, n. 26 (noting *448 the "absurdity of denying that a confession obtained under these circumstances is compelled"). The dissenters, for their part, also understood Miranda `s holding to be based on the "premise . . . that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings." Id., at 512 (Harlan, J., dissenting). See also id., at 535 (White, J., dissenting) ("[I]t has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will"). And at least one case decided shortly after Miranda explicitly confirmed the view. See Orozco v. Texas, 394 U.S. 324, 326 (1969) ("[T]he use of these admissions obtained in the absence of the required warnings was a flat violation of the Self-Incrimination Clause of the Fifth Amendment as construed in Miranda "). So understood, Miranda was objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise that, absent the warnings and an effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. See Crooker v. California, 357 U.S. 433 (1958) (confession not involuntary despite denial of access to counsel); Cicenia v. Lagay, 357 U.S. 504 (1958) (same); Powers v. United States, 223 U.S. 303 (1912) (lack of warnings and counsel did not render statement before United States Commissioner involuntary); Wilson v. United States, 162 U.S. 613 (1896) (same). Moreover, history and precedent aside, the decision in Miranda, if read as an explication of what the Constitution requires, is preposterous. There is, for example, simply no basis in reason for concluding that a response to the very first question asked, by a suspect who already knows all of the rights described *449 in the Miranda warning, is anything other than a volitional act. See Miranda, supra, at 533-534 (White, J., dissenting). And even if one assumes that the elimination of compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain silent, it cannot conceivably require the right to have counsel present. There is a world of difference, which the Court recognized under the traditional voluntariness test but ignored in Miranda, between compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own accord. Only the latter (which is not required by the Constitution) could explain the Court's inclusion of a right to counsel and the requirement that it, too, be knowingly and intelligently waived. Counsel's presence is not required to tell the suspect that he need not speak; the interrogators can do that. The only good reason for having counsel there is that he can be counted on to advise the suspect that he should not speak. See Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring in result in part and dissenting in part) ("[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances"). Preventing foolish (rather than compelled) confessions is likewise the only conceivable basis for the rules (suggested in Miranda, see 384 U.S., at 444-445, 473-474), that courts must exclude any confession elicited by questioning conducted, without interruption, after the suspect has indicated a desire to stand on his right to remain silent, see Michigan v. Mosley, 423 U.S. 96, 105-106 (1975), or initiated by police after the suspect has expressed a desire to have counsel present, see Edwards v. Arizona, 451 U.S. 477, 484— 485 (1981). Nonthreatening attempts to persuade the suspect to reconsider that initial decision are not, without more, enough to render a change of heart the product of anything other than the suspect's free will. Thus, what is most remarkable about the Miranda decision—and what *450 made it unacceptable as a matter of straightforward constitutional interpretation in the Marbury tradition—is its palpable hostility toward the act of confession per se, rather than toward what the Constitution abhors, compelled confession. See United States v. Washington, 431 U.S. 181, 187 (1977) ("[F]ar from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable"). The Constitution is not, unlike the Miranda majority, offended by a criminal's commendable qualm of conscience or fortunate fit of stupidity. Cf. Minnick v. Mississippi, 498 U.S. 146, 166-167 (1990) (Scalia, J., dissenting). For these reasons, and others more than adequately developed in the Miranda dissents and in the subsequent works of the decision's many critics, any conclusion that a violation of the Miranda rules necessarily amounts to a violation of the privilege against compelled self-incrimination can claim no support in history, precedent, or common sense, and as a result would at least presumptively be worth reconsidering even at this late date. But that is unnecessary, since the Court has (thankfully) long since abandoned the notion that failure to comply with Miranda `s rules is itself a violation of the Constitution. II As the Court today acknowledges, since Miranda we have explicitly, and repeatedly, interpreted that decision as having announced, not the circumstances in which custodial interrogation runs afoul of the Fifth or Fourteenth Amendment, but rather only "prophylactic" rules that go beyond the right against compelled self-incrimination. Of course the seeds of this "prophylactic" interpretation of Miranda were present in the decision itself. See Miranda, 384 U. S., at 439 (discussing the "necessity for procedures which assure that the [suspect] is accorded his privilege"); id., at 447 ("[u]nless a proper limitation upon custodial interrogation is achieved— such as these decisions will advance—there can be no assurance *451 that practices of this nature will be eradicated"); id., at 457 ("[i]n these cases, we might not find the defendants' statements to have been involuntary in traditional terms"); ibid. (noting "concern for adequate safeguards to protect precious Fifth Amendment rights" and the "potentiality for compulsion" in Ernesto Miranda's interrogation). In subsequent cases, the seeds have sprouted and borne fruit: The Court has squarely concluded that it is possible—indeed not uncommon—for the police to violate Miranda without also violating the Constitution. Michigan v. Tucker, 417 U.S. 433 (1974), an opinion for the Court written by then-Justice Rehnquist, rejected the true-to-Marbury, failure-to-warn-as-constitutional-violation interpretation of Miranda. It held that exclusion of the "fruits" of a Miranda violation—the statement of a witness whose identity the defendant had revealed while in custody—was not required. The opinion explained that the question whether the "police conduct complained of directly infringed upon respondent's right against compulsory selfincrimination" was a "separate question" from "whether it instead violated only the prophylactic rules developed to protect that right." 417 U.S., at 439. The "procedural safeguards" adopted in Miranda, the Court said, "were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected," and to "provide practical reinforcement for the right," 417 U.S., at 444. Comparing the particular facts of the custodial interrogation with the "historical circumstances underlying the privilege," ibid., the Court concluded, unequivocally, that the defendant's statement could not be termed "involuntary as that term has been defined in the decisions of this Court," id., at 445, and thus that there had been no constitutional violation, notwithstanding the clear violation of the "procedural rules later established in Miranda, " ibid. Lest there be any confusion on the point, the Court reiterated that the "police conduct at *452 issue here did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege." Id., at 446. It is clear from our cases, of course, that if the statement in Tucker had been obtained in violation of the Fifth Amendment, the statement and its fruits would have been excluded. See Nix v. Williams, 467 U.S. 431, 442 (1984). The next year, in Oregon v. Hass, 420 U.S. 714 (1975), the Court held that a defendant's statement taken in violation of Miranda that was nonetheless voluntary could be used at trial for impeachment purposes. This holding turned upon the recognition that violation of Miranda is not unconstitutional compulsion, since statements obtained in actual violation of the privilege against compelled self-incrimination, "as opposed to . . . taken in violation of Miranda, " quite simply "may not be put to any testimonial use whatever against [the defendant] in a criminal trial," including as impeachment evidence. New Jersey v. Portash, 440 U.S. 450, 459 (1979). See also Mincey v. Arizona, 437 U.S. 385, 397— 398 (1978) (holding that while statements obtained in violation of Miranda may be used for impeachment if otherwise trustworthy, the Constitution prohibits "any criminal trial use against a defendant of his involuntary statement"). Nearly a decade later, in New York v. Quarles, 467 U.S. 649 (1984), the Court relied upon the fact that "[t]he prophylactic Miranda warnings . . . are `not themselves rights protected by the Constitution,' " id., at 654 (quoting Tucker, supra, at 444), to create a "public safety" exception. In that case, police apprehended, after a chase in a grocery store, a rape suspect known to be carrying a gun. After handcuffing and searching him (and finding no gun)—but before reading him his Miranda warnings—the police demanded to know where the gun was. The defendant nodded in the direction of some empty cartons and responded that "the gun is over there." The Court held that both the unwarned *453 statement—"the gun is over there"—and the recovered weapon were admissible in the prosecution's case in chief under a "public safety exception" to the "prophylactic rules enunciated in Miranda. " 467 U.S., at 653. It explicitly acknowledged that if the Miranda warnings were an imperative of the Fifth Amendment itself, such an exigency exception would be impossible, since the Fifth Amendment's bar on compelled self-incrimination is absolute, and its "`strictures, unlike the Fourth's are not removed by showing reasonableness,' " 467 U.S., at 653, n. 3. (For the latter reason, the Court found it necessary to note that respondent did not "claim that [his] statements were actually compelled by police conduct which overcame his will to resist," id., at 654.) The next year, the Court again declined to apply the "fruit of the poisonous tree" doctrine to a Miranda violation, this time allowing the admission of a suspect's properly warned statement even though it had been preceded (and, arguably, induced) by an earlier inculpatory statement taken in violation of Miranda. Oregon v. Elstad, 470 U.S. 298 (1985). As in Tucker, the Court distinguished the case from those holding that a confession obtained as a result of an unconstitutional search is inadmissible, on the ground that the violation of Miranda does not involve an "actual infringement of the suspect's constitutional rights," 470 U.S., at 308. Miranda, the Court explained, "sweeps more broadly than the Fifth Amendment itself," and "Miranda `s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm." 470 U.S., at 306-307. "[E]rrors [that] are made by law enforcement officers in administering the prophylactic Miranda procedures . . . should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself." Id., at 308-309. In light of these cases, and our statements to the same effect in others, see, e. g., Davis v. United States, 512 U. S., at 457-458; Withrow v. Williams, 507 U.S. 680, 690-691 (1993); *454 Eagan, 492 U. S., at 203, it is simply no longer possible for the Court to conclude, even if it wanted to, that a violation of Miranda' s rules is a violation of the Constitution. But as I explained at the outset, that is what is required before the Court may disregard a law of Congress governing the admissibility of evidence in federal court. The Court today insists that the decision in Miranda is a "constitutional" one, ante, at 432, 438; that it has "constitutional underpinnings," ante, at 440, n. 5; a "constitutional basis" and a "constitutional origin," ante, at 439, n. 3; that it was "constitutionally based," ante, at 440; and that it announced a "constitutional rule," ante, at 437, 439, 441, 444. It is fine to play these word games; but what makes a decision "constitutional" in the only sense relevant here—in the sense that renders it impervious to supersession by congressional legislation such as § 3501— is the determination that the Constitution requires the result that the decision announces and the statute ignores. By disregarding congressional action that concededly does not violate the Constitution, the Court flagrantly offends fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the representatives of the people. The Court seeks to avoid this conclusion in two ways: First, by misdescribing these post-Miranda cases as mere dicta. The Court concedes only "that there is language in some of our opinions that supports the view" that Miranda `s protections are not "constitutionally required." Ante, at 438. It is not a matter of language; it is a matter of holdings. The proposition that failure to comply with Miranda `s rules does not establish a constitutional violation was central to the holdings of Tucker, Hass, Quarles, and Elstad. The second way the Court seeks to avoid the impact of these cases is simply to disclaim responsibility for reasoned decisionmaking. It says: "These decisions illustrate the principle—not that Mi- randa is not a constitutional rule—but that no constitutional rule is immutable. No court laying down a general *455 rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision." Ante, at 441. The issue, however, is not whether court rules are "mutable"; they assuredly are. It is not whether, in the light of "various circumstances," they can be "modifi[ed]"; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy. And if confessions procured in violation of Miranda are confessions "compelled" in violation of the Constitution, the post-Miranda decisions I have discussed do not make sense. The only reasoned basis for their outcome was that a violation of Miranda is not a violation of the Constitution. If, for example, as the Court acknowledges was the holding of Elstad, "the traditional `fruits' doctrine developed in Fourth Amendment cases" (that the fruits of evidence obtained unconstitutionally must be excluded from trial) does not apply to the fruits of Miranda violations, ante, at 441; and if the reason for the difference is not that Miranda violations are not constitutional violations (which is plainly and flatly what Elstad said); then the Court must come up with some other explanation for the difference. (That will take quite a bit of doing, by the way, since it is not clear on the face of the Fourth Amendment that evidence obtained in violation of that guarantee must be excluded from trial, whereas it is clear on the face of the Fifth Amendment that unconstitutionally compelled confessions cannot be used.) To say simply that "unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment," ante, at 441, is true but supremely unhelpful. *456 Finally, the Court asserts that Miranda must be a "constitutional decision" announcing a "constitutional rule," and thus immune to congressional modification, because we have since its inception applied it to the States. If this argument is meant as an invocation of stare decisis, it fails because, though it is true that our cases applying Miranda against the States must be reconsidered if Miranda is not required by the Constitution, it is likewise true that our cases (discussed above) based on the principle that Miranda is not required by the Constitution will have to be reconsidered if it is. So the stare decisis argument is a wash. If, on the other hand, the argument is meant as an appeal to logic rather than stare decisis, it is a classic example of begging the question: Congress's attempt to set aside Miranda, since it represents an assertion that violation of Miranda is not a violation of the Constitution, also represents an assertion that the Court has no power to impose Miranda on the States. To answer this assertion—not by showing why violation of Miranda is a violation of the Constitution—but by asserting that Miranda does apply against the States, is to assume precisely the point at issue. In my view, our continued application of the Miranda code to the States despite our consistent statements that running afoul of its dictates does not necessarily—or even usually—result in an actual constitutional violation, represents not the source of Miranda `s salvation but rather evidence of its ultimate illegitimacy. See generally J. Grano, Confessions, Truth, and the Law 173-198 (1993); Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100 (1985). As Justice Stevens has elsewhere explained: "This Court's power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution. . . . If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has *457 evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power." Elstad, 470 U. S., at 370 (dissenting opinion). Quite so. III There was available to the Court a means of reconciling the established proposition that a violation of Miranda does not itself offend the Fifth Amendment with the Court's assertion of a right to ignore the present statute. That means of reconciliation was argued strenuously by both petitioner and the United States, who were evidently more concerned than the Court is with maintaining the coherence of our jurisprudence. It is not mentioned in the Court's opinion because, I assume, a majority of the Justices intent on reversing believes that incoherence is the lesser evil. They may be right. Petitioner and the United States contend that there is nothing at all exceptional, much less unconstitutional, about the Court's adopting prophylactic rules to buttress constitutional rights, and enforcing them against Congress and the States. Indeed, the United States argues that "[p]rophylactic rules are now and have been for many years a feature of this Court's constitutional adjudication." Brief for United States 47. That statement is not wholly inaccurate, if by "many years" one means since the mid-1960's. However, in their zeal to validate what is in my view a lawless practice, the United States and petitioner greatly overstate the frequency with which we have engaged in it. For instance, petitioner cites several cases in which the Court quite simply exercised its traditional judicial power to define the scope of constitutional protections and, relatedly, the circumstances in which they are violated. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436-437 (1982) (holding that a permanent physical occupation constitutes a per se taking); Maine v. Moulton, 474 U.S. 159, 176 (1985) (holding that the Sixth Amendment right to the assistance *458 of counsel is actually "violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent"). Similarly unsupportive of the supposed practice is Bruton v. United States, 391 U.S. 123 (1968), where we concluded that the Confrontation Clause of the Sixth Amendment forbids the admission of a nontestifying codefendant's facially incriminating confession in a joint trial, even where the jury has been given a limiting instruction. That decision was based, not upon the theory that this was desirable protection "beyond" what the Confrontation Clause technically required; but rather upon the self-evident proposition that the inability to cross-examine an available witness whose damaging out-of-court testimony is introduced violates the Confrontation Clause, combined with the conclusion that in these circumstances a mere jury instruction can never be relied upon to prevent the testimony from being damaging, see Richardson v. Marsh, 481 U.S. 200, 207-208 (1987). The United States also relies on our cases involving the question whether a State's procedure for appointed counsel's withdrawal of representation on appeal satisfies the State's constitutional obligation to "`affor[d] adequate and effective appellate review to indigent defendants.' " Smith v. Robbins, 528 U.S. 259, 276 (2000) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956)). In Anders v. California, 386 U.S. 738 (1967), we concluded that California's procedure governing withdrawal fell short of the constitutional minimum, and we outlined a procedure that would meet that standard. But as we made clear earlier this Term in Smith, which upheld a procedure different from the one Anders suggested, the benchmark of constitutionality is the constitutional requirement of adequate representation, and not some excrescence upon that requirement decreed, for safety's sake, by this Court. *459 In a footnote, the United States directs our attention to certain overprotective First Amendment rules that we have adopted to ensure "breathing space" for expression. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 342 (1974) (recognizing that in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), we "extended a measure of strategic protection to defamatory falsehood" of public officials); Freedman v. Maryland, 380 U.S. 51, 58 (1965) (setting forth "procedural safeguards designed to obviate the dangers of a censorship system" with respect to motion picture obscenity). In these cases, and others involving the First Amendment, the Court has acknowledged that in order to guarantee that protected speech is not "chilled" and thus forgone, it is in some instances necessary to incorporate in our substantive rules a "measure of strategic protection." But that is because the Court has viewed the importation of "chill" as itself a violation of the First Amendment—not because the Court thought it could go beyond what the First Amendment demanded in order to provide some prophylaxis. Petitioner and the United States are right on target, however, in characterizing the Court's actions in a case decided within a few years of Miranda, North Carolina v. Pearce, 395 U.S. 711 (1969). There, the Court concluded that due process would be offended were a judge vindictively to resentence with added severity a defendant who had successfully appealed his original conviction. Rather than simply announce that vindictive sentencing violates the Due Process Clause, the Court went on to hold that "[i]n order to assure the absence of such a [vindictive] motivation, . . . the reasons for [imposing the increased sentence] must affirmatively appear" and must "be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id., at 726. The Court later explicitly acknowledged Pearce `s prophylactic character, see Michigan v. Payne, 412 U.S. 47, 53 (1973). It is true, therefore, that the *460 case exhibits the same fundamental flaw as does Miranda when deprived (as it has been) of its original (implausible) pretension to announcement of what the Constitution itself required. That is, although the Due Process Clause may well prohibit punishment based on judicial vindictiveness, the Constitution by no means vests in the courts "any general power to prescribe particular devices `in order to assure the absence of such a motivation,' " 395 U.S., at 741 (Black, J., dissenting). Justice Black surely had the right idea when he derided the Court's requirement as "pure legislation if there ever was legislation," ibid., although in truth Pearce `s rule pales as a legislative achievement when compared to the detailed code promulgated in Miranda.[1] The foregoing demonstrates that, petitioner's and the United States' suggestions to the contrary notwithstanding, what the Court did in Miranda (assuming, as later cases hold, that Miranda went beyond what the Constitution actually requires) is in fact extraordinary. That the Court has, on rare and recent occasion, repeated the mistake does not transform error into truth, but illustrates the potential for future mischief that the error entails. Where the Constitution has wished to lodge in one of the branches of the Federal Government some limited power to supplement its guarantees, it has said so. See Amdt. 14, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article"). The power with which the Court would endow itself under a "prophylactic" justification for Miranda goes far beyond what it has permitted Congress to do under authority of that text. Whereas we have insisted *461 that congressional action under § 5 of the Fourteenth Amendment must be "congruent" with, and "proportional" to, a constitutional violation, see City of Boerne v. Flores, 521 U.S. 507, 520 (1997), the Miranda nontextual power to embellish confers authority to prescribe preventive measures against not only constitutionally prohibited compelled confessions, but also (as discussed earlier) foolhardy ones. I applaud, therefore, the refusal of the Justices in the majority to enunciate this boundless doctrine of judicial empowerment as a means of rendering today's decision rational. In nonetheless joining the Court's judgment, however, they overlook two truisms: that actions speak louder than silence, and that (in judge-made law at least) logic will out. Since there is in fact no other principle that can reconcile today's judgment with the post-Miranda cases that the Court refuses to abandon, what today's decision will stand for, whether the Justices can bring themselves to say it or not, is the power of the Supreme Court to write a prophylactic, extra constitutional Constitution, binding on Congress and the States. IV Thus, while I agree with the Court that § 3501 cannot be upheld without also concluding that Miranda represents an illegitimate exercise of our authority to review state-court judgments, I do not share the Court's hesitation in reaching that conclusion. For while the Court is also correct that the doctrine of stare decisis demands some "special justification" for a departure from longstanding precedent—even precedent of the constitutional variety—that criterion is more than met here. To repeat Justice Stevens' cogent observation, it is "[o]bviou[s]" that "the Court's power to reverse Miranda's conviction rested entirely on the determination that a violation of the Federal Constitution had occurred." Elstad, 470 U. S., at 367, n. 9 (dissenting opinion) (emphasis added). Despite the Court's Orwellian assertion to the contrary, it is undeniable that later cases (discussed *462 above) have "undermined [Miranda `s] doctrinal underpinnings," ante, at 443, denying constitutional violation and thus stripping the holding of its only constitutionally legitimate support. Miranda `s critics and supporters alike have long made this point. See Office of Legal Policy, U. S. Dept. of Justice, Report to Attorney General on Law of Pre-Trial Interrogation 97 (Feb. 12, 1986) ("The current Court has repudiated the premises on which Miranda was based, but has drawn back from recognizing the full implications of its decisions"); id., at 78 ("Michigan v. Tucker accordingly repudiated the doctrinal basis of the Miranda decision"); Sonenshein, Miranda and the Burger Court: Trends and Countertrends, 13 Loyola U. Chi. L. J. 405, 407-408 (1982) ("Although the Burger Court has not overruled Miranda, the Court has consistently undermined the rationales, assumptions, and values which gave Miranda life"); id., at 425-426 ("Seemingly, the Court [in Michigan v. Tucker ] utterly destroyed both Miranda `s rationale and its holding"); Stone, The Miranda Doctrine in the Burger Court, 1977 S. Ct. Rev. 99, 118 ("Mr. Justice Rehnquist's conclusion that there is a violation of the Self-Incrimination Clause only if a confession is involuntary . . . is an outright rejection of the core premises of Miranda "). The Court cites Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989), as accurately reflecting our standard for overruling, see ante, at 443—which I am pleased to accept, even though Patterson was speaking of overruling statutory cases and the standard for constitutional decisions is somewhat more lenient. What is set forth there reads as though it was written precisely with the current status of Miranda in mind: "In cases where statutory precedents have been overruled, the primary reason for the Court's shift in position has been the intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress. Where such changes have *463 removed or weakened the conceptual underpinnings from the prior decision, . . . or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies, . . . the Court has not hesitated to overrule an earlier decision." 491 U.S., at 173. Neither am I persuaded by the argument for retaining Miranda that touts its supposed workability as compared with the totality-of-the-circumstances test it purported to replace. Miranda `s proponents cite ad nauseam the fact that the Court was called upon to make difficult and subtle distinctions in applying the "voluntariness" test in some 30-odd due process "coerced confessions" cases in the 30 years between Brown v. Mississippi, 297 U.S. 278 (1936), and Miranda. It is not immediately apparent, however, that the judicial burden has been eased by the "bright-line" rules adopted in Miranda. In fact, in the 34 years since Miranda was decided, this Court has been called upon to decide nearly 60 cases involving a host of Miranda issues, most of them predicted with remarkable prescience by Justice White in his Miranda dissent. 384 U.S., at 545. Moreover, it is not clear why the Court thinks that the "totality-of-the-circumstances test . . . is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner." Ante, at 444. Indeed, I find myself persuaded by Justice O'Connor's rejection of this same argument in her opinion in Williams, 507 U. S., at 711-712 (O'Connor, J., joined by Rehnquist, C. J., concurring in part and dissenting in part): "Miranda, for all its alleged brightness, is not without its difficulties; and voluntariness is not without its strengths. . . . ". . . Miranda creates as many close questions as it resolves. The task of determining whether a defendant is in `custody' has proved to be `a slippery one.' And the supposedly `bright' lines that separate interrogation *464 from spontaneous declaration, the exercise of a right from waiver, and the adequate warning from the inadequate, likewise have turned out to be rather dim and ill defined. . . . "The totality-of-the-circumstances approach, on the other hand, permits each fact to be taken into account without resort to formal and dispositive labels. By dispensing with the difficulty of producing a yes-or-no answer to questions that are often better answered in shades and degrees, the voluntariness inquiry often can make judicial decisionmaking easier rather than more onerous. " (Emphasis added; citations omitted.) But even were I to agree that the old totality-of-thecircumstances test was more cumbersome, it is simply not true that Miranda has banished it from the law and replaced it with a new test. Under the current regime, which the Court today retains in its entirety, courts are frequently called upon to undertake both inquiries. That is because, as explained earlier, voluntariness remains the constitutional standard, and as such continues to govern the admissibility for impeachment purposes of statements taken in violation of Miranda, the admissibility of the "fruits" of such statements, and the admissibility of statements challenged as unconstitutionally obtained despite the interrogator's compliance with Miranda, see, e. g., Colorado v. Connelly, 479 U.S. 157 (1986). Finally, I am not convinced by petitioner's argument that Miranda should be preserved because the decision occupies a special place in the "public's consciousness." Brief for Petitioner 44. As far as I am aware, the public is not under the illusion that we are infallible. I see little harm in admitting that we made a mistake in taking away from the people the ability to decide for themselves what protections (beyond those required by the Constitution) are reasonably affordable in the criminal investigatory process. And I see much to be gained by reaffirming for the people the wonderful reality *465 that they govern themselves—which means that "[t]he powers not delegated to the United States by the Constitution" that the people adopted, "nor prohibited . . . to the States" by that Constitution, "are reserved to the States respectively, or to the people," U. S. Const., Amdt. 10.[2] * * * Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today's decision does not pretend that it is—and yet still asserts the right to impose it against the will of the people's representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision—especially a celebrated decision—that has come to stand for the proposition that the Supreme Court has power to impose extra constitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people. I dissent from today's decision, and, until § 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary.

Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored *445 results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of but a radical revision of the most significant element of (as of all cases): the rationale that gives it a permanent place in our jurisprudence. held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution of the United That was the basis on which was decided. One will search today's opinion in vain, however, for a statement (surely simple enough to make) that what 18 U.S. C. 3501 prescribes—the use at trial of a voluntary confession, even when a warning or its equivalent has failed to be given—violates the Constitution. The reason the statement does not appear is not only (and perhaps not so much) that it would be absurd, inasmuch as 3501 excludes from trial precisely what the Constitution excludes from trial, viz., compelled confessions; but also that Justices whose votes are needed to compose today's majority are on record as believing that a violation of is not a violation of the Constitution. See ; ; ; New And so, to justify today's agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law. As the Court chooses to describe that principle, statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that "announced a constitutional rule," ante, at 437. As I shall discuss in some *446 detail, the only thing that can possibly mean in the context of this case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful "prophylactic" restrictions upon Congress and the That is an immense and frightening antidemocratic power, and it does not exist. It takes only a small step to bring today's opinion out of the realm of power-judging and into the mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations that " is a constitutional decision," ante, at 438, that " is constitutionally based," ante, at 440, that has "constitutional underpinnings," ante, at 440, n. 5, and come out and say quite clearly: "We reaffirm today that custodial interrogation that is not preceded by warnings or their equivalent violates the Constitution of the United" It cannot say that, because a majority of the Court does not believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress. I Early in this Nation's history, this Court established the sound proposition that constitutional government in a system of separated powers requires judges to regard as inoperative any legislative Act, even of Congress itself, that is "repugnant to the Constitution." "So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case." The power we recognized in will thus permit us, indeed require us, to "disregar[d]" 3501, a duly enacted *447 statute governing the admissibility of evidence in the federal courts, only if it "be in opposition to the constitution"—here, assertedly, the dictates of the Fifth Amendment. It was once possible to characterize the so-called rule as resting (however implausibly) upon the proposition that what the statute here before us permits—the admission at trial of un-Mirandized confessions—violates the Constitution. That is the fairest reading of the case itself. The Court began by announcing that the Fifth Amendment privilege against self-incrimination applied in the context of extrajudicial custodial interrogation, see — 467—itself a doubtful proposition as a matter both of history and precedent, see (characterizing the Court's conclusion that the Fifth Amendment privilege, rather than the Due Process Clause, governed station house confessions as a "trompe l'oeil "). Having extended the privilege into the confines of the station house, the Court liberally sprinkled throughout its sprawling 60-page opinion suggestions that, because of the compulsion inherent in custodial interrogation, the privilege was violated by any statement thus obtained that did not conform to the rules set forth in or some functional equivalent. See ; ; ; The dissenters, for their part, also understood `s holding to be based on the "premise that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings." See also ("[I]t has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will"). And at least one case decided shortly after explicitly confirmed the view. See So understood, was objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise that, absent the warnings and an effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. See ; ; ; Moreover, history and precedent aside, the decision in if read as an explication of what the Constitution requires, is preposterous. There is, for example, simply no basis in reason for concluding that a response to the very first question asked, by a suspect who already knows all of the rights described *449 in the warning, is anything other than a volitional act. See And even if one assumes that the elimination of compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain silent, it cannot conceivably require the right to have counsel present. There is a world of difference, which the Court recognized under the traditional voluntariness test but ignored in between compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own accord. Only the latter (which is not required by the Constitution) could explain the Court's inclusion of a right to counsel and the requirement that it, too, be knowingly and intelligently waived. Counsel's presence is not required to tell the suspect that he need not speak; the interrogators can do that. The only good reason for having counsel there is that he can be counted on to advise the suspect that he should not speak. See ("[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances"). Preventing foolish (rather than compelled) confessions is likewise the only conceivable basis for the rules (suggested in see -445, 473-474), that courts must exclude any confession elicited by questioning conducted, without interruption, after the suspect has indicated a desire to stand on his right to remain silent, see or initiated by police after the suspect has expressed a desire to have counsel present, see Nonthreatening attempts to persuade the suspect to reconsider that initial decision are not, without more, enough to render a change of heart the product of anything other than the suspect's free will. Thus, what is most remarkable about the decision—and what *450 made it unacceptable as a matter of straightforward constitutional interpretation in the tradition—is its palpable hostility toward the act of confession per se, rather than toward what the Constitution abhors, compelled confession. See United The Constitution is not, unlike the majority, offended by a criminal's commendable qualm of conscience or fortunate fit of stupidity. Cf. For these reasons, and others more than adequately developed in the dissents and in the subsequent works of the decision's many critics, any conclusion that a violation of the rules necessarily amounts to a violation of the privilege against compelled self-incrimination can claim no support in history, precedent, or common sense, and as a result would at least presumptively be worth reconsidering even at this late date. But that is unnecessary, since the Court has (thankfully) long since abandoned the notion that failure to comply with `s rules is itself a violation of the Constitution. II As the Court today acknowledges, since we have explicitly, and repeatedly, interpreted that decision as having announced, not the circumstances in which custodial interrogation runs afoul of the Fifth or Fourteenth Amendment, but rather only "prophylactic" rules that go beyond the right against compelled self-incrimination. Of course the seeds of this "prophylactic" interpretation of were present in the decision itself. See ; ; ; (noting "concern for adequate safeguards to protect precious Fifth Amendment rights" and the "potentiality for compulsion" in Ernesto 's interrogation). In subsequent cases, the seeds have sprouted and borne fruit: The Court has squarely concluded that it is possible—indeed not uncommon—for the police to violate without also violating the Constitution. an opinion for the Court written by then-Justice Rehnquist, rejected the true-to-, failure-to-warn-as-constitutional-violation interpretation of It held that exclusion of the "fruits" of a violation—the statement of a witness whose identity the defendant had revealed while in custody—was not required. The opinion explained that the question whether the "police conduct complained of directly infringed upon respondent's right against compulsory selfincrimination" was a "separate question" from "whether it instead violated only the prophylactic rules developed to protect that right." The "procedural safeguards" adopted in the Court said, "were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected," and to "provide practical reinforcement for the right," Comparing the particular facts of the custodial interrogation with the "historical circumstances underlying the privilege," ib the Court concluded, unequivocally, that the defendant's statement could not be termed "involuntary as that term has been defined in the decisions of this Court," and thus that there had been no constitutional violation, notwithstanding the clear violation of the "procedural rules later established in " Lest there be any confusion on the point, the Court reiterated that the "police conduct at *452 issue here did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in to safeguard that privilege." It is clear from our cases, of course, that if the statement in had been obtained in violation of the Fifth Amendment, the statement and its fruits would have been excluded. See The next year, in the Court held that a defendant's statement taken in violation of that was nonetheless voluntary could be used at trial for impeachment purposes. This holding turned upon the recognition that violation of is not unconstitutional compulsion, since statements obtained in actual violation of the privilege against compelled self-incrimination, "as opposed to taken in violation of " quite simply "may not be put to any testimonial use whatever against [the defendant] in a criminal trial," including as impeachment evidence. New 4 See also (holding that while statements obtained in violation of may be used for impeachment if otherwise trustworthy, the Constitution prohibits "any criminal trial use against a defendant of his involuntary statement"). Nearly a decade later, in New the Court relied upon the fact that "[t]he prophylactic warnings are `not themselves rights protected by the Constitution,' " (quoting ), to create a "public safety" exception. In that case, police apprehended, after a chase in a grocery store, a rape suspect known to be carrying a gun. After handcuffing and searching him (and finding no gun)—but before reading him his warnings—the police demanded to know where the gun was. The defendant nodded in the direction of some empty cartons and responded that "the gun is over there." The Court held that both the unwarned *4 statement—"the gun is over there"—and the recovered weapon were admissible in the prosecution's case in chief under a "public safety exception" to the "prophylactic rules enunciated in " It explicitly acknowledged that if the warnings were an imperative of the Fifth Amendment itself, such an exigency exception would be impossible, since the Fifth Amendment's bar on compelled self-incrimination is absolute, and its "`strictures, unlike the Fourth's are not removed by showing reasonableness,' " n. 3. (For the latter reason, the Court found it necessary to note that respondent did not "claim that [his] statements were actually compelled by police conduct which overcame his will to resist,") The next year, the Court again declined to apply the "fruit of the poisonous tree" doctrine to a violation, this time allowing the admission of a suspect's properly warned statement even though it had been preceded (and, arguably, induced) by an earlier inculpatory statement taken in violation of As in the Court distinguished the case from those holding that a confession obtained as a result of an unconstitutional search is inadmissible, on the ground that the violation of does not involve an "actual infringement of the suspect's constitutional rights," the Court explained, "sweeps more broadly than the Fifth Amendment itself," and " `s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm." -307. "[E]rrors [that] are made by law enforcement officers in administering the prophylactic procedures should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself." In light of these cases, and our statements to the same effect in others, see, e. g., 512 U. S., at ; ; *454 492 U. S., at it is simply no longer possible for the Court to conclude, even if it wanted to, that a violation of ' s rules is a violation of the Constitution. But as I explained at the outset, that is what is required before the Court may disregard a law of Congress governing the admissibility of evidence in federal court. The Court today insists that the decision in is a "constitutional" one, ante, at 432, 438; that it has "constitutional underpinnings," ante, at 440, n. 5; a "constitutional basis" and a "constitutional origin," ante, at 439, n. 3; that it was "constitutionally based," ante, at 440; and that it announced a "constitutional rule," ante, at 437, 439, 441, 444. It is fine to play these word games; but what makes a decision "constitutional" in the only sense relevant here—in the sense that renders it impervious to supersession by congressional legislation such as 3501— is the determination that the Constitution requires the result that the decision announces and the statute ignores. By disregarding congressional action that concededly does not violate the Constitution, the Court flagrantly offends fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the representatives of the people. The Court seeks to avoid this conclusion in two ways: First, by misdescribing these post- cases as mere dicta. The Court concedes only "that there is language in some of our opinions that supports the view" that `s protections are not "constitutionally required." Ante, at 438. It is not a matter of language; it is a matter of holdings. The proposition that failure to comply with `s rules does not establish a constitutional violation was central to the holdings of Hass, Quarles, and Elstad. The second way the Court seeks to avoid the impact of these cases is simply to disclaim responsibility for reasoned decisionmaking. It says: "These decisions illustrate the principle—not that Mi- randa is not a constitutional rule—but that no constitutional rule is immutable. No court laying down a general *455 rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision." Ante, at 441. The issue, however, is not whether court rules are "mutable"; they assuredly are. It is not whether, in the light of "various circumstances," they can be "modifi[ed]"; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy. And if confessions procured in violation of are confessions "compelled" in violation of the Constitution, the post- decisions I have discussed do not make sense. The only reasoned basis for their outcome was that a violation of is not a violation of the Constitution. If, for example, as the Court acknowledges was the holding of Elstad, "the traditional `fruits' doctrine developed in Fourth Amendment cases" (that the fruits of evidence obtained unconstitutionally must be excluded from trial) does not apply to the fruits of violations, ante, at 441; and if the reason for the difference is not that violations are not constitutional violations (which is plainly and flatly what Elstad said); then the Court must come up with some other explanation for the difference. (That will take quite a bit of doing, by the way, since it is not clear on the face of the Fourth Amendment that evidence obtained in violation of that guarantee must be excluded from trial, whereas it is clear on the face of the Fifth Amendment that unconstitutionally compelled confessions cannot be used.) To say simply that "unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment," ante, at 441, is true but supremely unhelpful. *456 Finally, the Court asserts that must be a "constitutional decision" announcing a "constitutional rule," and thus immune to congressional modification, because we have since its inception applied it to the If this argument is meant as an invocation of stare decisis, it fails because, though it is true that our cases applying against the must be reconsidered if is not required by the Constitution, it is likewise true that our cases (discussed above) based on the principle that is not required by the Constitution will have to be reconsidered if it is. So the stare decisis argument is a wash. If, on the other hand, the argument is meant as an appeal to logic rather than stare decisis, it is a classic example of begging the question: Congress's attempt to set aside since it represents an assertion that violation of is not a violation of the Constitution, also represents an assertion that the Court has no power to impose on the To answer this assertion—not by showing why violation of is a violation of the Constitution—but by asserting that does apply against the is to assume precisely the point at issue. In my view, our continued application of the code to the despite our consistent statements that running afoul of its dictates does not necessarily—or even usually—result in an actual constitutional violation, represents not the source of `s salvation but rather evidence of its ultimate illegitimacy. See generally J. Grano, Confessions, Truth, and the Law -198 ; Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, As Justice Stevens has elsewhere explained: "This Court's power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution. If the Court does not accept that premise, it must regard the holding in the case itself, as well as all of the federal jurisprudence that has *457 evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power." Elstad, Quite so. III There was available to the Court a means of reconciling the established proposition that a violation of does not itself offend the Fifth Amendment with the Court's assertion of a right to ignore the present statute. That means of reconciliation was argued strenuously by both petitioner and the United who were evidently more concerned than the Court is with maintaining the coherence of our jurisprudence. It is not mentioned in the Court's opinion because, I assume, a majority of the Justices intent on reversing believes that incoherence is the lesser evil. They may be right. Petitioner and the United contend that there is nothing at all exceptional, much less unconstitutional, about the Court's adopting prophylactic rules to buttress constitutional rights, and enforcing them against Congress and the Indeed, the United argues that "[p]rophylactic rules are now and have been for many years a feature of this Court's constitutional adjudication." Brief for United 47. That statement is not wholly inaccurate, if by "many years" one means since the mid-1960's. However, in their zeal to validate what is in my view a lawless practice, the United and petitioner greatly overstate the frequency with which we have engaged in it. For instance, petitioner cites several cases in which the Court quite simply exercised its traditional judicial power to define the scope of constitutional protections and, relatedly, the circumstances in which they are violated. See ; 474 U.S. 1, Similarly unsupportive of the supposed practice is Bruton v. United where we concluded that the Confrontation Clause of the Sixth Amendment forbids the admission of a nontestifying codefendant's facially incriminating confession in a joint trial, even where the jury has been given a limiting instruction. That decision was based, not upon the theory that this was desirable protection "beyond" what the Confrontation Clause technically required; but rather upon the self-evident proposition that the inability to cross-examine an available witness whose damaging out-of-court testimony is introduced violates the Confrontation Clause, combined with the conclusion that in these circumstances a mere jury instruction can never be relied upon to prevent the testimony from being damaging, see The United also relies on our cases involving the question whether a State's procedure for appointed counsel's withdrawal of representation on appeal satisfies the State's constitutional obligation to "`affor[d] adequate and effective appellate review to indigent defendants.' " 528 U.S. 2, In we concluded that California's procedure governing withdrawal fell short of the constitutional minimum, and we outlined a procedure that would meet that standard. But as we made clear earlier this Term in Smith, which upheld a procedure different from the one Anders suggested, the benchmark of constitutionality is the constitutional requirement of adequate representation, and not some excrescence upon that requirement decreed, for safety's sake, by this Court. *4 In a footnote, the United directs our attention to certain overprotective First Amendment rules that we have adopted to ensure "breathing space" for expression. See ; In these cases, and others involving the First Amendment, the Court has acknowledged that in order to guarantee that protected speech is not "chilled" and thus forgone, it is in some instances necessary to incorporate in our substantive rules a "measure of strategic protection." But that is because the Court has viewed the importation of "chill" as itself a violation of the First Amendment—not because the Court thought it could go beyond what the First Amendment demanded in order to provide some prophylaxis. Petitioner and the United are right on target, however, in characterizing the Court's actions in a case decided within a few years of North There, the Court concluded that due process would be offended were a judge vindictively to resentence with added severity a defendant who had successfully appealed his original conviction. Rather than simply announce that vindictive sentencing violates the Due Process Clause, the Court went on to hold that "[i]n order to assure the absence of such a [vindictive] motivation, the reasons for [imposing the increased sentence] must affirmatively appear" and must "be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." The Court later explicitly acknowledged Pearce `s prophylactic character, see It is true, therefore, that the *460 case exhibits the same fundamental flaw as does when deprived (as it has been) of its original (implausible) pretension to announcement of what the Constitution itself required. That is, although the Due Process Clause may well prohibit punishment based on judicial vindictiveness, the Constitution by no means vests in the courts "any general power to prescribe particular devices `in order to assure the absence of such a motivation,' " Justice Black surely had the right idea when he derided the Court's requirement as "pure legislation if there ever was legislation," ib although in truth Pearce `s rule pales as a legislative achievement when compared to the detailed code promulgated in[1] The foregoing demonstrates that, petitioner's and the United ' suggestions to the contrary notwithstanding, what the Court did in (assuming, as later cases hold, that went beyond what the Constitution actually requires) is in fact extraordinary. That the Court has, on rare and recent occasion, repeated the mistake does not transform error into truth, but illustrates the potential for future mischief that the error entails. Where the Constitution has wished to lodge in one of the branches of the Federal Government some limited power to supplement its guarantees, it has said so. See Amdt. 14, 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article"). The power with which the Court would endow itself under a "prophylactic" justification for goes far beyond what it has permitted Congress to do under authority of that text. Whereas we have insisted *461 that congressional action under 5 of the Fourteenth Amendment must be "congruent" with, and "proportional" to, a constitutional violation, see City of 5 the nontextual power to embellish confers authority to prescribe preventive measures against not only constitutionally prohibited compelled confessions, but also (as discussed earlier) foolhardy ones. I applaud, therefore, the refusal of the Justices in the majority to enunciate this boundless doctrine of judicial empowerment as a means of rendering today's decision rational. In nonetheless joining the Court's judgment, however, they overlook two truisms: that actions speak louder than silence, and that (in judge-made law at least) logic will out. Since there is in fact no other principle that can reconcile today's judgment with the post- cases that the Court refuses to abandon, what today's decision will stand for, whether the Justices can bring themselves to say it or not, is the power of the Supreme Court to write a prophylactic, extra constitutional Constitution, binding on Congress and the IV Thus, while I agree with the Court that 3501 cannot be upheld without also concluding that represents an illegitimate exercise of our authority to review state-court judgments, I do not share the Court's hesitation in reaching that conclusion. For while the Court is also correct that the doctrine of stare decisis demands some "special justification" for a departure from longstanding precedent—even precedent of the constitutional variety—that criterion is more than met here. To repeat Justice Stevens' cogent observation, it is "[o]bviou[s]" that "the Court's power to reverse 's conviction rested entirely on the determination that a violation of the Federal Constitution had occurred." Elstad, n. 9 (emphasis added). Despite the Court's Orwellian assertion to the contrary, it is undeniable that later cases (discussed *462 above) have "undermined [ `s] doctrinal underpinnings," ante, at 443, denying constitutional violation and thus stripping the holding of its only constitutionally legitimate support. `s critics and supporters alike have long made this point. See Office of Legal Policy, U. S. Dept. of Justice, Report to Attorney General on Law of Pre-Trial Interrogation 97 ("The current Court has repudiated the premises on which was based, but has drawn back from recognizing the full implications of its decisions"); (" accordingly repudiated the doctrinal basis of the decision"); Sonenshein, and the Burger Court: Trends and Countertrends, 13 Loyola U. Chi. L. J. 405, 407-408 ("Although the Burger Court has not overruled the Court has consistently undermined the rationales, assumptions, and values which gave life"); ("Seemingly, the Court [in ] utterly destroyed both `s rationale and its holding"); Stone, The Doctrine in the Burger Court, 1977 S. Ct. Rev. 99, 118 ("Mr. Justice Rehnquist's conclusion that there is a violation of the Self-Incrimination Clause only if a confession is involuntary is an outright rejection of the core premises of "). The Court cites as accurately reflecting our standard for overruling, see ante, at 443—which I am pleased to accept, even though Patterson was speaking of overruling statutory cases and the standard for constitutional decisions is somewhat more lenient. What is set forth there reads as though it was written precisely with the current status of in mind: "In cases where statutory precedents have been overruled, the primary reason for the Court's shift in position has been the intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress. Where such changes have *463 removed or weakened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies, the Court has not hesitated to overrule an earlier decision." 491 U.S., at Neither am I persuaded by the argument for retaining that touts its supposed workability as compared with the totality-of-the-circumstances test it purported to replace. `s proponents cite ad nauseam the fact that the Court was called upon to make difficult and subtle distinctions in applying the "voluntariness" test in some 30-odd due process "coerced confessions" cases in the 30 years between and It is not immediately apparent, however, that the judicial burden has been eased by the "bright-line" rules adopted in In fact, in the 34 years since was decided, this Court has been called upon to decide nearly 60 cases involving a host of issues, most of them predicted with remarkable prescience by Justice White in his Moreover, it is not clear why the Court thinks that the "totality-of-the-circumstances test is more difficult than for law enforcement officers to conform to, and for courts to apply in a consistent manner." Ante, Indeed, I find myself persuaded by Justice O'Connor's rejection of this same argument in her opinion in Williams, -712 : ", for all its alleged brightness, is not without its difficulties; and voluntariness is not without its strengths. ". creates as many close questions as it resolves. The task of determining whether a defendant is in `custody' has proved to be `a slippery one.' And the supposedly `bright' lines that separate interrogation *464 from spontaneous declaration, the exercise of a right from waiver, and the adequate warning from the inadequate, likewise have turned out to be rather dim and ill defined. "The totality-of-the-circumstances approach, on the other hand, permits each fact to be taken into account without resort to formal and dispositive labels. By dispensing with the difficulty of producing a yes-or-no answer to questions that are often better answered in shades and degrees, the voluntariness inquiry often can make judicial decisionmaking easier rather than more onerous. " (Emphasis added; citations omitted.) But even were I to agree that the old totality-of-thecircumstances test was more cumbersome, it is simply not true that has banished it from the law and replaced it with a new test. Under the current regime, which the Court today retains in its entirety, courts are frequently called upon to undertake both inquiries. That is because, as explained earlier, voluntariness remains the constitutional standard, and as such continues to govern the admissibility for impeachment purposes of statements taken in violation of the admissibility of the "fruits" of such statements, and the admissibility of statements challenged as unconstitutionally obtained despite the interrogator's compliance with see, e. g., Finally, I am not convinced by petitioner's argument that should be preserved because the decision occupies a special place in the "public's consciousness." Brief for Petitioner 44. As far as I am aware, the public is not under the illusion that we are infallible. I see little harm in admitting that we made a mistake in taking away from the people the ability to decide for themselves what protections (beyond those required by the Constitution) are reasonably affordable in the criminal investigatory process. And I see much to be gained by reaffirming for the people the wonderful reality *465 that they govern themselves—which means that "[t]he powers not delegated to the United by the Constitution" that the people adopted, "nor prohibited to the " by that Constitution, "are reserved to the respectively, or to the people," U. S. Const., Amdt. 10.[2] * * * Today's judgment converts from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the the original opinion at least asserted that it was demanded by the Constitution. Today's decision does not pretend that it is—and yet still asserts the right to impose it against the will of the people's representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision—especially a celebrated decision—that has come to stand for the proposition that the Supreme Court has power to impose extra constitutional constraints upon Congress and the This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people. I dissent from today's decision, and, until 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary.

Justice Scalia

majority

Wal-Mart Stores, Inc. v. Dukes

2011-06-20

https://www.courtlistener.com/opinion/219194/wal-mart-stores-inc-v-dukes/

https://www.courtlistener.com/api/rest/v3/clusters/219194/

We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminat ing against women. In addition to injunctive and declara tory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). I A Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores through out the country: Discount Stores, Supercenters, Neighbor hood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 2 WAL-MART STORES, INC. v. DUKES Opinion of the Court 40 and 53 separate departments and 80 to 500 staff posi tions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people. Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may in crease the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employ ees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay with in preestablished ranges. Promotions work in a similar fashion. Wal-Mart per mits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant man ager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied. B The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three cur rent or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court amended, 42 U.S. C. §2000e–1 et seq.1 Betty Dukes began working at a Pittsburg, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service man ager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infrac tions. Dukes also claims two male greeters in the Pitts burg store are paid more than she is. Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a. The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In 2001, she was fired for failure to comply with Wal-Mart’s timekeeping policy. These plaintiffs, respondents here, do not allege that —————— 1 The complaint included seven named plaintiffs, but only three re main part of the certified class as narrowed by the Court of Appeals. 4 WAL-MART STORES, INC. v. DUKES Opinion of the Court Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U.S. C. §2000e–2(k). And, respondents say, because Wal- Mart is aware of this effect, its refusal to cabin its manag ers’ authority amounts to disparate treatment, see §2000e–2(a). Their complaint seeks injunctive and de claratory relief, punitive damages, and backpay. It does not ask for compensatory damages. Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby mak ing every woman at the company the victim of one com mon discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action. C Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certifi cation must demonstrate, first, that: “(1) the class is so numerous that joinder of all mem- bers is impracticable, “(2) there are questions of law or fact common to the class, “(3) the claims or defenses of the representative par ties are typical of the claims or defenses of the class, and “(4) the representative parties will fairly and ade quately protect the interests of the class” (paragraph Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court breaks added). Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2 Invoking these provisions, respondents moved the Dis trict Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and man agement track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “ques tions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social —————— 2 Rule 23(b)(1) allows a class to be maintained where “prosecuting separate actions by or against individual class members would create a risk of ” either “(A) inconsistent or varying adjudications,” or “(B) adjudications . . . that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudica tions or would substantially impair or impeded their ability to protect their interests.” Rule 23(b)(3) states that a class may be maintained where “questions of law or fact common to class members predominate over any questions affecting only individual members,” and a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” The applicability of these provisions to the plaintiff class is not before us. 6 WAL-MART STORES, INC. v. DUKES Opinion of the Court framework analysis” of Wal-Mart’s “culture” and person nel practices, and concluded that the company was “vul nerable” to gender discrimination. 603 F.3d 571, 601 (CA9 2010) (en banc). Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s require ments of commonality, typicality, and adequate represen tation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunc tive and declaratory relief, and second because the back pay claims could not be manageably tried as a class with out depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certi fied their proposed class.3 D A divided en banc Court of Appeals substantially af firmed the District Court’s certification order. 603 F.3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id., at 612 (emphasis deleted). It also agreed with the District Court that the named plain tiffs’ claims were sufficiently typical of the class as a whole —————— 3 The District Court excluded backpay claims based on promotion opportunities that had not been publicly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND Cal. 2004). It also decided to afford class members notice of the ac tion and the right to opt-out of the class with respect to respondents’ punitive-damages claim. Id., at 173. Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court to satisfy Rule 23(a)(3), and that they could serve as ade quate class representatives, see Rule 23(a)(4). Id., at 614– 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims. Id., at 616 (internal quotation marks omitted).4 Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in Hilao v. Estate of Marcos, 103 F.3d 767, 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F.3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be em ployed in this case.” Id., at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ibid., n. 56 (emphasis deleted). —————— 4 To enable that result, the Court of Appeals trimmed the (b)(2) class in two ways: First, it remanded that part of the certification order which included respondents’ punitive-damages claim in the (b)(2) class, so that the District Court might consider whether that might cause the monetary relief to predominate. 603 F.3d, at 621. Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must predominate. It excluded from the certified class “those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed,” id., at 623 (emphasis added). 8 WAL-MART STORES, INC. v. DUKES Opinion of the Court We granted certiorari. 562 U. S. ___ (2010). II The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979). In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plain tiff ’s claims.’ ” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982) (quoting General Tele phone Co. of Northwest v. EEOC, 446 U.S. 318, 330 (1980)). A The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is —————— 5 We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the inter ests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” General Telephone Co. of Southwest v. Fal Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our manag ers have discretion over pay? Is that an unlawful em ployment practice? What remedies should we get? Recit ing these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to dem onstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same pro vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for ex ample, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the valid ity of each one of the claims in one stroke. “What matters to class certification . . . is not the rais ing of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to gen —————— con, 457 U.S. 147, 157–158, n. 13 (1982). In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequate representation requirements of Rule 23(a). 10 WAL-MART STORES, INC. v. DUKES Opinion of the Court erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the gen eration of common answers.” Nagareda, supra, at 132. Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively dem onstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently nu merous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U.S., at 160, and that certification is proper only if “the trial court is satis fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161; see id., at 160 (“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considera tions that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Falcon, supra, at 160 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978); some internal quotation marks omitted).6 —————— 6 A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), is sometimes mistakenly cited to the con trary: “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see id., at 165), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases. Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676–677 (CA7 2001) (Easterbrook, J.). In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employ ment decision,” Cooper v. Federal Reserve Bank of Rich mond, 467 U.S. 867, 876 (1984). Here respondents wish —————— Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individ ual members” would often be an insuperable barrier to class certifica tion, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plain tiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___, ___ (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits. 7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that . . . discrimination was the com pany’s standard operating procedure[,] the regular rather than the unusual practice.” Teamsters v. United States, 431 U.S. 324, 358 (1977); see also Franks v. Bowman Transp. Co., 424 U.S. 747, 772 (1976). If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” Teamsters, supra, at 361. 12 WAL-MART STORES, INC. v. DUKES Opinion of the Court to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored. B This Court’s opinion in Falcon describes how the com monality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class compris ing all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U.S., at 152. We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an in dividual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typi cal of the class claims.” Id., at 157–158. Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ ment and incumbent employees, a class action on behalf of every applicant or employee who might have been preju diced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id., at 159, n. 15. Second, “[s]ignificant proof that an employer oper ated under a general policy of discrimination conceivably Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro motion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes respon dents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evalu ating employees under a common standard. The second manner of bridging the gap requires “signifi cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recog nized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respon dents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaning ful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calcu late whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 14 WAL-MART STORES, INC. v. DUKES Opinion of the Court U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certifica tion stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a gen eral policy of discrimination.” C The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common —————— 8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analy sis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and be havior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); id., at 1745, 1747 (“[A] social framework necessarily contains only general state ments about reliable patterns of relations among variables . . . and goes no further. . . . Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); id., at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of Wal- Mart’s stores nationwide for the multi-year class period”). Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of dis criminatory conduct,” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988). To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U.S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions. Respondents have not identified a common mode of exer cising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analy sis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way 16 WAL-MART STORES, INC. v. DUKES Opinion of the Court without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short. The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin con ducted his analysis region-by-region, comparing the num ber of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities . . . can be explained only by gender discrimination.” 603 F.3d, at 604 (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Ibid. Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff ’s experience of discrimination was insuffi cient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U.S., at 158. A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” 603 F.3d, at 637. A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni form, store-by-store disparity upon which the plaintiffs’ theory of commonality depends. There is another, more fundamental, respect in which Cite as: 564 U. S. ____ (2011) 17 Opinion of the Court respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level su pervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is chal lenged.” Watson, 487 U.S., at 994; accord, Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989) (approv ing that statement), superseded by statute on other grounds, 42 U.S. C. §2000e–2(k). That is all the more necessary when a class of plaintiffs is sought to be certi fied. Other than the bare existence of delegated discre tion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice. Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In Teamsters v. United States, 431 U.S. 324 (1977), in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial 18 WAL-MART STORES, INC. v. DUKES Opinion of the Court discrimination from particular individuals. See id., at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, id., at 337, and the class itself consisted of around 334 persons, United States v. T.I.M.E.-D. C., Inc., 517 F.2d 299, 308 (CA5 1975), overruled on other grounds, Teamsters, supra. The 40 anecdotes thus repre sented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class members. 517 F.2d, at 315, and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal- Mart’s 3,400 stores. 603 F.3d, at 634 (Ikuta, J., dissent ing). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Id., at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “oper ate[s] under a general policy of discrimination,” Falcon, supra, at 159, n. 15, which is what respondents must show to certify a companywide class.9 The dissent misunderstands the nature of the foregoing —————— 9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class.” Post, at 5, n. 4 (GINSBURG, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a gen eral policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all. Cite as: 564 U. S. ____ (2011) 19 Opinion of the Court analysis. It criticizes our focus on the dissimilarities be tween the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality require ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10 In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a ka leidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, —————— 10 For this reason, there is no force to the dissent’s attempt to distin guish Falcon on the ground that in that case there were “ ‘no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post, at 9, n. 7 (quoting Falcon, 457 U.S., at 162 (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post, at 9, n. 7), the same employment prac tices do not “touch and concern all members of the class.” 20 WAL-MART STORES, INC. v. DUKES Opinion of the Court at 652 (dissenting opinion). III We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief. A Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certifica tion when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certi fication when each class member would be entitled to an Cite as: 564 U. S. ____ (2011) 21 Opinion of the Court individualized award of monetary damages. That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that pre dated its codification, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U.S. 815, 841–845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, class based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U.S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, 313 F.2d 284, 289, n. 5 (CA5 1963); Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., 311 F.2d 107, 109 (CA4 1962) (per curiam); Frasier v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC 1955) (three-judge court), aff’d, 350 U.S. 979 (1956). Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impos sible or unworkable, as in a (b)(1) class,11 or that the relief —————— 11 Rule 23(b)(1) applies where separate actions by or against individ ual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997), or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the 22 WAL-MART STORES, INC. v. DUKES Opinion of the Court sought must perforce affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U.S., at 614 (inter nal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id., at 615 (quoting Advisory Committee’s Notes, 28 U.S. C. App., p. 697 (1994 ed.)). It allows class certifica tion in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B). Given that structure, we think it clear that individ ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into —————— individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, . . . in which numerous persons make claims against a fund insufficient to satisfy all claims,” Amchem, supra, at 614. Cite as: 564 U. S. ____ (2011) 23 Opinion of the Court whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Pre dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and opt- out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an addi tional reason not to read Rule 23(b)(2) to include the monetary claims here. B Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and de claratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to 24 WAL-MART STORES, INC. v. DUKES Opinion of the Court establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudica tion nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protec tions whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction. Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “pre dominate.” But it also created the possibility (if the pre dominance test were correct) that individual class mem bers’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally es topped from independently seeking compensatory dam ages based on that same denial. That possibility under scores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have. The predominance test would also require the District Court to reevaluate the roster of class members continu ally. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed Cite as: 564 U. S. ____ (2011) 25 Opinion of the Court by Wal-Mart lack standing to seek injunctive or declara tory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the valid ity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declara tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plain tiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certi fied under Rule 23(b)(2) at all. Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U.S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunc tive relief and the payment of “backpay,” see §2000e– 26 WAL-MART STORES, INC. v. DUKES Opinion of the Court 5(g)(2)(A)). C In Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “inciden tal to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consis tent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this stan dard, and in any event they cannot. Contrary to the Ninth Circuit’s view, Wal-Mart is enti tled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed reme dial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimina tion, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A). Cite as: 564 U. S. ____ (2011) 27 Opinion of the Court We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings . . . to determine the scope of individual relief.” Teamsters, 431 U.S., at 361. At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the indi vidual applicant was denied an employment opportunity for lawful reasons.” Id., at 362. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F.3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U.S. C. §2072(b); see Ortiz, 527 U.S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) class. * * * The judgment of the Court of Appeals is Reversed. Cite as: 564 U. S. ____ (2011) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES _________________ No. 10–277 _________________ WAL-MART STORES, INC., PETITIONER v. BETTY DUKES ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 20, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and dissenting in part. The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola tion of Title VII, 42 U.S. C. §2000e et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20– 27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or com pensatory damages—and that a class action is “superior” to other modes of adjudication. Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). —————— 1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47. 2 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. In so ruling, the Court imports into the Rule 23(a) de termination concerns properly addressed in a Rule 23(b)(3) assessment. I A Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the class.”2 The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions §3.10, pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality re quirement,” Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003). See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members). A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Diction ary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved . . . [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either —————— 2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representa tive parties will fairly and adequately protect the interests of the class.” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante, at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolu tion of those issues. Cite as: 564 U. S. ____ (2011) 3 Opinion of GINSBURG, J. of fact or of law, the resolution of which will advance the determination of the class members’ claims.3 B The District Court, recognizing that “one significant is sue common to the class may be sufficient to warrant cer tification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonal ity. See Califano v. Yamasaki, 442 U.S. 682, 703 (1979) (“[M]ost issues arising under Rule 23 . . . [are] committed in the first instance to the discretion of the district court.”). The District Court certified a class of “[a]ll women em ployed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (in ternal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making em ployment decisions such as . . . promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male manage rial workforce” using “arbitrary and subjective criteria.” Ibid. Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that em —————— 3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting . . . questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question. 4 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployees be willing to relocate.” Id., at 56a. Absent in struction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commis sion, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995). Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management em ployees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” Id., at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” Ibid.; cf. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 643 (2007) (GINSBURG, J., dissenting). The District Court identified “systems for . . . promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are com mon to all class members.” 222 F. R. D., at 149. The selection of employees for promotion to in-store manage ment “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Id., at 148. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Ibid. Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. Wal- Mart provides no standards or criteria for setting wages within that band, and thus does nothing to counter uncon scious bias on the part of supervisors. See id., at 146–147. Cite as: 564 U. S. ____ (2011) 5 Opinion of GINSBURG, J. Wal-Mart’s supervisors do not make their discretion ary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed . . . corporate culture,” such as frequent meetings to re- inforce the common way of thinking, regular transfers of managers between stores to ensure uniformity through out the company, monitoring of stores “on a close and con stant basis,” and “Wal-Mart TV,” “broadcas[t] . . . into all stores.” Id., at 151–153 (internal quotation marks omitted). The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suf fused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (in ternal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart execu tives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certifica tion in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 (internal quotation marks omitted). Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, con —————— 4 The majority purports to derive from Teamsters v. United States, 431 U.S. 324 (1977), a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class. Ante, at 17–18. Teamsters, the Court acknowledges, see ante, at 18, n. 9, instructs that statistical evidence alone may suffice, 431 U.S., at 339; that decision can hardly be said to establish a nu merical floor before anecdotal evidence can be taken into account. 6 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. trolled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. Id., at 159.5 The results, the District Court found, were sufficient to raise an “inference of dis crimination.” Id., at 155–160. C The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The prac tice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce dispa rate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of dis crimination is heightened when those managers are pre dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes. The plaintiffs’ allegations resemble those in one of the —————— 5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante, at 16 (internal quotation marks omitted). In fact, his regression analyses showed there were disparities within stores. The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order. 6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musi cians through auditions open to all comers. Id., at 716. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Id., at 738. Cite as: 564 U. S. ____ (2011) 7 Opinion of GINSBURG, J. prototypical cases in this area, Leisner v. New York Tel. Co., 358 F. Supp. 359, 364–365 (SDNY 1973). In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” Id., at 365 (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” Ibid. (internal quotation marks omitted). It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own. We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such prac tices are motivated by discriminatory intent but also when they produce discriminatory results. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988, 991 (1988). But see ante, at 17 (“[P]roving that [a] discretionary system has produced a . . . disparity is not enough.”). In Watson, as here, an employer had given its managers large author ity over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion sys tem” caused a discriminatory effect based on race. 487 U.S., at 984 (internal quotation marks omitted). Four different supervisors had declined, on separate occasions, to promote the employee. Id., at 982. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Ibid. Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” Id., at 990–991. See also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (recogniz ing “the use of ‘subjective decision making’ ” as an “em 8 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployment practic[e]” subject to disparate-impact attack). The plaintiffs’ allegations state claims of gender dis crimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the Dis trict Court adequately demonstrated that resolving those claims would necessitate examination of particular poli cies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores. Rule 23(a)(2), setting a necessary but not a sufficient criterion for class action certification, demands nothing further. II A The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro motion policies are discriminatory. See ante, at 9 (“Re- citing” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not suffi- cient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the pro posed class” that “have the potential to impede the genera tion of common answers.” Ante, at 9–10 (quoting Na gareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted). The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Prac tice §23.23[2], p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi —————— 7 The Court places considerable weight on General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982). Ante, at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in Falcon alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and Cite as: 564 U. S. ____ (2011) 9 Opinion of GINSBURG, J. fication requires, in addition to the four 23(a) findings, de terminations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is supe rior to other available methods for . . . adjudicating the controversy.”8 The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor Nagareda, whose “dissimi —————— failure to hire Mexican-American applicants. There were “no common questions of law or fact” between the claims of the lead plaintiff and the applicant class. 457 U.S., at 162 (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intention ally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ibid., appropriate for facially neutral prac tices. “[T]he only commonality [wa]s that respondent is a Mexican- American and he seeks to represent a class of Mexican-Americans.” Ibid. Here the same practices touch and concern all members of the class. 8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class mem bers would create a risk of . . . inconsistent or varying adjudications . . . [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members . . . ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added). 10 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. larities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).9 “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997). If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3). Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilari ties” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See Amchem Products, 521 U.S., at 623, n. 19 (Rule 23(b)(1)(B) “does not have a predominance requirement”); Yamasaki, 442 U.S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual back ground of each claim will affect the outcome of the legal issue”). For example, in Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), a Rule 23(b)(2) class of African- American truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. Id., at 772 (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunc —————— 9 Cf.supra, at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question . . . common to the members of the class” (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). Cite as: 564 U. S. ____ (2011) 11 Opinion of GINSBURG, J. tive] relief to the entire class.” Ibid. B The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class mem bers, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante, at 15. Wal-Mart’s delegation of discretion over pay and promo tions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in vari ous ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces discriminatory outcomes. 487 U.S., at 990–991; see su pra, at 7–8. A finding that Wal-Mart’s pay and promo tions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking indi vidual remedies for company-wide discrimination. Team sters v. United States, 431 U.S. 324, 359 (1977); see Albe marle Paper Co. v. Moody, 422 U.S. 405, 415–423 (1975). That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff “was refused . . . advancement . . . for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination. * * * The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion

We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminat ing against women. In addition to injunctive and declara tory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). I A Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores through out the country: Discount Stores, Supercenters, Neighbor hood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 2 WAL-MART STORES, INC. v. DUKES Opinion of the Court 40 and 53 separate departments and 80 to 500 staff posi tions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people. Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may in crease the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employ ees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay with in preestablished ranges. Promotions work in a similar fashion. Wal-Mart per mits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant man ager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied. B The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three cur rent or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, as Cite as: 564 U. S. (2011) 3 Opinion of the Court amended, 42 U.S. C. et seq.1 Betty Dukes began working at a Pittsburg, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service man ager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infrac tions. Dukes also claims two male greeters in the Pitts burg store are paid more than she is. Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a. The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In she was fired for failure to comply with Wal-Mart’s timekeeping policy. These plaintiffs, respondents here, do not allege that —————— 1 The complaint included seven named plaintiffs, but only three re main part of the certified class as narrowed by the Court of Appeals. 4 WAL-MART STORES, INC. v. DUKES Opinion of the Court Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U.S. C. And, respondents say, because Wal- Mart is aware of this effect, its refusal to cabin its manag ers’ authority amounts to disparate treatment, see Their complaint seeks injunctive and de claratory relief, punitive damages, and backpay. It does not ask for compensatory damages. Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby mak ing every woman at the company the victim of one com mon discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action. C Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certifi cation must demonstrate, first, that: “(1) the class is so numerous that joinder of all mem- bers is impracticable, “(2) there are questions of law or fact common to the class, “(3) the claims or defenses of the representative par ties are typical of the claims or defenses of the class, and “(4) the representative parties will fairly and ade quately protect the interests of the class” (paragraph Cite as: 564 U. S. (2011) 5 Opinion of the Court breaks added). Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2 Invoking these provisions, respondents moved the Dis trict Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and man agement track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “ques tions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social —————— 2 Rule 23(b)(1) allows a class to be maintained where “prosecuting separate actions by or against individual class members would create a risk of ” either “(A) inconsistent or varying adjudications,” or “(B) adjudications that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudica tions or would substantially impair or impeded their ability to protect their interests.” Rule 23(b)(3) states that a class may be maintained where “questions of law or fact common to class members predominate over any questions affecting only individual members,” and a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” The applicability of these provisions to the plaintiff class is not before us. 6 WAL-MART STORES, INC. v. DUKES Opinion of the Court framework analysis” of Wal-Mart’s “culture” and person nel practices, and concluded that the company was “vul nerable” to gender discrimination. (CA9 2010) (en banc). Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s require ments of commonality, typicality, and adequate represen tation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunc tive and declaratory relief, and second because the back pay claims could not be manageably tried as a class with out depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certi fied their proposed 3 D A divided en banc Court of Appeals substantially af firmed the District Court’s certification order. 603 F.3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” It also agreed with the District Court that the named plain tiffs’ claims were sufficiently typical of the class as a whole —————— 3 The District Court excluded backpay claims based on promotion opportunities that had not been publicly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND Cal. 2004). It also decided to afford class members notice of the ac tion and the right to opt-out of the class with respect to respondents’ punitive-damages claim. Cite as: 564 U. S. (2011) 7 Opinion of the Court to satisfy Rule 23(a)(3), and that they could serve as ade quate class representatives, see Rule 23(a)(4). at – 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims.4 Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F.3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be em ployed in this case.” It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ib n. 56 —————— 4 To enable that result, the Court of Appeals trimmed the (b)(2) class in two ways: First, it remanded that part of the certification order which included respondents’ punitive-damages claim in the (b)(2) class, so that the District Court might consider whether that might cause the monetary relief to Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must It excluded from the certified class “those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed,” at (emphasis added). 8 WAL-MART STORES, INC. v. DUKES Opinion of the Court We granted certiorari. 562 U. S. (2010). II The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” 700–701 In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class ” East Tex. Motor Freight System, ). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plain tiff ’s claims.’ ” General Telephone Co. of Southwest v. (quoting General Tele phone Co. of (1980)). A The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the ” Rule 23(a)(2).5 That language is —————— 5 We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the inter ests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” General Telephone Co. of Southwest v. Fal Cite as: 564 U. S. (2011) 9 Opinion of the Court easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our manag ers have discretion over pay? Is that an unlawful em ployment practice? What remedies should we get? Recit ing these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to dem onstrate that the class members “have suffered the same injury,” This does not mean merely that they have all suffered a violation of the same pro vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for ex ample, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the valid ity of each one of the claims in one stroke. “What matters to class certification is not the rais ing of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to gen —————— con, In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequate representation requirements of Rule 23(a). 10 WAL-MART STORES, INC. v. DUKES Opinion of the Court erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the gen eration of common answers.” Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively dem onstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently nu merous parties, common questions of law or fact, etc. We recognized in that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” and that certification is proper only if “the trial court is satis fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” ; see (“[A]ctual, not presumed, conformance with Rule 23(a) remains indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considera tions that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978); some internal quotation marks omitted).6 —————— 6 A statement in one of our prior cases, 417 U.S. is sometimes mistakenly cited to the con trary: “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see ), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases. Cite as: 564 U. S. (2011) 11 Opinion of the Court Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See (Easterbrook, J.). In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employ ment decision,” Here respondents wish —————— Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individ ual members” would often be an insuperable barrier to class certifica tion, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plain tiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits. 7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that discrimination was the com pany’s standard operating procedure[,] the regular rather than the unusual practice.” ; see also If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” 12 WAL-MART STORES, INC. v. DUKES Opinion of the Court to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored. B This Court’s opinion in describes how the com monality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class compris ing all employees wrongfully denied promotions and all applicants wrongfully denied We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an in dividual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typi cal of the class claims.” –158. suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ ment and incumbent employees, a class action on behalf of every applicant or employee who might have been preju diced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” n. 15. Second, “[s]ignificant proof that an employer oper ated under a general policy of discrimination conceivably Cite as: 564 U. S. (2011) 13 Opinion of the Court could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro motion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” We think that statement precisely describes respon dents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evalu ating employees under a common standard. The second manner of bridging the gap requires “signifi cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 7a–1596a, and as the District Court recog nized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respon dents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” He could not, however, “determine with any specificity how regularly stereotypes play a meaning ful role in employment decisions at Wal-Mart. At his deposition Dr. Bielby conceded that he could not calcu late whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 14 WAL-MART STORES, INC. v. DUKES Opinion of the Court U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certifica tion stage of class-action 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a gen eral policy of discrimination.” C The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common —————— 8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analy sis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and be havior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); 1747 (“[A] social framework necessarily contains only general state ments about reliable patterns of relations among variables and goes no further. Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of Wal- Mart’s stores nationwide for the multi-year class period”). Cite as: 564 U. S. (2011) 15 Opinion of the Court and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of dis criminatory conduct,” To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” at –991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U.S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions. Respondents have not identified a common mode of exer cising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analy sis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way 16 WAL-MART STORES, INC. v. DUKES Opinion of the Court without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short. The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin con ducted his analysis region-by-region, comparing the num ber of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart [and] these disparities can be explained only by gender discrimination.” (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In we held that one named plaintiff ’s experience of discrimination was insuffi cient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni form, store-by-store disparity upon which the plaintiffs’ theory of commonality depends. There is another, more fundamental, respect in which Cite as: 564 U. S. (2011) 17 Opinion of the Court respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level su pervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is chal lenged.” ; accord, Wards Cove Packing (approv ing that statement), superseded by statute on other grounds, 42 U.S. C. That is all the more necessary when a class of plaintiffs is sought to be certi fied. Other than the bare existence of delegated discre tion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice. Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In 431 U.S. 324 in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial 18 WAL-MART STORES, INC. v. DUKES Opinion of the Court discrimination from particular individuals. See at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, and the class itself consisted of around 334 persons, United overruled on other grounds, The 40 anecdotes thus repre sented roughly one account for every eight members of the Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal- Mart’s 3,400 (Ikuta, J., dissent ing). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “oper ate[s] under a general policy of discrimination,” n. 15, which is what respondents must show to certify a companywide 9 The dissent misunderstands the nature of the foregoing —————— 9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the ” Post, at 5, n. 4 (GINSBURG, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a gen eral policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all. Cite as: 564 U. S. (2011) 19 Opinion of the Court analysis. It criticizes our focus on the dissimilarities be tween the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality require ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 ). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10 In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a ka leidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, —————— 10 For this reason, there is no force to the dissent’s attempt to distin guish on the ground that in that case there were “ ‘no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post, at 9, n. 7 (quoting (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post, at 9, n. 7), the same employment prac tices do not “touch and concern all members of the ” 20 WAL-MART STORES, INC. v. DUKES Opinion of the Court at 652 (dissenting opinion). III We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief. A Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” 84 N. Y. U. L. Rev., In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the It does not authorize class certifica tion when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certi fication when each class member would be entitled to an Cite as: 564 U. S. (2011) 21 Opinion of the Court individualized award of monetary damages. That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that pre dated its codification, in determining its meaning we have previously looked to the historical models on which the Rule was based, v. Fibreboard Corp., 527 U.S. 815, 841–845 (1999). As we observed in “[c]ivil rights cases against parties charged with unlawful, class based discrimination are prime examples” of what (b)(2) is meant to In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, ; Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., ; Frasier v. Board of Trustees of N.C., (NC 1955) (three-judge court), aff’d, Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impos sible or unworkable, as in a (b)(1) class,11 or that the relief —————— 11 Rule 23(b)(1) applies where separate actions by or against individ ual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the 22 WAL-MART STORES, INC. v. DUKES Opinion of the Court sought must perforce affect the entire class at once, as in a (b)(2) For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, (inter nal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” (quoting Advisory Committee’s Notes, 28 U.S. C. App., p. 697 (1994 ed.)). It allows class certifica tion in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B). Given that structure, we think it clear that individ ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into —————— individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, in which numerous persons make claims against a fund insufficient to satisfy all claims,” at Cite as: 564 U. S. (2011) 23 Opinion of the Court whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Pre dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the Similarly, (b)(2) does not require that class members be given notice and opt- out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an addi tional reason not to read Rule 23(b)(2) to include the monetary claims here. B Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and de claratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to 24 WAL-MART STORES, INC. v. DUKES Opinion of the Court establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudica tion nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protec tions whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction. Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “pre dominate.” But it also created the possibility (if the pre dominance test were correct) that individual class mem bers’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally es topped from independently seeking compensatory dam ages based on that same denial. That possibility under scores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have. The predominance test would also require the District Court to reevaluate the roster of class members continu ally. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed Cite as: 564 U. S. (2011) 25 Opinion of the Court by Wal-Mart lack standing to seek injunctive or declara tory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the valid ity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declara tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plain tiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certi fied under Rule 23(b)(2) at all. Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U.S. C. and (ii) (distinguishing between declaratory and injunc tive relief and the payment of “backpay,” see 26 WAL-MART STORES, INC. v. DUKES Opinion of the Court 5(g)(2)(A)). C In (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “inciden tal to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” We need not decide in this case whether there are any forms of “incidental” monetary relief that are consis tent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this stan dard, and in any event they cannot. Contrary to the Ninth Circuit’s view, Wal-Mart is enti tled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed reme dial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay or any other equitable relief as the court deems appropriate.” 5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimina tion, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” 5(g)(2)(A). Cite as: 564 U. S. (2011) 27 Opinion of the Court We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings to determine the scope of individual relief.” 431 U.S., At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the indi vidual applicant was denied an employment opportunity for lawful reasons.” The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized –627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U.S. C. see a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) * * * The judgment of the Court of Appeals is Reversed. Cite as: 564 U. S. (2011) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 10–277 WAL-MART STORES, INC., PETITIONER v. BETTY DUKES ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 20, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and dissenting in part. The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola tion of Title VII, 42 U.S. C. et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20– 27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or com pensatory damages—and that a class action is “superior” to other modes of adjudication. Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). —————— 1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47. 2 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. In so ruling, the Court imports into the Rule 23(a) de termination concerns properly addressed in a Rule 23(b)(3) assessment. I A Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the ”2 The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality re quirement,” The Preexistence Principle and the Structure of the Class Action, n. 110 See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members). A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Diction ary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either —————— 2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representa tive parties will fairly and adequately protect the interests of the ” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante, at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolu tion of those issues. Cite as: 564 U. S. (2011) 3 Opinion of GINSBURG, J. of fact or of law, the resolution of which will advance the determination of the class members’ claims.3 B The District Court, recognizing that “one significant is sue common to the class may be sufficient to warrant cer tification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonal ity. See (“[M]ost issues arising under Rule 23 [are] committed in the first instance to the discretion of the district court.”). The District Court certified a class of “[a]ll women em ployed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (in ternal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making em ployment decisions such as promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male manage rial workforce” using “arbitrary and subjective criteria.” Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that em —————— 3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question. 4 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployees be willing to relocate.” at 56a. Absent in struction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commis sion, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995). Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management em ployees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” ; cf. 643 (2007) (GINSBURG, J., dissenting). The District Court identified “systems for promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are com mon to all class ” 222 F. R. D., at 149. The selection of employees for promotion to in-store manage ment “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. Wal- Mart provides no standards or criteria for setting wages within that band, and thus does nothing to counter uncon scious bias on the part of supervisors. See at 146–147. Cite as: 564 U. S. (2011) 5 Opinion of GINSBURG, J. Wal-Mart’s supervisors do not make their discretion ary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed corporate culture,” such as frequent meetings to re- inforce the common way of thinking, regular transfers of managers between stores to ensure uniformity through out the company, monitoring of stores “on a close and con stant basis,” and “Wal-Mart TV,” “broadcas[t] into all ” at 151–153 (internal quotation marks omitted). The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suf fused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (in ternal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart execu tives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certifica tion in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, con —————— 4 The majority purports to derive from a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the Ante, at 17–18. the Court acknowledges, see ante, at 18, n. 9, instructs that statistical evidence alone may suffice, ; that decision can hardly be said to establish a nu merical floor before anecdotal evidence can be taken into account. 6 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. trolled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked.5 The results, the District Court found, were sufficient to raise an “inference of dis crimination.” at 155–160. C The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The prac tice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce dispa rate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of dis crimination is heightened when those managers are pre dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes. The plaintiffs’ allegations resemble those in one of the —————— 5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante, at 16 In fact, his regression analyses showed there were disparities within The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order. 6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musi cians through auditions open to all comers. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Cite as: 564 U. S. (2011) 7 Opinion of GINSBURG, J. prototypical cases in this area, F. Supp. In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own. We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such prac tices are motivated by discriminatory intent but also when they produce discriminatory results. See v. Fort Worth Bank & Trust, But see ante, at 17 (“[P]roving that [a] discretionary system has produced a disparity is not enough.”). In as here, an employer had given its managers large author ity over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion sys tem” caused a discriminatory effect based on race. 487 U.S., at 984 Four different supervisors had declined, on separate occasions, to promote the employee. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” at –991. See also Wards Cove Packing (recogniz ing “the use of ‘subjective decision making’ ” as an “em 8 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployment practic[e]” subject to disparate-impact attack). The plaintiffs’ allegations state claims of gender dis crimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the Dis trict Court adequately demonstrated that resolving those claims would necessitate examination of particular poli cies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s Rule 23(a)(2), setting a necessary but not a sufficient criterion for class action certification, demands nothing further. II A The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro motion policies are discriminatory. See ante, at 9 (“Re- citing” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not suffi- cient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the pro posed class” that “have the potential to impede the genera tion of common answers.” Ante, at 9–10 (quoting Na gareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted). The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Prac tice p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi —————— 7 The Court places considerable weight on General Telephone Co. of Southwest v. Ante, at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and Cite as: 564 U. S. (2011) 9 Opinion of GINSBURG, J. fication requires, in addition to the four 23(a) findings, de terminations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is supe rior to other available methods for adjudicating the controversy.”8 The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor whose “dissimi —————— failure to hire Mexican-American applicants. There were “no common questions of law or fact” between the claims of the lead plaintiff and the applicant (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intention ally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ib appropriate for facially neutral prac tices. “[T]he only commonality [wa]s that respondent is a Mexican- American and he seeks to represent a class of Mexican-Americans.” Here the same practices touch and concern all members of the 8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class mem bers would create a risk of inconsistent or varying adjudications [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added). 10 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. larities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).9 “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3). Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilari ties” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See 521 U.S., at n. 19 “does not have a predominance requirement”); Yamasaki, 442 U.S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual back ground of each claim will affect the outcome of the legal issue”). For example, in a Rule 23(b)(2) class of African- American truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. at (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunc —————— 9 Cf. at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question common to the members of the class” ). Cite as: 564 U. S. (2011) 11 Opinion of GINSBURG, J. tive] relief to the entire ” B The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class mem bers, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante, at 15. Wal-Mart’s delegation of discretion over pay and promo tions is a policy uniform throughout all The very nature of discretion is that people will exercise it in vari ous ways. A system of delegated discretion, held, is a practice actionable under Title VII when it produces discriminatory 487 U.S., at –991; see su pra, at 7–8. A finding that Wal-Mart’s pay and promo tions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking indi vidual remedies for company-wide discrimination. Team ; see Albe marle Paper –423 That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, 5(g)(2)(A) (barring backpay if a plaintiff “was refused advancement for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination. * * * The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion

Justice Souter

majority

Chevron USA Inc. v. Echazabal

2002-06-10

https://www.courtlistener.com/opinion/121147/chevron-usa-inc-v-echazabal/

https://www.courtlistener.com/api/rest/v3/clusters/121147/

2001-059

A regulation of the Equal Employment Opportunity Commission authorizes refusal to hire an individual because his performance on the job would endanger his own health, owing to a disability. The question in this case is whether the Americans with Disabilities Act of 1990, 104 Stat. 328, 42 U.S. C. § 12101 et seq. (1994 ed. and Supp. V), permits the regulation.[1] We hold that it does. I Beginning in 1972, respondent Mario Echazabal worked for independent contractors at an oil refinery owned by petitioner Chevron U. S. A. Inc. Twice he applied for a job directly with Chevron, which offered to hire him if he could pass the company's physical examination. See 42 U.S. C. § 12112(d)(3) (1994 ed.). Each time, the exam showed liver abnormality or damage, the cause eventually being identified as Hepatitis C, which Chevron's doctors said would be aggravated by continued exposure to toxins at Chevron's refinery. In each instance, the company withdrew the offer, and the second time it asked the contractor employing Echazabal either to reassign him to a job without exposure to harmful chemicals or to remove him from the refinery altogether. The contractor laid him off in early 1996. Echazabal filed suit, ultimately removed to federal court, claiming, among other things, that Chevron violated the Americans with Disabilities Act (ADA or Act) in refusing to *77 hire him, or even to let him continue working in the plant, because of a disability, his liver condition.[2] Chevron defended under a regulation of the Equal Employment Opportunity Commission (EEOC) permitting the defense that a worker's disability on the job would pose a "direct threat" to his health, see 29 CFR § 1630.15(b)(2) (2001). Although two medical witnesses disputed Chevron's judgment that Echazabal's liver function was impaired and subject to further damage under the job conditions in the refinery, the District Court granted summary judgment for Chevron. It held that Echazabal raised no genuine issue of material fact as to whether the company acted reasonably in relying on its own doctors' medical advice, regardless of its accuracy. On appeal, the Ninth Circuit asked for briefs on a threshold question not raised before, whether the EEOC's regulation recognizing a threat-to-self defense, ibid., exceeded the scope of permissible rulemaking under the ADA. 226 F.3d 1063, 1066, n. 3 (2000). The Circuit held that it did and reversed the summary judgment. The court rested its position on the text of the ADA itself in explicitly recognizing an employer's right to adopt an employment qualification barring anyone whose disability would place others in the workplace at risk, while saying nothing about threats to the disabled employee himself. The majority opinion reasoned that "by specifying only threats to `other individuals in the workplace,' the statute makes it clear that threats to other persons—including the disabled individual himself—are not included within the scope of the [direct threat] defense," id., at 1066-1067, and it indicated that any such regulation would unreasonably conflict with congressional policy against paternalism in the workplace, id., at 1067-1070. The court went on to reject Chevron's further argument that Echazabal *78 was not "`otherwise qualified' " to perform the job, holding that the ability to perform a job without risk to one's health or safety is not an "`essential function' " of the job. Id., at 1070. The decision conflicted with one from the Eleventh Circuit, Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (1996), and raised tension with the Seventh Circuit case of Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 603 (1999). We granted certiorari, 534 U.S. 991 (2001), and now reverse. II Section 102 of the ADA, 104 Stat. 328, 42 U.S. C. § 12101 et seq., prohibits "discriminat[ion] against a qualified individual with a disability because of the disability . . . inregard to" a number of actions by an employer, including "hiring." 42 U.S. C. § 12112(a). The statutory definition of "discriminat[ion]" covers a number of things an employer might do to block a disabled person from advancing in the workplace, such as "using qualification standards . . . that screen out or tend to screen out an individual with a disability." § 12112(b)(6). By that same definition, ibid., as well as by separate provision, § 12113(a), the Act creates an affirmative defense for action under a qualification standard "shown to be job-related for the position in question and . . . consistent with business necessity." Such a standard may include "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," § 12113(b), if the individual cannot perform the job safely with reasonable accommodation, § 12113(a). By regulation, the EEOC carries the defense one step further, in allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety as well: "The term `qualification standard' may include a requirement that an individual shall not pose *79 a direct threat to the health or safety of the individual or others in the workplace." 29 CFR § 1630.15(b)(2) (2001). Chevron relies on the regulation here, since it says a job in the refinery would pose a "direct threat" to Echazabal's health. In seeking deference to the agency, it argues that nothing in the statute unambiguously precludes such a defense, while the regulation was adopted under authority explicitly delegated by Congress, 42 U.S. C. § 12116, and after notice-and-comment rulemaking.See United States v. Mead Corp., 533 U.S. 218, 227 (2001); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). Echazabal, on the contrary, argues that as a matter of law the statute precludes the regulation, which he claims would be an unreasonable interpretation even if the agency had leeway to go beyond the literal text. A As for the textual bar to any agency action as a matter of law, Echazabal says that Chevron loses on the threshold question whether the statute leaves a gap for the EEOC to fill. See id., at 843-844. Echazabal recognizes the generality of the language providing for a defense when a plaintiff is screened out by "qualification standards" that are "jobrelated and consistent with business necessity" (and reasonable accommodation would not cure the difficulty posed by employment). 42 U.S. C. § 12113(a). Without more, those provisions would allow an employer to turn away someone whose work would pose a serious risk to himself. That possibility is said to be eliminated, however, by the further specification that "`qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." § 12113(b); see also § 12111(3) (defining "direct threat" in terms of risk to others). Echazabal contrasts this provision with an EEOC regulation under the Rehabilitation Act of 1973, 87 Stat. 357, as amended, 29 U.S. C. § 701 et seq., antedating *80 the ADA, which recognized an employer's right to consider threats both to other workers and to the threatening employee himself. Because the ADA defense provision recognizes threats only if they extend to another, Echazabal reads the statute to imply as a matter of law that threats to the worker himself cannot count. The argument follows the reliance of the Ninth Circuit majority on the interpretive canon, expressio unius est exclusio alterius, "expressing one item of [an] associated group or series excludes another left unmentioned." United States v. Vonn, 535 U.S. 55, 65 (2002). The rule is fine when it applies, but this case joins some others in showing when it does not. See, e. g., ibid.; United Dominion Industries, Inc. v. United States, 532 U.S. 822, 836 (2001); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 703 (1991). The first strike against the expression-exclusion rule here is right in the text that Echazabal quotes. Congress included the harm-to-others provision as an example of legitimate qualifications that are "job-related and consistent with business necessity." These are spacious defensive categories, which seem to give an agency (or in the absence of agency action, a court) a good deal of discretion in setting the limits of permissible qualification standards. That discretion is confirmed, if not magnified, by the provision that "qualification standards" falling within the limits of job relation and business necessity "may include" a veto on those who would directly threaten others in the workplace. Far from supporting Echazabal's position, the expansive phrasing of "may include" points directly away from the sort of exclusive specification he claims. United States v. New York Telephone Co., 434 U.S. 159, 169 (1977); Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941).[3] *81 Just as statutory language suggesting exclusiveness is missing, so is that essential extrastatutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication. The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which is abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded. E. Crawford, Construction of Statutes 337 (1940) (expressio unius "`properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference' " (quoting State ex rel. Curtis v. De Corps, 134 Ohio St. 295, 299, 16 N.E.2d 459, 462 (1938))); United States v. Vonn, supra. Strike two in this case is the failure to identify any such established series, including both threats to others and threats to self, from which Congress appears to have made a deliberate choice to omit the latter item as a signal of the affirmative defense's scope. The closest Echazabal comes is the EEOC's rule interpreting the Rehabilitation Act of 1973, 87 Stat. 357, as amended, 29 U.S. C. § 701 et seq., a precursor of the ADA. That statute excepts from the definition of a protected "qualified individual with a handicap" anyone who would pose a "direct threat to the health or safety of other individuals," but, like the later ADA, the Rehabilitation *82 Act says nothing about threats to self that particular employment might pose. 42 U.S. C. § 12113(b). The EEOC nonetheless extended the exception to cover threat-to-self employment, 29 CFR § 1613.702(f) (1990), and Echazabal argues that Congress's adoption only of the threat-to-others exception in the ADA must have been a deliberate omission of the Rehabilitation Act regulation's tandem term of threat-to-self, with intent to exclude it. But two reasons stand in the way of treating the omission as an unequivocal implication of congressional intent. The first is that the EEOC was not the only agency interpreting the Rehabilitation Act, with the consequence that its regulation did not establish a clear, standard pairing of threats to self and others. While the EEOC did amplify upon the text of the Rehabilitation Act exclusion by recognizing threats to self along with threats to others, three other agencies adopting regulations under the Rehabilitation Act did not. See 28 CFR § 42.540(l )(1) (1990) (Department of Justice), 29 CFR § 32.3 (1990) (Department of Labor), and 45 CFR § 84.3(k)(1) (1990) (Department of Health and Human Services).[4] It would be a stretch, then, to say that there was a standard usage, with its source in agency practice or elsewhere, that connected threats to others so closely to threats to self that leaving out one was like ignoring a twin. Even if we put aside this variety of administrative experience, however, and look no further than the EEOC's Rehabilitation *83 Act regulation pairing self and others, the congressional choice to speak only of threats to others would still be equivocal. Consider what the ADA reference to threats to others might have meant on somewhat different facts. If the Rehabilitation Act had spoken only of "threats to health" and the EEOC regulation had read that to mean threats to self or others, a congressional choice to be more specific in the ADA by listing threats to others but not threats to self would have carried a message. The most probable reading would have been that Congress understood what a failure to specify could lead to and had made a choice to limit the possibilities. The statutory basis for any agency rulemaking under the ADA would have been different from its basis under the Rehabilitation Act and would have indicated a difference in the agency's rulemaking discretion. But these are not the circumstances here. Instead of making the ADA different from the Rehabilitation Act on the point at issue, Congress used identical language, knowing full well what the EEOC had made of that language under the earlier statute. Did Congress mean to imply that the agency had been wrong in reading the earlier language to allow it to recognize threats to self, or did Congress just assume that the agency was free to do under the ADA what it had already done under the earlier Act's identical language? There is no way to tell. Omitting the EEOC's reference to self-harm while using the very language that the EEOC had read as consistent with recognizing self-harm is equivocal at best. No negative inference is possible. There is even a third strike against applying the expression-exclusion rule here. It is simply that there is no apparent stopping point to the argument that by specifying a threat-to-others defense Congress intended a negative implication about those whose safety could be considered. When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker's disability *84 would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away? See 42 U.S. C. § 12113(d). Expressio unius just fails to work here. B Since Congress has not spoken exhaustively on threats to a worker's own health, the agency regulation can claim adherence under the rule in Chevron, 467 U. S., at 843, so long as it makes sense of the statutory defense for qualification standards that are "job-related and consistent with business necessity." 42 U.S. C. § 12113(a). Chevron's reasons for calling the regulation reasonable are unsurprising: moral concerns aside, it wishes to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U.S. C. § 651 et seq. Although Echazabal claims that none of these reasons is legitimate, focusing on the concern with OSHA will be enough to show that the regulation is entitled to survive. Echazabal points out that there is no known instance of OSHA enforcement, or even threatened enforcement, against an employer who relied on the ADA to hire a worker willing to accept a risk to himself from his disability on the job. In Echazabal's mind, this shows that invoking OSHA policy and possible OSHA liability is just a red herring to excuse covert discrimination. But there is another side to this. The text of OSHA itself says its point is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions," § 651(b), and Congress specifically obligated an employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," § 654(a)(1). Although there may be an open question *85 whether an employer would actually be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him, see Brief for United States et al. as Amici Curiae 19, n. 7, there is no denying that the employer would be asking for trouble: his decision to hire would put Congress's policy in the ADA, a disabled individual's right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of "each" and "every" worker. Courts would, of course, resolve the tension if there were no agency action, but the EEOC's resolution exemplifies the substantive choices that agencies are expected to make when Congress leaves the intersection of competing objectives both imprecisely marked but subject to the administrative leeway found in 42 U.S. C. § 12113(a). Nor can the EEOC's resolution be fairly called unreasonable as allowing the kind of workplace paternalism the ADA was meant to outlaw. It is true that Congress had paternalism in its sights when it passed the ADA, see § 12101(a)(5) (recognizing "overprotective rules and policies" as a form of discrimination). But the EEOC has taken this to mean that Congress was not aiming at an employer's refusal to place disabled workers at a specifically demonstrated risk, but was trying to get at refusals to give an even break to classes of disabled people, while claiming to act for their own good in reliance on untested and pretextual stereotypes.[5] Its regulation *86 disallows just this sort of sham protection, through demands for a particularized enquiry into the harms the employee would probably face. The direct threat defense must be "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence," and upon an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job," reached after considering, among other things, the imminence of the risk and the severity of the harm portended. 29 CFR § 1630.2(r) (2001). The EEOC was certainly acting within the reasonable zone when it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job.[6] *87 Finally, our conclusions that some regulation is permissible and this one is reasonable are not open to Echazabal's objection that they reduce the direct threat provision to "surplusage," see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995). The mere fact that a threat-to-self defense reasonably falls within the general "job related" and "business necessity" standard does not mean that Congress accomplished nothing with its explicit provision for a defense based on threats to others. The provision made a conclusion clear that might otherwise have been fought over in litigation or administrative rulemaking. It did not lack a job to do merely because the EEOC might have adopted the same rule later in applying the general defense provisions, nor was its job any less responsible simply because the agency was left with the option to go a step further. A provision can be useful even without congressional attention being indispensable. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered.

A regulation of the Equal Employment Opportunity Commission authorizes refusal to hire an individual because his performance on the job would endanger his own health, owing to a disability. The question in this case is whether the Americans with Disabilities Act of 1990, 42 U.S. C. 12101 et seq. (1994 ed. and Supp. V), permits the regulation.[1] We hold that it does. I Beginning in 1972, respondent Mario Echazabal worked for independent contractors at an oil refinery owned by petitioner U. S. A. Inc. Twice he applied for a job directly with which offered to hire him if he could pass the company's physical examination. See 42 U.S. C. 12112(d)(3) (1994 ed.). Each time, the exam showed liver abnormality or damage, the cause eventually being identified as Hepatitis C, which 's doctors said would be aggravated by continued exposure to toxins at 's refinery. In each instance, the company withdrew the offer, and the second time it asked the contractor employing Echazabal either to reassign him to a job without exposure to harmful chemicals or to remove him from the refinery altogether. The contractor laid him off in early Echazabal filed suit, ultimately removed to federal court, claiming, among other things, that violated the Americans with Disabilities Act (ADA or Act) in refusing to *77 hire him, or even to let him continue working in the plant, because of a disability, his liver condition.[2] defended under a regulation of the Equal Employment Opportunity Commission (EEOC) permitting the defense that a worker's disability on the job would pose a "direct threat" to his health, see 29 CFR 1630.15(b)(2) Although two medical witnesses disputed 's judgment that Echazabal's liver function was impaired and subject to further damage under the job conditions in the refinery, the District Court granted summary judgment for It held that Echazabal raised no genuine issue of material fact as to whether the company acted reasonably in relying on its own doctors' medical advice, regardless of its accuracy. On appeal, the Ninth Circuit asked for briefs on a threshold question not raised before, whether the EEOC's regulation recognizing a threat-to-self defense, ib exceeded the scope of permissible rulemaking under the ADA. The Circuit held that it did and reversed the summary judgment. The court rested its position on the text of the ADA itself in explicitly recognizing an employer's right to adopt an employment qualification barring anyone whose disability would place others in the workplace at risk, while saying nothing about threats to the disabled employee himself. The majority opinion reasoned that "by specifying only threats to `other individuals in the workplace,' the statute makes it clear that threats to other persons—including the disabled individual himself—are not included within the scope of the [direct threat] defense," and it indicated that any such regulation would unreasonably conflict with congressional policy against paternalism in the workplace, The court went on to reject 's further argument that Echazabal *78 was not "`otherwise qualified' " to perform the job, holding that the ability to perform a job without risk to one's health or safety is not an "`essential function' " of the job. The decision conflicted with one from the Eleventh Circuit, and raised tension with the Seventh Circuit case of We granted certiorari, and now reverse. II Section 102 of the ADA, 42 U.S. C. 12101 et seq., prohibits "discriminat[ion] against a qualified individual with a disability because of the disability inregard to" a number of actions by an employer, including "hiring." 42 U.S. C. 12112(a). The statutory definition of "discriminat[ion]" covers a number of things an employer might do to block a disabled person from advancing in the workplace, such as "using qualification standards that screen out or tend to screen out an individual with a disability." 12112(b)(6). By that same definition, ib as well as by separate provision, 12113(a), the Act creates an affirmative defense for action under a qualification standard "shown to be job-related for the position in question and consistent with business necessity." Such a standard may include "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," 12113(b), if the individual cannot perform the job safely with reasonable accommodation, 12113(a). By regulation, the EEOC carries the defense one step further, in allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety as well: "The term `qualification standard' may include a requirement that an individual shall not pose *79 a direct threat to the health or safety of the individual or others in the workplace." 29 CFR 1630.15(b)(2) relies on the regulation here, since it says a job in the refinery would pose a "direct threat" to Echazabal's health. In seeking deference to the agency, it argues that nothing in the statute unambiguously precludes such a defense, while the regulation was adopted under authority explicitly delegated by Congress, 42 U.S. C. 12116, and after notice-and-comment rulemaking.See United ; U. S. A. Echazabal, on the contrary, argues that as a matter of law the statute precludes the regulation, which he claims would be an unreasonable interpretation even if the agency had leeway to go beyond the literal text. A As for the textual bar to any agency action as a matter of law, Echazabal says that loses on the threshold question whether the statute leaves a gap for the EEOC to fill. See Echazabal recognizes the generality of the language providing for a defense when a plaintiff is screened out by "qualification standards" that are "jobrelated and consistent with business necessity" (and reasonable accommodation would not cure the difficulty posed by employment). 42 U.S. C. 12113(a). Without more, those provisions would allow an employer to turn away someone whose work would pose a serious risk to himself. That possibility is said to be eliminated, however, by the further specification that "`qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." 12113(b); see also 12111(3) (defining "direct threat" in terms of risk to others). Echazabal contrasts this provision with an EEOC regulation under the Rehabilitation Act of 1973, as amended, 29 U.S. C. 701 et seq., antedating *80 the ADA, which recognized an employer's right to consider threats both to other workers and to the threatening employee himself. Because the ADA defense provision recognizes threats only if they extend to another, Echazabal reads the statute to imply as a matter of law that threats to the worker himself cannot count. The argument follows the reliance of the Ninth Circuit majority on the interpretive canon, expressio unius est exclusio alterius, "expressing one item of [an] associated group or series excludes another left unmentioned." United The rule is fine when it applies, but this case joins some others in showing when it does not. See, e. g., ibid.; United Dominion Industries, ; The first strike against the expression-exclusion rule here is right in the text that Echazabal quotes. Congress included the harm-to-others provision as an example of legitimate qualifications that are "job-related and consistent with business necessity." These are spacious defensive categories, which seem to give an agency (or in the absence of agency action, a court) a good deal of discretion in setting the limits of permissible qualification standards. That discretion is confirmed, if not magnified, by the provision that "qualification standards" falling within the limits of job relation and business necessity "may include" a veto on those who would directly threaten others in the workplace. Far from supporting Echazabal's position, the expansive phrasing of "may include" points directly away from the sort of exclusive specification he claims. United ; Federal Land Bank of St.[3] *81 Just as statutory language suggesting exclusiveness is missing, so is that essential extrastatutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication. The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which is abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded. E. Crawford, Construction of Statutes 337 (1940) )); United Strike two in this case is the failure to identify any such established series, including both threats to others and threats to self, from which Congress appears to have made a deliberate choice to omit the latter item as a signal of the affirmative defense's scope. The closest Echazabal comes is the EEOC's rule interpreting the Rehabilitation Act of 1973, as amended, 29 U.S. C. 701 et seq., a precursor of the ADA. That statute excepts from the definition of a protected "qualified individual with a handicap" anyone who would pose a "direct threat to the health or safety of other individuals," but, like the later ADA, the Rehabilitation *82 Act says nothing about threats to self that particular employment might pose. 42 U.S. C. 12113(b). The EEOC nonetheless extended the exception to cover threat-to-self employment, 29 CFR 1613.702(f) (1990), and Echazabal argues that Congress's adoption only of the threat-to-others exception in the ADA must have been a deliberate omission of the Rehabilitation Act regulation's tandem term of threat-to-self, with intent to exclude it. But two reasons stand in the way of treating the omission as an unequivocal implication of congressional intent. The first is that the EEOC was not the only agency interpreting the Rehabilitation Act, with the consequence that its regulation did not establish a clear, standard pairing of threats to self and others. While the EEOC did amplify upon the text of the Rehabilitation Act exclusion by recognizing threats to self along with threats to others, three other agencies adopting regulations under the Rehabilitation Act did not. See 28 CFR 42.540(1) (1990) (Department of Justice), 29 CFR 32.3 (1990) and 45 CFR 84.3(k)(1) (1990)[4] It would be a stretch, then, to say that there was a standard usage, with its source in agency practice or elsewhere, that connected threats to others so closely to threats to self that leaving out one was like ignoring a twin. Even if we put aside this variety of administrative experience, however, and look no further than the EEOC's Rehabilitation *83 Act regulation pairing self and others, the congressional choice to speak only of threats to others would still be equivocal. Consider what the ADA reference to threats to others might have meant on somewhat different facts. If the Rehabilitation Act had spoken only of "threats to health" and the EEOC regulation had read that to mean threats to self or others, a congressional choice to be more specific in the ADA by listing threats to others but not threats to self would have carried a message. The most probable reading would have been that Congress understood what a failure to specify could lead to and had made a choice to limit the possibilities. The statutory basis for any agency rulemaking under the ADA would have been different from its basis under the Rehabilitation Act and would have indicated a difference in the agency's rulemaking discretion. But these are not the circumstances here. Instead of making the ADA different from the Rehabilitation Act on the point at issue, Congress used identical language, knowing full well what the EEOC had made of that language under the earlier statute. Did Congress mean to imply that the agency had been wrong in reading the earlier language to allow it to recognize threats to self, or did Congress just assume that the agency was free to do under the ADA what it had already done under the earlier Act's identical language? There is no way to tell. Omitting the EEOC's reference to self-harm while using the very language that the EEOC had read as consistent with recognizing self-harm is equivocal at best. No negative inference is possible. There is even a third strike against applying the expression-exclusion rule here. It is simply that there is no apparent stopping point to the argument that by specifying a threat-to-others defense Congress intended a negative implication about those whose safety could be considered. When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker's disability *84 would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away? See 42 U.S. C. 12113(d). Expressio unius just fails to work here. B Since Congress has not spoken exhaustively on threats to a worker's own health, the agency regulation can claim adherence under the rule in so long as it makes sense of the statutory defense for qualification standards that are "job-related and consistent with business necessity." 42 U.S. C. 12113(a). 's reasons for calling the regulation reasonable are unsurprising: moral concerns aside, it wishes to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970, as amended, 29 U.S. C. 1 et seq. Although Echazabal claims that none of these reasons is legitimate, focusing on the concern with OSHA will be enough to show that the regulation is entitled to survive. Echazabal points out that there is no known instance of OSHA enforcement, or even threatened enforcement, against an employer who relied on the ADA to hire a worker willing to accept a risk to himself from his disability on the job. In Echazabal's mind, this shows that invoking OSHA policy and possible OSHA liability is just a red herring to excuse covert discrimination. But there is another side to this. The text of OSHA itself says its point is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions," 1(b), and Congress specifically obligated an employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," 4(a)(1). Although there may be an open question *85 whether an employer would actually be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him, see Brief for United States et al. as Amici Curiae 19, n. 7, there is no denying that the employer would be asking for trouble: his decision to hire would put Congress's policy in the ADA, a disabled individual's right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of "each" and "every" worker. Courts would, of course, resolve the tension if there were no agency action, but the EEOC's resolution exemplifies the substantive choices that agencies are expected to make when Congress leaves the intersection of competing objectives both imprecisely marked but subject to the administrative leeway found in 42 U.S. C. 12113(a). Nor can the EEOC's resolution be fairly called unreasonable as allowing the kind of workplace paternalism the ADA was meant to outlaw. It is true that Congress had paternalism in its sights when it passed the ADA, see 12101(a)(5) (recognizing "overprotective rules and policies" as a form of discrimination). But the EEOC has taken this to mean that Congress was not aiming at an employer's refusal to place disabled workers at a specifically demonstrated risk, but was trying to get at refusals to give an even break to classes of disabled people, while claiming to act for their own good in reliance on untested and pretextual stereotypes.[5] Its regulation *86 disallows just this sort of sham protection, through demands for a particularized enquiry into the harms the employee would probably face. The direct threat defense must be "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence," and upon an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job," reached after considering, among other things, the imminence of the risk and the severity of the harm portended. 29 CFR 1630.2(r) The EEOC was certainly acting within the reasonable zone when it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job.[6] *87 Finally, our conclusions that some regulation is permissible and this one is reasonable are not open to Echazabal's objection that they reduce the direct threat provision to "surplusage," see The mere fact that a threat-to-self defense reasonably falls within the general "job related" and "business necessity" standard does not mean that Congress accomplished nothing with its explicit provision for a defense based on threats to others. The provision made a conclusion clear that might otherwise have been fought over in litigation or administrative rulemaking. It did not lack a job to do merely because the EEOC might have adopted the same rule later in applying the general defense provisions, nor was its job any less responsible simply because the agency was left with the option to go a step further. A provision can be useful even without congressional attention being indispensable. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered.

Justice Souter

majority

SD Warren Co. v. Maine Bd. of Environmental Protection

2006-05-15

https://www.courtlistener.com/opinion/145656/sd-warren-co-v-maine-bd-of-environmental-protection/

https://www.courtlistener.com/api/rest/v3/clusters/145656/

2005-055

[†] The issue in this case is whether operating a dam to produce hydroelectricity "may result in any discharge into the navigable waters" of the United States. If so, a federal license under § 401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed. I The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a "power canal," through turbines, and back to the riverbed, passing around a section of the river just below the impoundment. It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U.S. C. §§ 817(1), 792; see also Public Utility Act of 1935, § 210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U.S. C. § 799, *374 after a review that looks to environmental issues as well as the rising demand for power, § 797(e). Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a "discharge" into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State's own laws. See Water Quality Improvement Act of 1970, § 103, 84 Stat. 108. Today, this requirement can be found in § 401 of the Clean Water Act, 86 Stat. 877, 33 U.S. C. § 1341: "Any applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates . . . ." § 1341(a)(1). "Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§ 1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section."[1] § 1341(d). In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection *375 (the state agency responsible for what have come to be known as "401 state certifications"), but it filed its application under protest, claiming that its dams do not result in any "discharge into" the river triggering application of § 401. The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of § 401 state certification. After appealing unsuccessfully to Maine's administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State's Cumberland County Superior Court. That court rejected Warren's argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. 2005 ME 27, 868 A.2d 210. We granted certiorari, 546 U.S. 933 (2005), and now affirm as well. II The dispute turns on the meaning of the word "discharge," the key to the state certification requirement under § 401.[2] The Act has no definition of the term, but provides that "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants."[3] 33 U.S. C. § 1362(16). It does define "discharge of a pollutant" and "discharge of pollutants" as meaning "any addition of any pollutant to navigable waters from any point source." *376 § 1362(12). But "discharge" presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it "in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). When it applies to water, "discharge" commonly means a "flowing or issuing out," Webster's New International Dictionary 742 (2d ed. 1954); see also ibid. ("[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay"), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e. g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 364 (1989) (describing a dam's "`multiport' structure, which will permit discharge of water from any of five levels"); Arizona v. California, 373 U.S. 546, 619, n. 25 (1963) (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who "`take . . . water out of the stream which has been discharged from the reservoir'"); United States v. Arizona, 295 U.S. 174, 181 (1935) ("Parker Dam will intercept waters discharged at Boulder Dam"). In fact, this understanding of the word "discharge" was accepted by all Members of the Court sitting in our only other case focused on § 401 of the Clean Water Act, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U.S. 700 (1994). At issue in PUD No. 1 was the State of Washington's authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this: "There is no dispute that petitioners were required to obtain a certification from the State pursuant to § 401. Petitioners concede that, at a minimum, the project will result in two possible discharges—the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the *377 tailrace after the water has been used to generate electricity." Id., at 711. The Pud No. 1 petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State's § 401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the "discharge of water" from the dam was a discharge within the ambit of § 401. Ibid. And although the Court's opinion made no mention of the dam as adding anything to the water, the majority's use of the phrase "discharge of water" drew no criticism from the dissent, which specifically noted that "[t]he term `discharge' is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests `a flowing or issuing out,' or `something that is emitted.'" Id., at 725 (opinion of Thomas, J.) (quoting Webster's Ninth New Collegiate Dictionary 360 (1991)). In resort to common usage under § 401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read "discharge" as having its plain meaning and thus covering releases from hydroelectric dams. See, e. g., EPA, Water Quality Standards Handbook § 7.6.3, p. 7-10 (2d ed. 1994) ("EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act"); FPL Energy Maine Hydro LLC, 111 FERC ¶ 61,104, p. 61,505 (2005) (rejecting, in a recent adjudication, the argument that Congress "used the term `discharge' as nothing more than a shorthand expression for `discharge of a pollutant or pollutants'").[4] Warren is, of course, entirely *378 correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See Gonzales v. Oregon, 546 U.S. 243, 258 (2006) ("Chevron deference. . . is not accorded merely because the statute is ambiguous and an administrative official is involved"); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). But even so, the administrative usage of "discharge" in this way confirms our understanding of the everyday sense of the term. III Warren makes three principal arguments for reading the term "discharge" differently from the ordinary way. We find none availing. A The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that "a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995), and is invoked when a string of statutory terms raises the implication that the "words grouped in a list should be given related meaning," Dole v. Steelworkers, 494 U.S. 26, 36 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511 U.S. 368, 371 (1994) ("That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well"). *379 Warren claims that the canon applies to § 502(16) of the Clean Water Act, which provides that "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." 33 U.S. C. § 1362(16). Warren emphasizes that the "include[d]" terms, pollutant discharges, are themselves defined to require an "addition" of pollutants to water. § 1362(12). Since "discharge" pure and simple is keeping company with "discharge" defined as adding one or more pollutants, Warren says "discharge" standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.[5] The problem with Warren's argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See Beecham, supra, at 371. The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with *380 a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92-911, p. 125 (1972) ("[I]t is extremely important to an understanding of [§ 402] to know the definition of the various terms used and a careful reading of the definitions . . . is recommended. Of particular significance [are] the words `discharge of pollutants'"). B Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004). But that case is not on point. Miccosukee addressed § 402 of the Clean Water Act, not § 401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to "continu[e] the authority of the State . . . to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State." S. Rep. No. 92-414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a federally licensed activity "may" result in a discharge ("discharge" of course being without any qualifiers here), 33 U.S. C. § 1341(a)(1), and its object comprehends maintaining state water quality standards, see n. 1, supra. Section 402 has a historical parallel with § 401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92-911, at 124-125. But it contrasts with § 401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the "discharge of any pollutant" into the navigable waters of the United States, 33 U.S. C. § 1342(a). The triggering statutory *381 term here is not the word "discharge" alone, but "discharge of a pollutant," a phrase made narrower by its specific definition requiring an "addition" of a pollutant to the water. § 1362(12). The question in Miccosukee was whether a pump between a canal and an impoundment produced a "discharge of a pollutant" within the meaning of § 402, see 541 U.S., at 102-103, and the Court accepted the shared view of the parties that if two identified volumes of water are "simply two parts of the same water body, pumping water from one into the other cannot constitute an `addition' of pollutants," id., at 109. Miccosukee was thus concerned only with whether an "addition" had been made (phosphorous being the substance in issue) as required by the definition of the phrase "discharge of a pollutant"; it did not matter under § 402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate § 402 does not explain what suffices for a discharge under § 401.[6] *382 C Warren's third argument for avoiding the common meaning of "discharge" relies on the Act's legislative history, but we think that if the history means anything it actually goes against Warren's position. Warren suggests that the word "includes" in the definition of "discharge" should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with "thermal discharges." As Warren describes it, several Members of Congress recognized that "heat is not as harmful as what most of us view as `pollutants,' because it dissipates quickly in most bodies of receiving waters," 1 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. 273 (1973) (remarks of Rep. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under § 402, but they also wanted to ensure that thermal discharges remained within the scope of § 401 and so sought to include them expressly in the general provision covering "discharge." See id., at 1069-1070, 1071. The proposed definition read, "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge." Id., at 1071. Of course, Congress omitted the reference to "thermal discharge," and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, § 502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words "thermal discharge" from 33 U.S. C. § 1362(16) and carelessly left in the word "includes." *383 Thus, Warren argues, there is no reason to assume that describing "discharge" as including certain acts was meant to extend the reach of § 401 beyond acts of the kind specifically mentioned;[7] the terminology of § 401 simply reflects a failed effort to narrow the scope of § 402. This is what might be called a lawyer's argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under § 402. It is simply speculation, though, to say that the word "includes" was left in the description of a "discharge" by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left "thermal discharge" as an included subclass of a "discharge" under § 502(16), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition. Warren's theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms "discharge" and "discharge of pollutants" deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of "discharge" because it wanted to subject thermal discharges to the requirements of § 401, but not § 402. But this assumption about Congress's *384 motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U.S. 23, 29-30 (1997) (if "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)). IV Warren's arguments against reading the word "discharge" in its common sense fail on their own terms.[8] They also miss the forest for the trees. *385 Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S. C. § 1251(a); see also PUD No. 1, 511 U. S., at 714, the "national goal" being to achieve "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water," 33 U.S. C. § 1251(a)(2). To do this, the Act does not stop at controlling the "addition of pollutants," but deals with "pollution" generally, see § 1251(b), which Congress defined to mean "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water," § 1362(19). The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams "can cause changes in the movement, flow, and circulation of a river . . . caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish." Brief for Petitioner 23. And several amici alert us to the chemical modification caused by the dams, with "immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe." Brief for Trout Unlimited et al. as Amici Curiae 13; see also, e. g., Brief for National Wildlife Federation et al. as Amici Curiae 6 (explaining that when air and water mix in a turbine, nitrogen dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine Department of Environmental Protection that led to this appeal: "The record in this case demonstrates that Warren's dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels *386 and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river." In re S. D. Warren Co., L-19713-33-E-N etc. (2003), in App. to Pet. for Cert. A-49. Changes in the river like these fall within a State's legitimate legislative business, and the Clean Water Act provides for a system that respects the States' concerns. See 33 U.S. C. § 1251(b) ("It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution"); § 1256(a) (federal funds for state efforts to prevent pollution); see also § 1370 (States may impose standards on the discharge of pollutants that are stricter than federal ones). State certifications under § 401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now § 401 was first proposed: "No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements." 116 Cong. Rec. 8984 (1970). These are the very reasons that Congress provided the States with power to enforce "any other appropriate requirement of State law," 33 U.S. C. § 1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid. *387 Reading § 401 to give "discharge" its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed. It is so ordered.

[†] The issue in this case is whether operating a dam to produce hydroelectricity "may result in any discharge into the navigable waters" of the United States. If so, a federal license under 40 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed. I The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a "power canal," through turbines, and back to the riverbed, passing around a section of the river just below the impoundment. It is undisputed that since 95, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 6 U.S. C. 87(), 792; see also Public Utility Act of 95, 20, FERC grants these licenses for periods up to 50 years, 6 U.S. C. 799, *74 after a review that looks to environmental issues as well as the rising demand for power, 797(e). Over 0 years ago, Congress enacted a specific provision for licensing an activity that could cause a "discharge" into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State's own laws. See Water Quality Improvement Act of 970, 0, Today, this requirement can be found in 40 of the Clean Water Act, U.S. C. 4: "Any applicant for a Federal license or permit to conduct any activity which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates" 4(a)(). "Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [ 2, 6, and 7] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section."[] 4(d). In 999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection *75 (the state agency responsible for what have come to be known as "40 state certifications"), but it filed its application under protest, claiming that its dams do not result in any "discharge into" the river triggering application of 40. The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of 40 state certification. After appealing unsuccessfully to Maine's administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State's Cumberland County Superior Court. That court rejected Warren's argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. and now affirm as well. II The dispute turns on the meaning of the word "discharge," the key to the state certification requirement under 40.[2] The Act has no definition of the term, but provides that "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants."[] U.S. C. 2(6). It does define "discharge of a pollutant" and "discharge of pollutants" as meaning "any addition of any pollutant to navigable waters from any point source." *76 2(2). But "discharge" presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it "in accordance with its ordinary or natural meaning." When it applies to water, "discharge" commonly means a "flowing or issuing out," Webster's New International Dictionary 742 (2d ed. 954); see also and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e. g., ; (quoting congressional testimony regarding those who "`take water out of the stream which has been discharged from the reservoir'"); United In fact, this understanding of the word "discharge" was accepted by all Members of the Court sitting in our only other case focused on 40 of the Clean Water Act, PUD No. of Jefferson At issue in PUD No. was the State of Washington's authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this: "There is no dispute that petitioners were required to obtain a certification from the State pursuant to 40. Petitioners concede that, at a minimum, the project will result in two possible discharges—the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the *77 tailrace after the water has been used to generate electricity." The Pud No. petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State's 40 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the "discharge of water" from the dam was a discharge within the ambit of 40. And although the Court's opinion made no mention of the dam as adding anything to the water, the majority's use of the phrase "discharge of water" drew no criticism from the dissent, which specifically noted that "[t]he term `discharge' is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests `a flowing or issuing out,' or `something that is emitted.'" (quoting Webster's Ninth New Collegiate Dictionary 0 (99)). In resort to common usage under 40, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read "discharge" as having its plain meaning and thus covering releases from hydroelectric dams. See, e. g., EPA, Water Quality Standards Handbook 7.6., p. 7-0 ("EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act"); FPL Energy Maine Hydro LLC,[4] Warren is, of course, entirely *78 correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See ; But even so, the administrative usage of "discharge" in this way confirms our understanding of the everyday sense of the term. III Warren makes three principal arguments for reading the term "discharge" differently from the ordinary way. We find none availing. A The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that "a word is known by the company it keeps," and is invoked when a string of statutory terms raises the implication that the "words grouped in a list should be given related meaning," ; see also 5 U.S. 8, *79 Warren claims that the canon applies to 502(6) of the Clean Water Act, which provides that "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." U.S. C. 2(6). Warren emphasizes that the "include[d]" terms, pollutant discharges, are themselves defined to require an "addition" of pollutants to water. 2(2). Since "discharge" pure and simple is keeping company with "discharge" defined as adding one or more pollutants, Warren says "discharge" standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.[5] The problem with Warren's argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See at The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with *80 a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92-9, p. 25 (972) ("[I]t is extremely important to an understanding of [ 402] to know the definition of the various terms used and a careful reading of the definitions is recommended. Of particular significance [are] the words `discharge of pollutants'"). B Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management But that case is not on point. Miccosukee addressed 402 of the Clean Water Act, not 40, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 40 recast pre-existing law and was meant to "continu[e] the authority of the State to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State." S. Rep. No. 92-44, p. 69 (97). Its terms have a broad reach, requiring state approval any time a federally licensed activity "may" result in a discharge ("discharge" of course being without any qualifiers here), U.S. C. 4(a)(), and its object comprehends maintaining state water quality standards, see n. Section 402 has a historical parallel with 40, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92-9, at 24-25. But it contrasts with 40 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the "discharge of any pollutant" into the navigable waters of the United States, U.S. C. 42(a). The triggering statutory *8 term here is not the word "discharge" alone, but "discharge of a pollutant," a phrase made narrower by its specific definition requiring an "addition" of a pollutant to the water. 2(2). The question in Miccosukee was whether a pump between a canal and an impoundment produced a "discharge of a pollutant" within the meaning of 402, see 54 U.S., at 02-0, and the Court accepted the shared view of the parties that if two identified volumes of water are "simply two parts of the same water body, pumping water from one into the other cannot constitute an `addition' of pollutants," at 09. Miccosukee was thus concerned only with whether an "addition" had been made (phosphorous being the substance in issue) as required by the definition of the phrase "discharge of a pollutant"; it did not matter under 402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate 402 does not explain what suffices for a discharge under 40.[6] *82 C Warren's third argument for avoiding the common meaning of "discharge" relies on the Act's legislative history, but we think that if the history means anything it actually goes against Warren's position. Warren suggests that the word "includes" in the definition of "discharge" should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with "thermal discharges." As Warren describes it, several Members of Congress recognized that "heat is not as harmful as what most of us view as `pollutants,' because it dissipates quickly in most bodies of receiving waters," Legislative History of the Water Pollution Control Act Amendments of 972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 9-, p. 27 (97) (remarks of Rep. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under 402, but they also wanted to ensure that thermal discharges remained within the scope of 40 and so sought to include them expressly in the general provision covering "discharge." See at 069-070, 07. The proposed definition read, "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge." at 07. Of course, Congress omitted the reference to "thermal discharge," and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 972, 502(6), Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words "thermal discharge" from U.S. C. 2(6) and carelessly left in the word "includes." *8 Thus, Warren argues, there is no reason to assume that describing "discharge" as including certain acts was meant to extend the reach of 40 beyond acts of the kind specifically mentioned;[7] the terminology of 40 simply reflects a failed effort to narrow the scope of 402. This is what might be called a lawyer's argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under 402. It is simply speculation, though, to say that the word "includes" was left in the description of a "discharge" by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left "thermal discharge" as an included subclass of a "discharge" under 502(6), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition. Warren's theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms "discharge" and "discharge of pollutants" deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of "discharge" because it wanted to subject thermal discharges to the requirements of 40, but not 402. But this assumption about Congress's *84 motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See 522 U.S. 2, 29-0 (997) (if "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" ). IV Warren's arguments against reading the word "discharge" in its common sense fail on their own terms.[8] They also miss the forest for the trees. *85 Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," U.S. C. 25(a); see also PUD No. 5 U. S., at 74, the "national goal" being to achieve "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water," U.S. C. 25(a)(2). To do this, the Act does not stop at controlling the "addition of pollutants," but deals with "pollution" generally, see 25(b), which Congress defined to mean "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water," 2(9). The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams "can cause changes in the movement, flow, and circulation of a river caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish." Brief for Petitioner 2. And several amici alert us to the chemical modification caused by the dams, with "immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe." Brief for Trout Unlimited et al. as Amici Curiae ; see also, e. g., Brief for National Wildlife Federation et al. as Amici Curiae 6 (explaining that when air and water mix in a turbine, nitrogen dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine Department of Environmental Protection that led to this appeal: "The record in this case demonstrates that Warren's dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels *86 and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river." In re S. D. Warren Co., L-97--E-N etc. (200), in App. to Pet. for Cert. A-49. Changes in the river like these fall within a State's legitimate legislative business, and the Clean Water Act provides for a system that respects the States' concerns. See U.S. C. 25(b) ("It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution"); 256(a) (federal funds for state efforts to prevent pollution); see also 70 (States may impose standards on the discharge of pollutants that are stricter than federal ones). State certifications under 40 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now 40 was first proposed: "No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements." 6 Cong. Rec. 8984 (970). These are the very reasons that Congress provided the States with power to enforce "any other appropriate requirement of State law," U.S. C. 4(d), by imposing conditions on federal licenses for activities that may result in a discharge, *87 Reading 40 to give "discharge" its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed. It is so ordered.

per_curiam

per_curiam

Tuggle v. Netherland

1995-10-30

https://www.courtlistener.com/opinion/117976/tuggle-v-netherland/

https://www.courtlistener.com/api/rest/v3/clusters/117976/

1995-002

In Zant v. Stephens, 462 U.S. 862 (1983), we held that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid. Id., at 886-888. We noted that our holding did not apply in States in which the jury is instructed to weigh aggravating circumstances against mitigating circumstances in determining whether to impose the death penalty. Id., at 874, n. 12, 890. In this case, the Virginia Supreme Court and the Court of Appeals for the Fourth Circuit construed Zant as establishing a rule that in nonweighing States a death sentence may be upheld on the basis of one valid aggravating circumstance, regardless of the reasons for which another aggravating factor may have been found to be invalid. Because this interpretation of our holding in Zant is incorrect, we now grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and vacate the judgment of the Court of Appeals. I Petitioner Tuggle was convicted of murder in Virginia state court. At his sentencing hearing, the Commonwealth presented unrebutted psychiatric testimony that petitioner demonstrated "`a high probability of future dangerousness.' " Tuggle v. Commonwealth, 230 Va. 99, 107, 334 S.E.2d 838, 844 (1985), cert. denied, Tuggle v. Virginia, 478 U.S. 1010 (1986). After deliberations, the jury found that the Commonwealth had established Virginia's two statutory aggravating circumstances, "future dangerousness" and "vileness"; *12 it exercised its discretion to sentence petitioner to death.[1] 230 Va., at 108-109, 334 S.E.2d, at 844-845. Shortly after the Virginia Supreme Court affirmed petitioner's conviction and sentence, Tuggle v. Commonwealth, 228 Va. 493, 323 S.E.2d 539 (1984), we held in Ake v. Oklahoma, 470 U.S. 68 (1985), that when the prosecutor presents psychiatric evidence of an indigent defendant's future dangerousness in a capital sentencing proceeding, due process requires that the State provide the defendant with the assistance of an independent psychiatrist. Id., at 83-84. Because petitioner had been denied such assistance, we vacated the State Supreme Court's judgment and remanded for further consideration in light of Ake. Tuggle v. Virginia, 471 U.S. 1096 (1985). On remand, the Virginia Supreme Court invalidated the future dangerousness aggravating circumstance because of the Ake error. See Tuggle v. Commonwealth, 230 Va., at 108-111, 334 S.E.2d, at 844-846. The court nevertheless reaffirmed petitioner's death sentence, reasoning that Zant permitted the sentence to survive on the basis of the vileness aggravator. 230 Va., at 110-111, 334 S. E. 2d, at 845-846. The Court of Appeals agreed with this analysis on federal habeas review, Tuggle v. Thompson, 57 F.3d 1356, 1362-1363 (CA4 1995), as it had in the past.[2] Quoting the Virginia Supreme Court, the Court of Appeals stated: "`When a jury makes separate findings of specific statutory aggravating circumstances, any of which could support a sentence of death, and one of the circumstances *13 subsequently is invalidated, the remaining valid circumstance, or circumstances, will support the sentence.' " Id., at 1363 (quoting 230 Va., at 110, 334 S. E. 2d, at 845, and citing Zant, supra ). II Our opinion in Zant stressed that the evidence offered to prove the invalid aggravator was "properly adduced at the sentencing hearing and was fully subject to explanation by the defendant." 462 U.S., at 887. As we explained: "[I]t is essential to keep in mind the sense in which [the stricken] aggravating circumstance is `invalid.' . . . [T]he invalid aggravating circumstance found by the jury in this case was struck down . . . because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. The underlying evidence is nevertheless fully admissible at the sentencing phase." Id. , at 885-886 (internal citations omitted). Zant was thus predicated on the fact that even after elimination of the invalid aggravator, the death sentence rested on firm ground. Two unimpeachable aggravating factors remained and there was no claim that inadmissible evidence was before the jury during its sentencing deliberations or that the defendant had been precluded from adducing relevant mitigating evidence. In this case, the record does not provide comparable support for petitioner's death sentence. The Ake error prevented petitioner from developing his own psychiatric evidence to rebut the Commonwealth's evidence and to enhance his defense in mitigation. As a result, the Commonwealth's psychiatric evidence went unchallenged, which may have unfairly increased its persuasiveness in the eyes of the jury. *14 We may assume, as the Virginia Supreme Court and Court of Appeals found, that petitioner's psychiatric evidence would not have influenced the jury's determination concerning vileness. Nevertheless, the absence of such evidence may well have affected the jury's ultimate decision, based on all of the evidence before it, to sentence petitioner to death rather than life imprisonment. Although our holding in Zant supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of evidence. The latter circumstance is more akin to the situation in Johnson v. Mississippi, 486 U.S. 578 (1988), in which we held that Zant does not apply to support a death sentence imposed by a jury that was allowed to consider materially inaccurate evidence, 486 U.S., at 590, than to Zant itself. Because the Court of Appeals misapplied Zant in this case, its judgment must be vacated. III Having found no need to remedy the Ake error in petitioner's sentencing, the Virginia Supreme Court did not consider whether, or by what procedures, the sentence might be sustained or reimposed; and neither the state court nor the Court of Appeals addressed whether harmless-error analysis is applicable to this case. Because this Court customarily does not address such an issue in the first instance, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. So ordered.

In we held that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid. We noted that our holding did not apply in States in which the jury is instructed to weigh aggravating circumstances against mitigating circumstances in determining whether to impose the death penalty. In this case, the Virginia Supreme Court and the Court of Appeals for the Fourth Circuit construed as establishing a rule that in nonweighing States a death sentence may be upheld on the basis of one valid aggravating circumstance, regardless of the reasons for which another aggravating factor may have been found to be invalid. Because this interpretation of our holding in is incorrect, we now grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and vacate the judgment of the Court of Appeals. I Petitioner Tuggle was convicted of murder in Virginia state court. At his sentencing hearing, the presented unrebutted psychiatric testimony that petitioner demonstrated "`a high probability of future dangerousness.' " cert. denied, After deliberations, the jury found that the had established Virginia's two statutory aggravating circumstances, "future dangerousness" and "vileness"; *12 it exercised its discretion to sentence petitioner to death.[1] 334 S.E.2d, at -845. Shortly after the Virginia Supreme Court affirmed petitioner's conviction and sentence, we held in that when the prosecutor presents psychiatric of an indigent defendant's future dangerousness in a capital sentencing proceeding, due process requires that the State provide the defendant with the assistance of an independent psychiatrist. Because petitioner had been denied such assistance, we vacated the State Supreme Court's judgment and remanded for further consideration in light of Ake. On remand, the Virginia Supreme Court invalidated the future dangerousness aggravating circumstance because of the Ake error. See 334 S.E.2d, at -846. The court nevertheless reaffirmed petitioner's death sentence, reasoning that permitted the sentence to survive on the basis of the vileness 334 S. E. 2d, at 845-846. The Court of Appeals agreed with this analysis on federal habeas review, as it had in the past.[2] Quoting the Virginia Supreme Court, the Court of Appeals stated: "`When a jury makes separate findings of specific statutory aggravating circumstances, any of which could support a sentence of death, and one of the circumstances *13 subsequently is invalidated, the remaining valid circumstance, or circumstances, will support the sentence.' " ( 334 S. E. 2d, at 845, and citing ). II Our opinion in stressed that the offered to prove the invalid aggravator was "properly adduced at the sentencing hearing and was fully subject to explanation by the defendant." As we explained: "[I]t is essential to keep in mind the sense in which [the stricken] aggravating circumstance is `invalid.' [T]he invalid aggravating circumstance found by the jury in this case was struck down because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. The underlying is nevertheless fully admissible at the sentencing phase." at 885-886 (internal citations omitted). was thus predicated on the fact that even after elimination of the invalid aggravator, the death sentence rested on firm ground. Two unimpeachable aggravating factors remained and there was no claim that inadmissible was before the jury during its sentencing deliberations or that the defendant had been precluded from adducing relevant mitigating In this case, the record does not provide comparable support for petitioner's death sentence. The Ake error prevented petitioner from developing his own psychiatric to rebut the 's and to enhance his defense in mitigation. As a result, the 's psychiatric went unchallenged, which may have unfairly increased its persuasiveness in the eyes of the jury. *14 We may assume, as the Virginia Supreme Court and Court of Appeals found, that petitioner's psychiatric would not have influenced the jury's determination concerning vileness. Nevertheless, the absence of such may well have affected the jury's ultimate decision, based on all of the before it, to sentence petitioner to death rather than life imprisonment. Although our holding in supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of The latter circumstance is more akin to the situation in in which we held that does not apply to support a death sentence imposed by a jury that was allowed to consider materially inaccurate than to itself. Because the Court of Appeals misapplied in this case, its judgment must be vacated. III Having found no need to remedy the Ake error in petitioner's sentencing, the Virginia Supreme Court did not consider whether, or by what procedures, the sentence might be sustained or reimposed; and neither the state court nor the Court of Appeals addressed whether harmless-error analysis is applicable to this case. Because this Court customarily does not address such an issue in the first instance, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. So ordered.

Justice Scalia

concurring

Tuggle v. Netherland

1995-10-30

https://www.courtlistener.com/opinion/117976/tuggle-v-netherland/

https://www.courtlistener.com/api/rest/v3/clusters/117976/

1995-002

This is a simple case and should be simply resolved. The jury that deliberated on petitioner's sentence had before it *15 evidence that should have been excluded in light of Ake v. Oklahoma, 470 U.S. 68 (1985). The Virginia Supreme Court so concluded (in an opinion that is not before us) and, having so concluded, was obliged to determine whether there was reasonable doubt as to whether the constitutional error contributed to the jury's decision to impose the sentence of death. Satterwhite v. Texas, 486 U.S. 249, 256 (1988). Because it failed to perform that task, the habeas judgment at issue here cannot stand, and a remand is appropriate to allow the Fourth Circuit to review the case under the harmless-error standard appropriate to collateral review. Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). When these proceedings were before the Virginia Supreme Court after our first remand, petitioner managed to transform the simple question arising from the admission of constitutionally impermissible evidence ("might the constitutional error have affected the decision of the capital sentencing jury?") into a question of seemingly greater moment ("can a death sentence based in part on an `invalid aggravating circumstance' still stand?"). The Virginia Supreme Court answered the second question, the wrong question, perhaps because it assumed that that could easily be resolved by reference to Zant v. Stephens, 462 U.S. 862 (1983); and on federal habeas, the District Court and the Fourth Circuit understandably focused upon the consequences of the Virginia Supreme Court's position that the "future dangerousness" aggravating circumstance was rendered "invalid" by the Ake error. The Court correctly demonstrates why Zant is not applicable here, but regrettably follows the Virginia Supreme Court and the courts below in failing to strip the "invalid aggravating circumstance" camouflage that petitioner has added to a straightforward inadmissible-evidence case.

This is a simple case and should be simply resolved. The jury that deliberated on petitioner's sentence had before it *15 evidence that should have been excluded in light of The Virginia Supreme Court so concluded (in an opinion that is not before us) and, having so concluded, was obliged to determine whether there was reasonable doubt as to whether the constitutional error contributed to the jury's decision to impose the sentence of death. Because it failed to perform that task, the habeas judgment at issue here cannot stand, and a remand is appropriate to allow the Fourth Circuit to review the case under the harmless-error standard appropriate to collateral review. When these proceedings were before the Virginia Supreme Court after our first remand, petitioner managed to transform the simple question arising from the admission of constitutionally impermissible evidence ("might the constitutional error have affected the decision of the capital sentencing jury?") into a question of seemingly greater moment ("can a death sentence based in part on an `invalid aggravating circumstance' still stand?"). The Virginia Supreme Court answered the second question, the wrong question, perhaps because it assumed that that could easily be resolved by reference to ; and on federal habeas, the District Court and the Fourth Circuit understandably focused upon the consequences of the Virginia Supreme Court's position that the "future dangerousness" aggravating circumstance was rendered "invalid" by the Ake error. The Court correctly demonstrates why Zant is not applicable here, but regrettably follows the Virginia Supreme Court and the courts below in failing to strip the "invalid aggravating circumstance" camouflage that petitioner has added to a straightforward inadmissible-evidence case.

Justice Thomas

majority

Nebraska v. Parker

2016-03-22

https://www.courtlistener.com/opinion/3187550/nebraska-v-parker/

https://www.courtlistener.com/api/rest/v3/clusters/3187550/

2015-037

The village of Pender, Nebraska sits a few miles west of an abandoned right-of-way once used by the Sioux City and Nebraska Railroad Company. We must decide whether Pender and surrounding Thurston County, Nebraska, are within the boundaries of the Omaha Indian Reserva- tion or whether the passage of an 1882 Act empowering the United States Secretary of the Interior to sell the Tribe’s land west of the right-of-way “diminished” the reservation’s boundaries, thereby “free[ing]” the disputed land of “its reservation status.” Solem v. Bartlett, 465 U.S. 463, 467 (1984). We hold that Congress did not diminish the reservation in 1882 and that the disputed land is within the reservation’s boundaries. I A Centuries ago, the Omaha Tribe settled in present-day eastern Nebraska. By the mid-19th century, the Tribe was destitute and, in exchange for much-needed revenue, agreed to sell a large swath of its land to the United States. In 1854, the Tribe entered into a treaty with the 2 NEBRASKA v. PARKER Opinion of the Court United States to create a 300,000-acre reservation. Treaty with the Omahas (1854 Treaty), Mar. 16, 1854, 10 Stat. 1043. The Tribe agreed to “cede” and “forever relinquish all right and title to” its land west of the Mississippi River, excepting the reservation, in exchange for $840,000, to be paid over 40 years. Id., at 1043–1044. In 1865, after the displaced Wisconsin Winnebago Tribe moved west, the Omaha Tribe agreed to “cede, sell, and convey” an additional 98,000 acres on the north side of the reservation to the United States for the purpose of creat- ing a reservation for the Winnebagoes. Treaty with the Omaha Indians (1865 Treaty), Mar. 6, 1865, 14 Stat. 667– 668. The Tribe sold the land for a fixed sum of $50,000. Id., at 667. In 1872, the Tribe again expressed its wish to sell por- tions of the reservation, but Congress took a different tack than it had in the 1854 and 1865 Treaties. Instead of purchasing a portion of the reservation for a fixed sum, Congress authorized the Secretary of the Interior to sur- vey, appraise, and sell up to 50,000 acres on the western side of the reservation “to be separated from the remain- ing portion of said reservation” by a north-south line agreed to by the Tribe and Congress. Act of June 10, 1872 (1872 Act), ch. 436, §1, 17 Stat. 391. Under the 1872 Act, a nonmember could purchase “tracts not exceeding one hundred and sixty acres each” or “the entire body offered.” Ibid. Proceeds from any sales would be “placed to the credit of said Indians on the books of the treasury of the United States.” Ibid. But the proceeds were meager. The 1872 Act resulted in only two sales totaling 300.72 acres. Then came the 1882 Act, central to the dispute between petitioners and respondents. In that Act, Congress again empowered the Secretary of the Interior “to cause to be surveyed, if necessary, and sold” more than 50,000 acres lying west of a right-of-way granted by the Tribe and approved by the Secretary of the Interior in 1880 for use Cite as: 577 U. S. ____ (2016) 3 Opinion of the Court by the Sioux City and Nebraska Railroad Company. Act of Aug. 7, 1882 (1882 Act), 22 Stat. 341. The land for sale under the terms of the 1882 Act overlapped substantially with the land Congress tried, but failed, to sell in 1872. Once the land was appraised “in tracts of forty acres each,” the Secretary was “to issue [a] proclamation” that the “lands are open for settlement under such rules and regulations as he may prescribe.” §§1, 2, id., at 341. Within one year of that proclamation, a nonmember could purchase up to 160 acres of land (for no less than $2.50 per acre) in cash paid to the United States, so long as the settler “occup[ied]” it, made “valuable improvements thereon,” and was “a citizen of the United States, or . . . declared his intention to become such.” §2, id., at 341. The proceeds from any land sales, “after paying all ex- penses incident to and necessary for carrying out the provisions of th[e] act,” were to “be placed to the credit of said Indians in the Treasury of the United States.” §3, id., at 341. Interest earned on the proceeds was to be “annu- ally expended for the benefit of said Indians, under the direction of the Secretary of the Interior.” Ibid. The 1882 Act also included a provision, common in the late 19th century, that enabled members of the Tribe to select individual allotments, §§5–8, id., at 342–343, as a means of encouraging them to depart from the communal lifestyle of the reservation. See Solem, supra, at 467. The 1882 Act provided that the United States would convey the land to a member or his heirs in fee simple after hold- ing it in trust on behalf of the member and his heirs for 25 years. §6, 22 Stat. 342. Members could select allotments on any part of the reservation, either east or west of the right-of-way. §8, id., at 343. After the members selected their allotments—only 10 to 15 of which were located west of the right-of-way—the Secretary proclaimed that the remaining 50,157 acres west of the right-of-way were open for settlement by non- 4 NEBRASKA v. PARKER Opinion of the Court members in April 1884. One of those settlers was W. E. Peebles, who “purchased a tract of 160 acres, on which he platted the townsite for Pender.” Smith v. Parker, 996 F. Supp. 2d 815, 828 (Neb. 2014). B The village of Pender today numbers 1,300 residents. Most are not associated with the Omaha Tribe. Less than 2% of Omaha tribal members have lived west of the right- of-way since the early 20th century. Despite its longstanding absence, the Tribe sought to assert jurisdiction over Pender in 2006 by subjecting Pender retailers to its newly amended Beverage Control Ordinance. The ordinance requires those retailers to obtain a liquor license (costing $500, $1,000, or $1,500 depending upon the class of license) and imposes a 10% sales tax on liquor sales. Nonmembers who violate the ordinance are subject to a $10,000 fine. The village of Pender and Pender retailers, including bars, a bowling alley, and social clubs, brought a federal suit against members of the Omaha Tribal Council in their official capacities to challenge the Tribe’s power to impose the requirements of the Beverage Control Ordinance on nonmembers. Federal law permits the Tribe to regulate liquor sales on its reservation and in “Indian country” so long as the Tribe’s regulations are (as they were here) “certified by the Secretary of the Interior, and published in the Federal Register.” 18 U.S. C. §1161. The challengers alleged that they were neither within the boundaries of the Omaha Indian Reservation nor in Indian country and, consequently, were not bound by the ordinance. The State of Nebraska intervened on behalf of the plain- tiffs, and the United States intervened on behalf of the Omaha Tribal Council members. The State’s intervention was prompted, in part, by the Omaha Tribe’s demand that Nebraska share with the Tribe revenue that the State Cite as: 577 U. S. ____ (2016) 5 Opinion of the Court received from fuel taxes imposed west of the right-of-way. In addition to the relief sought by Pender and the Pender retailers, Nebraska sought a permanent injunction prohib- iting the Tribe from asserting tribal jurisdiction over the 50,157 acres west of the abandoned right-of-way. After examining the text of the 1882 Act, as well as the contemporaneous and subsequent understanding of the 1882 Act’s effect on the reservation boundaries, the Dis- trict Court concluded that Congress did not diminish the Omaha Reservation in 1882. 996 F. Supp. 2d, at 844. Accordingly, the District Court denied the plaintiffs’ re- quest for injunctive and declaratory relief barring the Tribe’s enforcement of the Beverage Control Ordinance. The Eighth Circuit affirmed. Smith v. Parker, 774 F.3d 1166, 1168–1169 (2014). We granted certiorari to resolve whether the 1882 Act diminished the Omaha Reservation. 576 U. S. ___ (2015). II We must determine whether Congress “diminished” the Omaha Indian Reservation in 1882. If it did so, the State now has jurisdiction over the disputed land. Solem, 465 U.S., at 467. If Congress, on the other hand, did not diminish the reservation and instead only enabled non- members to purchase land within the reservation, then federal, state, and tribal authorities share jurisdiction over these “opened” but undiminished reservation lands. Ibid. The framework we employ to determine whether an Indian reservation has been diminished is well settled. Id., at 470–472. “[O]nly Congress can divest a reservation of its land and diminish its boundaries,” and its intent to do so must be clear. Id., at 470. To assess whether an Act of Congress diminished a reservation, we start with the statutory text, for “[t]he most probative evidence of dimin- ishment is, of course, the statutory language used to open 6 NEBRASKA v. PARKER Opinion of the Court the Indian lands.” Hagen v. Utah, 510 U.S. 399, 411 (1994). Under our precedents, we also “examine all the circumstances surrounding the opening of a reservation.” Id., at 412. Because of “the turn-of-the-century assump- tion that Indian reservations were a thing of the past,” many surplus land Acts did not clearly convey “whether opened lands retained reservation status or were divested of all Indian interests.” Solem, supra, at 468. For that reason, our precedents also look to any “unequivocal evi- dence” of the contemporaneous and subsequent under- standing of the status of the reservation by members and nonmembers, as well as the United States and the State of Nebraska. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351 (1998). A As with any other question of statutory interpretation, we begin with the text of the 1882 Act, the most “probative evidence” of diminishment. Solem, supra, at 470; see, e.g., United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (“The task of resolving the dispute over the meaning of [a statutory text] begins where all such inqui- ries must begin: with the language of the statute itself”). Common textual indications of Congress’ intent to dimin- ish reservation boundaries include “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests” or “an unconditional commitment from Congress to compensate the Indian tribe for its opened land.” Solem, supra, at 470. Such language “providing for the total surrender of tribal claims in exchange for a fixed payment” evinces Congress’ intent to diminish a reservation, Yankton Sioux, supra, at 345, and creates “an almost insurmountable presumption that Congress meant for the tribe’s reservation to be dimin- ished,” Solem, supra, at 470–471. Similarly, a statutory provision restoring portions of a reservation to “the public Cite as: 577 U. S. ____ (2016) 7 Opinion of the Court domain” signifies diminishment. Hagen, 510 U.S., at 414. In the 19th century, to restore land to the public domain was to extinguish the land’s prior use—its use, for exam- ple, as an Indian reservation—and to return it to the United States either to be sold or set aside for other public purposes. Id., at 412–413. The 1882 Act bore none of these hallmarks of diminish- ment. The 1882 Act empowered the Secretary to survey and appraise the disputed land, which then could be pur- chased in 160-acre tracts by nonmembers. 22 Stat. 341. The 1882 Act states that the disputed lands would be “open for settlement under such rules and regulations as [the Secretary of the Interior] may prescribe.” Ibid. And the parcels would be sold piecemeal in 160-acre tracts. Ibid. So rather than the Tribe’s receiving a fixed sum for all of the disputed lands, the Tribe’s profits were entirely dependent upon how many nonmembers purchased the appraised tracts of land. From this text, it is clear that the 1882 Act falls into another category of surplus land Acts: those that “merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians’ benefit.” DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 425, 448 (1975). Such schemes allow “non-Indian settlers to own land on the reservation.” Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 356 (1962). But in doing so, they do not diminish the reservation’s boundaries. Our conclusion that Congress did not intend to diminish the reservation in 1882 is confirmed by the text of earlier treaties between the United States and the Tribe. See Mattz v. Arnett, 412 U.S. 481, 504 (1973) (comparing statutory text to earlier bills). In drafting the 1882 Act, Congress legislated against the backdrop of the 1854 and 1865 Treaties—both of which terminated the Tribe’s juris- 8 NEBRASKA v. PARKER Opinion of the Court diction over their land “in unequivocal terms.” Ibid. Those treaties “ced[ed]” the lands and “reliquish[ed]” any claims to them in exchange for a fixed sum. 10 Stat. 1043–1044; see also 14 Stat. 667 (“The Omaha tribe of Indians do hereby cede, sell, and convey to the United States a tract of land from the north side of their present reservation . . . ” (emphasis added)). The 1882 Act speaks in much different terms, both in describing the way the individual parcels were to be sold to nonmembers and the way in which the Tribe would profit from those sales. That 1882 Act also closely tracks the 1872 Act, which petitioners do not contend diminished the reservation. The change in language in the 1882 Act undermines peti- tioners’ claim that Congress intended to do the same with the reservation’s boundaries in 1882 as it did in 1854 and 1865. Petitioners have failed at the first and most im- portant step. They cannot establish that the text of the 1882 Act evinced an intent to diminish the reservation. B We now turn to the history surrounding the passage of the 1882 Act. The mixed historical evidence relied upon by the parties cannot overcome the lack of clear textual signal that Congress intended to diminish the reservation. That historical evidence in no way “unequivocally reveal[s] a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the pro- posed legislation.” Solem, 465 U.S., at 471 (emphasis added); see also Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005) (describing the “often murky, ambiguous, and contradictory” nature of extratex- tual evidence of congressional intent). Petitioners rely largely on isolated statements that some legislators made about the 1882 Act. Senator Henry Dawes of Massachusetts, for example, noted that he had been “assured that [the 1882 Act] would leave an ample Cite as: 577 U. S. ____ (2016) 9 Opinion of the Court reservation” for the Tribe. 13 Cong. Rec. 3032 (1882) (emphasis added). And Senator John Ingalls of Kansas observed “that this bill practically breaks up that portion at least of the reservation which is to be sold, and provides that it shall be disposed of to private purchasers.” Id., at 3028. Whatever value these contemporaneous floor statements might have, other such statements support the opposite conclusion—that Congress never intended to diminish the reservation. Senator Charles Jones of Flor- ida, for example, spoke of “white men purchas[ing] titles to land within this reservation and settl[ing] down with the Indians on it.” Id., at 3078 (emphasis added). Such duel- ing remarks by individual legislators are far from the “clear and plain” evidence of diminishment required under this Court’s precedent. Yankton Sioux, 522 U.S., at 343 (internal quotation marks omitted); see also Solem, 465 U.S., at 478 (noting that it was unclear whether state- ments referring to a “ ‘reduced reservation’ ” alluded to the “reduction in Indian-owned lands that would occur once some of the opened lands were sold to settlers or to the reduction that a complete cession of tribal interests in the opened area would precipitate”). More illuminating than cherry-picked statements by individual legislators would be historical evidence of “the manner in which the transaction was negotiated” with the Omaha Tribe. Id., at 471.1 In Yankton Sioux, for exam- ple, recorded negotiations between the Commissioner of —————— 1 Until this Court’s 1903 decision in Lone Wolf v. Hitchcock, 187 U.S. 553, 566–568, the question whether Congress could unilaterally abro- gate treaties with tribes and divest them of their reservation lands was unsettled. Thus, what the tribe agreed to has been significant in the Court’s diminishment analysis. See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351–353 (1998). Historical evidence of how pre-Lone Wolf sales of lands were negotiated has been deemed compel- ling, whereas historical evidence of negotiations post-Lone Wolf might be less so. See, e.g., Hagen v. Utah, 510 U.S. 399, 416–417 (1994). 10 NEBRASKA v. PARKER Opinion of the Court Indian Affairs and leaders of the Yankton Sioux Tribe unambiguously “signaled [the Tribe’s] understanding that the cession of the surplus lands dissolved tribal govern- ance of the 1858 reservation.” 522 U.S., at 353. No such unambiguous evidence exists in the record of these negoti- ations. In particular, petitioners’ reliance on the remarks of Representative Edward Valentine of Nebraska, who stated, “You cannot find one of those Indians that does not want the western portion sold,” and that the Tribe wished to sell the land to those who would “ ‘reside upon it and cultivate it’ ” so that the Tribe members could “benefit of these improvements,” 13 Cong. Rec. 6541, falls short. Nothing about this statement or other similar statements unequivocally supports a finding that the existing bounda- ries of the reservation would be diminished. C Finally, we consider both the subsequent demographic history of opened lands, which serves as “one additional clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers,” Solem, 465 U.S., at 472, as well as the United States’ “treatment of the affected areas, particularly in the years immediately following the opening,” which has “some evidentiary value,” id., at 471. Our cases suggest that such evidence might “reinforc[e]” a finding of dimin- ishment or nondiminishment based on the text. Mattz, 412 U.S., at 505; see also, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604–605 (1977) (invoking subsequent history to reject a petitioner’s “strained” textual reading of a congressional Act). But this Court has never relied solely on this third consideration to find diminishment. As petitioners have discussed at length, the Tribe was almost entirely absent from the disputed territory for more than 120 years. Brief for Petitioners 24–30. The Omaha Tribe does not enforce any of its regulations— Cite as: 577 U. S. ____ (2016) 11 Opinion of the Court including those governing businesses, fire protection, animal control, fireworks, and wildlife and parks—in Pender or in other locales west of the right-of-way. 996 F. Supp. 2d, at 832. Nor does it maintain an office, provide social services, or host tribal celebrations or ceremonies west of the right-of-way. Ibid. This subsequent demographic history cannot overcome our conclusion that Congress did not intend to diminish the reservation in 1882. And it is not our role to “rewrite” the 1882 Act in light of this subsequent demographic history. DeCoteau, 420 U.S., at 447. After all, evidence of the changing demographics of disputed land is “the least compelling” evidence in our diminishment analysis, for “[e]very surplus land Act necessarily resulted in a surge of non-Indian settlement and degraded the ‘Indian character’ of the reservation, yet we have repeatedly stated that not every surplus land Act diminished the affected reserva- tion.” Yankton Sioux, 522 U.S., at 356. Evidence of the subsequent treatment of the disputed land by Government officials likewise has “limited inter- pretive value.” Id., at 355. Petitioners highlight that, for more than a century and with few exceptions, reports from the Office of Indian Affairs and in opinion letters from Government officials treated the disputed land as Nebras- ka’s. Brief for Petitioners 24–38; see also 996 F. Supp. 2d, at 828, 830. It was not until this litigation commenced that the Department of the Interior definitively changed its position, concluding that the reservation boundaries were in fact not diminished in 1882. See id., at 830–831. For their part, respondents discuss late-19th-century statutes referring to the disputed land as part of the res- ervation, as well as inconsistencies in maps and state- ments by Government officials. Brief for Respondent Omaha Tribal Council et al. 45–52; Brief for United States 38–52; see also 996 F. Supp. 2d, at 827, 832–833. This “mixed record” of subsequent treatment of the disputed 12 NEBRASKA v. PARKER Opinion of the Court land cannot overcome the statutory text, which is devoid of any language indicative of Congress’ intent to diminish. Yankton Sioux, supra, at 356. Petitioners’ concerns about upsetting the “justifiable expectations” of the almost exclusively non-Indian settlers who live on the land are compelling, Rosebud Sioux, supra, at 605, but these expectations alone, resulting from the Tribe’s failure to assert jurisdiction, cannot diminish reservation boundaries. Only Congress has the power to diminish a reservation. DeCoteau, 420 U.S., at 449. And though petitioners wish that Congress would have “spoken differently” in 1882, “we cannot remake history.” Ibid. * * * In light of the statutory text, we hold that the 1882 Act did not diminish the Omaha Indian Reservation. Because petitioners have raised only the single question of dimin- ishment,2 we express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands. Cf. City of Sherrill v. Oneida Indian Nation of N. Y., 544 U.S. 197, 217–221 (2005). The judgment of the Court of Appeals for the Eighth Circuit is affirmed. It is so ordered. —————— 2 See, e.g., Plaintiff’s Brief in Support of Motion for Summary Judg- ment in No. 4:07–cv–03101 (D Neb.), pp. 31, 38 (defendants cannot “impose an alcohol tax and licensing scheme outside the boundaries of the Omaha Reservation”); Plaintiff Intervenor’s Brief in Support of Plaintiff’s Motion for Summary Judgment in No. 4:07–cv–03101 (D Neb.), pp. 1–2; see also Smith v. Parker, 996 F. Supp. 2d 815, 834 (Neb. 2014) (“In this case, I must decide whether Congress’s Act of August 7, 1882 . . . diminished the boundaries of the Omaha Indian Reservation, or whether the Act simply permitted non-Indians to settle within existing Omaha Reservation boundaries”); Smith v. Parker, 774 F.3d 1166, 1167 (CA8 2014) (“Appellants challenge the district court’s determination that the Omaha Indian Reservation was not diminished by an 1882 act of Congress”)

The village of Pender, Nebraska sits a few miles west of an abandoned right-of-way once used by the City and Nebraska Railroad Company. We must decide whether Pender and surrounding Thurston County, Nebraska, are within the boundaries of the Omaha Indian Reserva- tion or whether the passage of an 1882 Act empowering the United States Secretary of the Interior to sell the Tribe’s land west of the right-of-way “diminished” the reservation’s boundaries, thereby “free[ing]” the disputed land of “its reservation status.” v. Bartlett, 465 U.S. 463, 467 (1984). We hold that Congress did not diminish the reservation in 1882 and that the disputed land is within the reservation’s boundaries. I A Centuries ago, the Omaha Tribe settled in present-day eastern Nebraska. By the mid-19th century, the Tribe was destitute and, in exchange for much-needed revenue, agreed to sell a large swath of its land to the United States. In 1854, the Tribe entered into a treaty with the 2 NEBRASKA v. PARKER Opinion of the Court United States to create a 300,000-acre reservation. Treaty with the Omahas (1854 Treaty), Mar. 16, 1854, 10 Stat. 1043. The Tribe agreed to “cede” and “forever relinquish all right and title to” its land west of the Mississippi River, excepting the reservation, in exchange for $840,000, to be paid over 40 years. at 1043–1044. In 1865, after the displaced Wisconsin Winnebago Tribe moved west, the Omaha Tribe agreed to “cede, sell, and convey” an additional 98,000 acres on the north side of the reservation to the United States for the purpose of creat- ing a reservation for the Winnebagoes. Treaty with the Omaha Indians (1865 Treaty), Mar. 6, 1865, – 668. The Tribe sold the land for a fixed sum of $50,000. In 1872, the Tribe again expressed its wish to sell por- tions of the reservation, but Congress took a different tack than it had in the 1854 and 1865 Treaties. Instead of purchasing a portion of the reservation for a fixed sum, Congress authorized the Secretary of the Interior to sur- vey, appraise, and sell up to 50,000 acres on the western side of the reservation “to be separated from the remain- ing portion of said reservation” by a north-south line agreed to by the Tribe and Congress. Act of June 10, 1872 (1872 Act), ch. 436, Under the 1872 Act, a nonmember could purchase “tracts not exceeding one hundred and sixty acres each” or “the entire body offered.” Proceeds from any sales would be “placed to the credit of said Indians on the books of the treasury of the United States.” But the proceeds were meager. The 1872 Act resulted in only two sales totaling 300.72 acres. Then came the 1882 Act, central to the dispute between petitioners and respondents. In that Act, Congress again empowered the Secretary of the Interior “to cause to be surveyed, if necessary, and sold” more than 50,000 acres lying west of a right-of-way granted by the Tribe and approved by the Secretary of the Interior in 1880 for use Cite as: 577 U. S. (2016) 3 Opinion of the Court by the City and Nebraska Railroad Company. Act of Aug. 7, 1882 (1882 Act), The land for sale under the terms of the 1882 Act overlapped substantially with the land Congress tried, but failed, to sell in 1872. Once the land was appraised “in tracts of forty acres each,” the Secretary was “to issue [a] proclamation” that the “lands are open for settlement under such rules and regulations as he may prescribe.” § 2, Within one year of that proclamation, a nonmember could purchase up to 160 acres of land (for no less than $2.50 per acre) in cash paid to the United States, so long as the settler “occup[ied]” it, made “valuable improvements thereon,” and was “a citizen of the United States, or declared his intention to become such.” The proceeds from any land sales, “after paying all ex- penses incident to and necessary for carrying out the provisions of th[e] act,” were to “be placed to the credit of said Indians in the Treasury of the United States.” Interest earned on the proceeds was to be “annu- ally expended for the benefit of said Indians, under the direction of the Secretary of the Interior.” The 1882 Act included a provision, common in the late 19th century, that enabled members of the Tribe to select individual allotments, at 342–343, as a means of encouraging them to depart from the communal lifestyle of the reservation. See The 1882 Act provided that the United States would convey the land to a member or his heirs in fee simple after hold- ing it in trust on behalf of the member and his heirs for 25 years. Members could select allotments on any part of the reservation, either east or west of the right-of-way. After the members selected their allotments—only 10 to 15 of which were located west of the right-of-way—the Secretary proclaimed that the remaining 50,157 acres west of the right-of-way were open for settlement by non- 4 NEBRASKA v. PARKER Opinion of the Court members in April 1884. One of those settlers was W. E. Peebles, who “purchased a tract of 160 acres, on which he platted the townsite for Pender.” 996 F. Supp. 2d 815, 828 (Neb. 2014). B The village of Pender today numbers 1,300 residents. Most are not associated with the Omaha Tribe. Less than 2% of Omaha tribal members have lived west of the right- of-way since the early 20th century. Despite its longstanding absence, the Tribe sought to assert jurisdiction over Pender in 2006 by subjecting Pender retailers to its newly amended Beverage Control Ordinance. The ordinance requires those retailers to obtain a liquor license (costing $500, $1,000, or $1,500 depending upon the class of license) and imposes a 10% sales tax on liquor sales. Nonmembers who violate the ordinance are subject to a $10,000 fine. The village of Pender and Pender retailers, including bars, a bowling alley, and social clubs, brought a federal suit against members of the Omaha Tribal Council in their official capacities to challenge the Tribe’s power to impose the requirements of the Beverage Control Ordinance on nonmembers. Federal law permits the Tribe to regulate liquor sales on its reservation and in “Indian country” so long as the Tribe’s regulations are (as they were here) “certified by the Secretary of the Interior, and published in the Federal Register.” 18 U.S. C. The challengers alleged that they were neither within the boundaries of the Omaha Indian Reservation nor in Indian country and, consequently, were not bound by the ordinance. The State of Nebraska intervened on behalf of the plain- tiffs, and the United States intervened on behalf of the Omaha Tribal Council members. The State’s intervention was prompted, in part, by the Omaha Tribe’s demand that Nebraska share with the Tribe revenue that the State Cite as: 577 U. S. (2016) 5 Opinion of the Court received from fuel taxes imposed west of the right-of-way. In addition to the relief sought by Pender and the Pender retailers, Nebraska sought a permanent injunction prohib- iting the Tribe from asserting tribal jurisdiction over the 50,157 acres west of the abandoned right-of-way. After examining the text of the 1882 Act, as well as the contemporaneous and subsequent understanding of the 1882 Act’s effect on the reservation boundaries, the Dis- trict Court concluded that Congress did not diminish the Omaha Reservation in Accordingly, the District Court denied the plaintiffs’ re- quest for injunctive and declaratory relief barring the Tribe’s enforcement of the Beverage Control Ordinance. The Eighth Circuit affirmed. 774 F.3d 1166, 1168–1169 (2014). We granted certiorari to resolve whether the 1882 Act diminished the Omaha Reservation. 576 U. S. (2015). II We must determine whether Congress “diminished” the Omaha Indian Reservation in If it did so, the State now has jurisdiction over the disputed land. 465 U.S., If Congress, on the other hand, did not diminish the reservation and instead only enabled non- members to purchase land within the reservation, then federal, state, and tribal authorities share jurisdiction over these “opened” but undiminished reservation lands. The framework we employ to determine whether an Indian reservation has been diminished is well settled. –472. “[O]nly Congress can divest a reservation of its land and diminish its boundaries,” and its intent to do so must be clear. To assess whether an Act of Congress diminished a reservation, we start with the statutory text, for “[t]he most probative evidence of dimin- ishment is, of course, the statutory language used to open 6 NEBRASKA v. PARKER Opinion of the Court the Indian lands.” Under our precedents, we “examine all the circumstances surrounding the opening of a reservation.” Because of “the turn-of-the-century assump- tion that Indian reservations were a thing of the past,” many surplus land Acts did not clearly convey “whether opened lands retained reservation status or were divested of all Indian interests.” For that reason, our precedents look to any “unequivocal evi- dence” of the contemporaneous and subsequent under- standing of the status of the reservation by members and nonmembers, as well as the United States and the State of Nebraska. South Dakota v. Yankton Tribe, 522 U.S. 329, 351 A As with any other question of statutory interpretation, we begin with the text of the 1882 Act, the most “probative evidence” of diminishment. ; see, e.g., United 241 (1989) (“The task of resolving the dispute over the meaning of [a statutory text] begins where all such inqui- ries must begin: with the language of the statute itself”). Common textual indications of Congress’ intent to dimin- ish reservation boundaries include “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests” or “an unconditional commitment from Congress to compensate the Indian tribe for its opened land.” Such language “providing for the total surrender of tribal claims in exchange for a fixed payment” evinces Congress’ intent to diminish a reservation, Yankton and creates “an almost insurmountable presumption that Congress meant for the tribe’s reservation to be dimin- ished,” –471. Similarly, a statutory provision restoring portions of a reservation to “the public Cite as: 577 U. S. (2016) 7 Opinion of the Court domain” signifies diminishment. In the 19th century, to restore land to the public domain was to extinguish the land’s prior use—its use, for exam- ple, as an Indian reservation—and to return it to the United States either to be sold or set aside for other public purposes. –413. The 1882 Act bore none of these hallmarks of diminish- ment. The 1882 Act empowered the Secretary to survey and appraise the disputed land, which then could be pur- chased in 160-acre tracts by nonmembers. The 1882 Act states that the disputed lands would be “open for settlement under such rules and regulations as [the Secretary of the Interior] may prescribe.” And the parcels would be sold piecemeal in 160-acre tracts. So rather than the Tribe’s receiving a fixed sum for all of the disputed lands, the Tribe’s profits were entirely dependent upon how many nonmembers purchased the appraised tracts of land. From this text, it is clear that the 1882 Act falls into another category of surplus land Acts: those that “merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians’ benefit.” 448 (1975). Such schemes allow “non-Indian settlers to own land on the reservation.” But in doing so, they do not diminish the reservation’s boundaries. Our conclusion that Congress did not intend to diminish the reservation in 1882 is confirmed by the text of earlier treaties between the United States and the Tribe. See (comparing statutory text to earlier bills). In drafting the 1882 Act, Congress legislated against the backdrop of the 1854 and 1865 Treaties—both of which terminated the Tribe’s juris- 8 NEBRASKA v. PARKER Opinion of the Court diction over their land “in unequivocal terms.” Those treaties “ced[ed]” the lands and “reliquish[ed]” any claims to them in exchange for a fixed sum. 10 Stat. 1043–1044; see (“The Omaha tribe of Indians do hereby cede, sell, and convey to the United States a tract of land from the north side of their present reservation ” ). The 1882 Act speaks in much different terms, both in describing the way the individual parcels were to be sold to nonmembers and the way in which the Tribe would profit from those sales. That 1882 Act closely tracks the 1872 Act, which petitioners do not contend diminished the reservation. The change in language in the 1882 Act undermines peti- tioners’ claim that Congress intended to do the same with the reservation’s boundaries in 1882 as it did in 1854 and 1865. Petitioners have failed at the first and most im- portant step. They cannot establish that the text of the 1882 Act evinced an intent to diminish the reservation. B We now turn to the history surrounding the passage of the 1882 Act. The mixed historical evidence relied upon by the parties cannot overcome the lack of clear textual signal that Congress intended to diminish the reservation. That historical evidence in no way “unequivocally reveal[s] a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the pro- posed legislation.” (emphasis added); see Exxon Mobil (describing the “often murky, ambiguous, and contradictory” nature of extratex- tual evidence of congressional intent). Petitioners rely largely on isolated statements that some legislators made about the 1882 Act. Senator Henry Dawes of Massachusetts, for example, noted that he had been “assured that [the 1882 Act] would leave an ample Cite as: 577 U. S. (2016) 9 Opinion of the Court reservation” for the Tribe. 13 Cong. Rec. 3032 (1882) And Senator John Ingalls of Kansas observed “that this bill practically breaks up that portion at least of the reservation which is to be sold, and provides that it shall be disposed of to private purchasers.” at 3028. Whatever value these contemporaneous floor statements might have, other such statements support the opposite conclusion—that Congress never intended to diminish the reservation. Senator Charles Jones of Flor- ida, for example, spoke of “white men purchas[ing] titles to land within this reservation and settl[ing] down with the Indians on it.” Such duel- ing remarks by individual legislators are far from the “clear and plain” evidence of diminishment required under this Court’s precedent. Yankton 522 U.S., (internal quotation marks omitted); see 465 U.S., at 478 (noting that it was unclear whether state- ments referring to a “ ‘reduced reservation’ ” alluded to the “reduction in Indian-owned lands that would occur once some of the opened lands were sold to settlers or to the reduction that a complete cession of tribal interests in the opened area would precipitate”). More illuminating than cherry-picked statements by individual legislators would be historical evidence of “the manner in which the transaction was negotiated” with the Omaha Tribe.1 In Yankton for exam- ple, recorded negotiations between the Commissioner of —————— 1 Until this Court’s 1903 decision in Lone Wolf v. Hitchcock, 187 U.S. 553, 566–, the question whether Congress could unilaterally abro- gate treaties with tribes and divest them of their reservation lands was unsettled. Thus, what the tribe agreed to has been significant in the Court’s diminishment analysis. See, e.g., South Dakota v. Yankton Tribe, Historical evidence of how pre-Lone Wolf sales of lands were negotiated has been deemed compel- ling, whereas historical evidence of negotiations post-Lone Wolf might be less so. See, e.g., 10 NEBRASKA v. PARKER Opinion of the Court Indian Affairs and leaders of the Yankton Tribe unambiguously “signaled [the Tribe’s] understanding that the cession of the surplus lands dissolved tribal govern- ance of the 1858 reservation.” No such unambiguous evidence exists in the record of these negoti- ations. In particular, petitioners’ reliance on the remarks of Representative Edward Valentine of Nebraska, who stated, “You cannot find one of those Indians that does not want the western portion sold,” and that the Tribe wished to sell the land to those who would “ ‘reside upon it and cultivate it’ ” so that the Tribe members could “benefit of these improvements,” 13 Cong. Rec. 6541, falls short. Nothing about this statement or other similar statements unequivocally supports a finding that the existing bounda- ries of the reservation would be diminished. C Finally, we consider both the subsequent demographic history of opened lands, which serves as “one additional clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers,” as well as the United States’ “treatment of the affected areas, particularly in the years immediately following the opening,” which has “some evidentiary value,” Our cases suggest that such evidence might “reinforc[e]” a finding of dimin- ishment or nondiminishment based on the text. Mattz, ; see e.g., Rosebud Tribe v. Kneip, (invoking subsequent history to reject a petitioner’s “strained” textual reading of a congressional Act). But this Court has never relied solely on this third consideration to find diminishment. As petitioners have discussed at length, the Tribe was almost entirely absent from the disputed territory for more than 120 years. Brief for Petitioners 24–30. The Omaha Tribe does not enforce any of its regulations— Cite as: 577 U. S. (2016) 11 Opinion of the Court including those governing businesses, fire protection, animal control, fireworks, and wildlife and parks—in Pender or in other locales west of the right-of-way. 996 F. Supp. 2d, at 832. Nor does it maintain an office, provide social services, or host tribal celebrations or ceremonies west of the right-of-way. This subsequent demographic history cannot overcome our conclusion that Congress did not intend to diminish the reservation in And it is not our role to “rewrite” the 1882 Act in light of this subsequent demographic history. After all, evidence of the changing demographics of disputed land is “the least compelling” evidence in our diminishment analysis, for “[e]very surplus land Act necessarily resulted in a surge of non-Indian settlement and degraded the ‘Indian character’ of the reservation, yet we have repeatedly stated that not every surplus land Act diminished the affected reserva- tion.” Yankton 522 U.S., at Evidence of the subsequent treatment of the disputed land by Government officials likewise has “limited inter- pretive value.” Petitioners highlight that, for more than a century and with few exceptions, reports from the Office of Indian Affairs and in opinion letters from Government officials treated the disputed land as Nebras- ka’s. Brief for Petitioners 24–38; see 996 F. Supp. 2d, at 828, 830. It was not until this litigation commenced that the Department of the Interior definitively changed its position, concluding that the reservation boundaries were in fact not diminished in See at 830–831. For their part, respondents discuss late-19th-century statutes referring to the disputed land as part of the res- ervation, as well as inconsistencies in maps and state- ments by Government officials. Brief for Respondent Omaha Tribal Council et al. 45–52; Brief for United States 38–52; see 832–833. This “mixed record” of subsequent treatment of the disputed 12 NEBRASKA v. PARKER Opinion of the Court land cannot overcome the statutory text, which is devoid of any language indicative of Congress’ intent to diminish. Yankton at Petitioners’ concerns about upsetting the “justifiable expectations” of the almost exclusively non-Indian settlers who live on the land are compelling, Rosebud at 605, but these expectations alone, resulting from the Tribe’s failure to assert jurisdiction, cannot diminish reservation boundaries. Only Congress has the power to diminish a reservation. And though petitioners wish that Congress would have “spoken differently” in 1882, “we cannot remake history.” * * * In light of the statutory text, we hold that the 1882 Act did not diminish the Omaha Indian Reservation. Because petitioners have raised only the single question of dimin- ishment,2 we express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands. Cf. City of Sherrill v. Oneida Indian Nation of N. Y., 544 U.S. 197, 217–221 The judgment of the Court of Appeals for the Eighth Circuit is affirmed. It is so ordered. —————— 2 See, e.g., Plaintiff’s Brief in Support of Motion for Summary Judg- ment in No. 4:07–cv–03101 (D Neb.), pp. 31, 38 (defendants cannot “impose an alcohol tax and licensing scheme outside the boundaries of the Omaha Reservation”); Plaintiff Intervenor’s Brief in Support of Plaintiff’s Motion for Summary Judgment in No. 4:07–cv–03101 (D Neb.), pp. 1–2; see (Neb. 2014) (“In this case, I must decide whether Congress’s Act of August 7, 1882 diminished the boundaries of the Omaha Indian Reservation, or whether the Act simply permitted non-Indians to settle within existing Omaha Reservation boundaries”); 774 F.3d 1166, 1167 (CA8 2014) (“Appellants challenge the district court’s determination that the Omaha Indian Reservation was not diminished by an 1882 act of Congress”)

Justice Thomas

majority

Wagnon v. Prairie Band Potawatomi Nation

2005-12-06

https://www.courtlistener.com/opinion/1991588/wagnon-v-prairie-band-potawatomi-nation/

https://www.courtlistener.com/api/rest/v3/clusters/1991588/

2005-011

The State of Kansas imposes a tax on the receipt of motor fuel by fuel distributors within its boundaries. Kansas applies that tax to motor fuel received by non-Indian fuel distributors who subsequently deliver that fuel to a gas station owned by, and located on, the Reservation of the Prairie Band Potawatomi Nation (Nation). The Nation maintains that this application of the Kansas motor fuel tax is an impermissible affront to its sovereignty. The Court of Appeals agreed, holding that the application of the Kansas tax to fuel received by a non-Indian distributor, but subsequently delivered to the Nation, was invalid under the interest-balancing test set forth in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). But the Bracker interest-balancing test applies only where "a State asserts authority over the conduct of non-Indians engaging in activity on the reservation." Id., at 144. It does not apply where, as here, a state tax is imposed on a non-Indian and arises as a result of a transaction that occurs off the reservation. Accordingly, we reverse. I The Nation is a federally recognized Indian Tribe whose reservation is on United States trust land in Jackson County, Kansas. The Nation owns and operates a casino on its reservation. In order to accommodate casino patrons and other reservation-related traffic, the Nation constructed, and now owns and operates, a gas station on its reservation next to the casino. Seventy-three percent of the station's fuel sales are made to casino patrons, while 11 percent of the station's fuel sales are made to persons who live or work on the reservation. The Nation purchases fuel for its gas station from non-Indian distributors located off its reservation. Those distributors pay a state fuel tax on their initial receipt of *100 motor fuel, Kan. Stat. Ann. § 79-3408 (2003 Cum. Supp.),[1] and pass along the cost of that tax to their customers, including the Nation.[2] The Nation sells its fuel within 2 cents per gallon of the prevailing market price. Prairie Band Potawatomi Nation v. Richards, 379 F.3d 979, 982 (CA10 2004). It does so notwithstanding the distributor's decision to pass along the cost of the State's fuel tax to the Nation, and the Nation's decision to impose its own tax on the station's fuel sales in the amount of 16 cents per gallon of gasoline and 18 cents per gallon of diesel (increased to 20 cents for gasoline and 22 cents for diesel in January 2003). Ibid. The Nation's fuel tax generates approximately $300,000 annually, funds that the Nation uses for "`constructing and maintaining roads, bridges and rights-of-way located on or near the Reservation,'" including the access road between the state-funded highway and the casino. Ibid. The Nation brought an action in Federal District Court for declaratory judgment and injunctive relief from the State's collection of motor fuel tax from distributors who deliver fuel to the reservation. The District Court granted summary judgment in favor of the State. Applying the Bracker interest-balancing test, it determined that the balance of state, federal, and tribal interests tilted in favor of the State. The court reached this determination because "it is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors," Prairie Band Potawatomi Nation v. Richards, 241 F. Supp. 2d 1295, 1311 (Kan. *101 2003), and because the ultimate purchasers of the fuel, non-Indian casino patrons, receive the bulk of their governmental services from the State, id., at 1309. The court held that the State's tax did not interfere with the Nation's right of self-government, adding that "a tribe cannot oust a state from any power to tax on-reservation purchases by nonmembers of the tribe by simply imposing its own tax on the transactions or by otherwise earning its revenues from the tribal business." Id., at 1311. The Court of Appeals for the Tenth Circuit reversed. 379 F.3d 979 (2004). It determined that, under Bracker, the balance of state, federal, and tribal interests favored the Tribe. The Tenth Circuit reasoned that the Nation's fuel revenues were "derived from value generated primarily on its reservation," 379 F.3d, at 984—namely, the creation of a new fuel market by virtue of the presence of the casino—and that the Nation's interests in taxing this reservation-created value to raise revenue for reservation infrastructure outweighed the State's "general interest in raising revenues," id., at 986. We granted certiorari, 543 U.S. 1186 (2005), and now reverse. II Although we granted certiorari to determine whether Kansas may tax a non-Indian distributor's off-reservation receipt of fuel without being subject to the Bracker interest-balancing test, Pet. for Cert. i, the Nation maintains that Kansas' "tax is imposed not on the off-reservation receipt of fuel, but on its on-reservation sale and delivery," Brief for Respondent 11 (emphasis in original). As the Nation recognizes, under our Indian tax immunity cases, the "who" and the "where" of the challenged tax have significant consequences. We have determined that "[t]he initial and frequently dispositive question in Indian tax cases . . . is who bears the legal incidence of [the] tax," Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 458 (1995) (emphasis added), and that the States are categorically barred *102 from placing the legal incidence of an excise tax "on a tribe or on tribal members for sales made inside Indian country" without congressional authorization, id., at 459 (emphasis added). We have further determined that, even when a State imposes the legal incidence of its tax on a non-Indian seller, the tax may nonetheless be pre-empted if the transaction giving rise to tax liability occurs on the reservation and the imposition of the tax fails to satisfy the Bracker interest-balancing test. See 448 U.S. 136 (holding that state taxes imposed on on-reservation logging and hauling operations by non-Indian contractor are invalid under the interest-balancing test); cf. Central Machinery Co. v. Arizona Tax Comm'n, 448 U.S. 160 (1980) (holding that the Indian trader statutes pre-empted Arizona's tax on a non-Indian seller's on-reservation sales). The Nation maintains that it is entitled to prevail under the categorical bar articulated in Chickasaw because "[t]he fairest reading of the statute is that the legal incidence of the tax actually falls on the Tribe [on the reservation]." Brief for Respondent 17, n. 5. The Nation alternatively maintains it is entitled to prevail even if the legal incidence of the tax is on the non-Indian distributor because, according to the Nation, the tax arises out of a distributor's on-reservation transaction with the Tribe and is therefore subject to the Bracker balancing test. Brief for Respondent 15. We address the "who" and the "where" of Kansas' motor fuel tax in turn. A Kansas law specifies that "the incidence of [the motor fuel] tax is imposed on the distributor of the first receipt of the motor fuel." Kan. Stat. Ann. § 79-3408(c) (2003 Cum. Supp.). We have suggested that such "dispositive language" from the state legislature is determinative of who bears the legal incidence of a state excise tax. Chickasaw, supra, at 461. But even if the state legislature had not employed such "dispositive language," thereby requiring us instead to look *103 to a "fair interpretation of the taxing statute as written and applied," California Bd. of Equalization v. Chemehuevi Tribe, 474 U.S. 9, 11 (1985) (per curiam), we would nonetheless conclude that the legal incidence of the tax is on the distributor. Kansas law makes clear that it is the distributor, rather than the retailer, that is liable to pay the motor fuel tax. Section 79-3410(a) (1997) provides, in relevant part, that "[e]very distributor . . . shall compute and shall pay to the director . . . the amount of [motor fuel] taxes due to the state." While the distributors are "entitled" to pass along the cost of the tax to downstream purchasers, see § 79-3409 (2003 Cum. Supp.), they are not required to do so. In sum, the legal incidence of the Kansas motor fuel tax is on the distributor. The lower courts reached the same conclusion. 379 F.3d, at 982 ("The Kansas legislature structured the tax so that its legal incidence is placed on non-Indian distributors"); 241 F. Supp. 2d, at 1311 ("[I]t is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors"); see also Sac and Fox Nation of Missouri v. Pierce, 213 F.3d 566, 578 (CA10 2000) ("[T]he legal incidence of the [Kansas] tax law as presently written falls on the fuel distributors rather than on the Tribes"); Winnebago Tribe of Nebraska v. Kline, 297 F. Supp. 2d 1291, 1294 (Kan. 2004) ("Under the Kansas statutory scheme, the legal incidence of the state's fuel tax falls on the `distributor of first receipt' of such fuel"); Sac and Fox Nation of Missouri v. LaFaver, 31 F. Supp. 2d 1298, 1307 (Kan. 1998) ("[T]he statutes are extremely clear in providing that the tax in question is imposed upon the distributor"). And the Kansas Department of Revenue, the state agency charged with administering the motor fuel tax, has concluded likewise. See Letter from David J. Heinemann, Office of Administrative Appeals, to Mark A. Burghart, Written Final Determination in Request for Informal Conference for Reconsideration of Agency Action, Davies Oil Co., Inc., Docket No. 01-970 (Jan. 3, 2002) *104 (hereinafter Kansas Dept. of Revenue Letter) ("The legal incidence of the Kansas fuel tax rests with Davies, the distributor, who is up-stream from Nation, the retailer"). The United States, as amicus, contends that this conclusion is foreclosed by the Kansas Supreme Court's decision in Kaul v. State Dept. of Revenue, 266 Kan. 464, 970 P.2d 60 (1998). The United States reads Kaul as holding that the legal incidence of Kansas' motor fuel tax rests on the Indian retailers, rather than on the non-Indian distributors. And, under the United States' view, so long as the Kansas Supreme Court's "`definitive determination as to the operating incidence'" of its fuel tax is "`consistent with the statute's reasonable interpretation,'" it should be "`deemed conclusive.'" Brief for United States as Amicus Curiae 10 (quoting Gurley v. Rhoden, 421 U.S. 200, 208 (1975)). We disagree with the United States' interpretation of Kaul. In Kaul, two members of the Citizen Band Potawatomi Tribe of Oklahoma sought to enjoin the enforcement of Kansas' fuel tax on fuel delivered to their gas station located on the Prairie Band Potawatomi Tribe of Kansas' Reservation. The Kansas Supreme Court determined that the station owners had standing to challenge the tax because the statute provided that the distributor was entitled to "`charge and collect such tax . . . as a part of the selling price.'" Kaul, supra, at 474, 970 P.2d, at 67 (quoting Kan. Stat. Ann. § 79-3409 (1995); emphasis deleted). The court determined that the station owners were not entitled to an injunction, however, because they were not members of a Kansas tribe and thus there had "been no showing by Retailers that payment of fuel tax to Kansas interferes with the self-government of a Kansas tribe or a Kansas tribal member." 266 Kan., at 477, 970 P. 2d, at 69. The court then noted that "the legal incidence of the tax on motor fuel rests on non-tribal members and does not affect the Potawatomi Indian reservation within the state of Kansas." Ibid. *105 Kaul does not foreclose our determination that the distributor bears the legal incidence of the Kansas motor fuel tax. As an initial matter, it is unclear whether the court's reference to "nontribal members" is a reference to the non-tribalmember retailers or the non-tribal-member distributors. At the very least, Kaul's imprecise language cannot be characterized as a definitive determination. Moreover, the 1998 amendments to the Kansas fuel provisions, including the amendment to § 79-3408(c) that provides that "the incidence of this tax is imposed on the distributor," were not applied in Kaul. Id., at 473, 970 P.2d, at 66 (identifying provisions that were repealed in 1998 as being "in effect during the period relevant to this case"); id., at 474, 970 P.2d, at 67 (noting that a "critical statute" to its holding was the 1995 version of § 79-3409, which was amended in 1998). Accordingly, Kaul did not speak authoritatively on the provisions before us today. B The Nation maintains that we must apply the Bracker interest-balancing test, irrespective of the identity of the taxpayer (i. e., the party bearing the legal incidence), because the Kansas fuel tax arises as a result of the on-reservation sale and delivery of the motor fuel. See Brief for Respondent 15. Notably, however, the Nation presented a starkly different interpretation of the statute in the proceedings before the Court of Appeals, arguing that "[t]he balancing test is appropriate even though the legal incidence of the tax is imposed on the Nation's non-Indian distributor and is triggered by the distributor's receipt of fuel outside the reservation." Appellant's Reply Brief in No. 03-3218 (CA10), p. 3 (emphasis added); see also 241 F. Supp. 2d, at 1311 (District Court observing that "it is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors"). A "fair interpretation of the taxing statute as written and applied," Chemehuevi Tribe, 474 U.S., at *106 11, confirms that the Nation's interpretation of the statute before the Court of Appeals was correct. As written, the Kansas fuel tax provisions state that "the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once. Such tax shall be computed on all motor-vehicle fuels or special fuels received by each distributor, manufacturer or importer in this state and paid in the manner provided for herein...." Kan. Stat. Ann. § 79-3408(c) (2003 Cum. Supp.). Under this provision, the distributor who initially receives the motor fuel is liable for payment of the fuel tax, and the distributor's tax liability is determined by calculating the amount of fuel received by the distributor. Section 79-3410(a) (1997) confirms that it is the distributor's off-reservation receipt of the motor fuel, and not any subsequent event, that establishes tax liability. That section provides: "[E]very distributor, manufacturer, importer, exporter or retailer of motor-vehicle fuels or special fuels, on or before the 25th day of each month, shall render to the director . . . a report certified to be true and correct showing the number of gallons of motor-vehicle fuels or special fuels received by such distributor, manufacturer, importer, exporter or retailer during the preceding calendar month . . . . Every distributor, manufacturer or importer within the time herein fixed for the rendering of such reports, shall compute and shall pay to the director at the director's office the amount of taxes due to the state on all motor-vehicle fuels or special fuels received by such distributor, manufacturer or importer during the preceding calendar month." Thus, Kansas law expressly provides that a distributor's monthly tax obligations are determined by the amount of fuel received by the distributor during the preceding month. See Kline, 297 F. Supp. 2d, at 1294 ("The distributor must *107 compute and remit the tax each month for the fuel received by the distributor in the State of Kansas"). The Nation disagrees. It contends that what is taxed is not the distributors' (off-reservation) receipt of the fuel, but rather the distributors' use, sale, or delivery of the motor fuel—in this case, the distributors' (on-reservation) sale or delivery to the Nation. The Nation grounds support for this proposition in § 79-3408(a) (2003 Cum. Supp.). That section provides that "[a] tax . . . is hereby imposed on the use, sale or delivery of all motor vehicle fuels or special fuels which are used, sold or delivered in this state for any purpose whatsoever." But this section cannot be read in isolation. If it were, it would permit Kansas to tax the same fuel multiple times—namely, every time fuel is sold, delivered, or used. Section 79-3408(a) must be read in conjunction with subsection (c), which specifies that "the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once." (Emphasis added.) The identity of the single, taxable event is revealed in the very next sentence of subsection (c), which provides that "[s]uch tax shall be computed on all . . . fuels received by each distributor." (Emphasis added.) In short, the "use, sale or delivery" that triggers tax liability is the sale or delivery of the fuel to the distributor. The Kansas Department of Revenue has issued a final determination reaching the same conclusion. See Kansas Dept. of Revenue Letter ("[P]ursuant to the Kansas Motor Fuel Tax Act . . . the state fuel tax was imposed on Davies, a distributor, when Davies first received the fuel at its business, a site located off of Nation's reservation" (emphasis added)). The Nation claims further support for its interpretation of the statute in § 79-3408(d) (2003 Cum. Supp.). Section 79-3408(d) permits distributors to obtain deductions from the Kansas motor fuel tax for certain postreceipt transactions, such as sale or delivery of fuel for export from the State and sale or delivery of fuel to the United States. *108 §§ 79-3408(d)(1)-(2). The Nation argues that these exemptions make it impossible for a distributor to calculate its "ultimate tax liability" without knowing "whether, where, and to whom the fuel is ultimately sold or delivered." Brief for Respondent 15. The Nation infers from these provisions that the taxable event is actually the distributors' postreceipt delivery of fuel to retailers such as the Nation, rather than the distributors' initial receipt of the fuel. The Nation's theory suffers from a number of conceptual defects. First, under Kansas law, a distributor must pay the tax even for fuel that sits in its inventory—fuel that is not (or at least has not yet been) used, sold, or delivered by the distributor.[3] But the Nation's interpretation presumes that the tax is owed only on a distributor's postreceipt use, sale, or delivery of fuel. As this interpretation cannot be reconciled with the manner in which the Kansas motor fuel tax is *109 actually applied, it must be rejected.[4] Second, the availability of tax deductions does not change the nature of the taxable event, here the distributor's receipt of the fuel. By analogy, an individual federal income taxpayer may reduce his tax liability by paying home mortgage interest. But that entitlement does not render the taxable event anything other than the receipt of income by the taxpayer. See 26 U.S.C. § 1 (2000 ed. and Supp. II), § 163(h) (2000 ed.); cf. North American Oil Consol. v. Burnet, 286 U.S. 417, 424 (1932) (federal income tax liability arises when "a taxpayer. . . has received income"). Finally, the Nation contends that its interpretation of the statute is supported by Kan. Stat. Ann. § 79-3417 (1997), which permits a refund—in certain circumstances—for destroyed fuel. However, the Nation's interpretation is actually foreclosed by that section. Section 79-3417 entitles a distributor to a "refund from the state of the amount of motor-vehicle fuels or special fuels tax paid on any . . . fuels of 100 gallons or more in quantity, which are lost or destroyed at any one time while such distributor is the owner thereof," provided the distributor supplies the required notification and documentation to the State. This section illustrates that a distributor pays taxes for fuel in its possession that it has not delivered or sold, and is only entitled to the refund described in this section for tax it has already paid *110 on fuel that is subsequently destroyed. While this section does not specify the event that gives rise to the distributor's tax liability, it forecloses the Nation's contention that such liability does not arise until fuel is sold or delivered to a nonexempt entity. III Although Kansas' fuel tax is imposed on non-Indian distributors based upon those distributors' off-reservation receipt of motor fuel, the Tenth Circuit concluded that the tax was nevertheless still subject to the interest-balancing test this Court set forth in Bracker, 448 U.S. 136. As Bracker itself explained, however, we formulated the balancing test to address the "difficult questio[n]" that arises when "a State asserts authority over the conduct of non-Indians engaging in activity on the reservation." Id., at 144-145 (emphasis added). The Bracker interest-balancing test has never been applied where, as here, the State asserts its taxing authority over non-Indians off the reservation. And although we have never addressed this precise issue, our Indian tax immunity cases counsel against such an application. A We have applied the balancing test articulated in Bracker only where "the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members," Arizona Dept. of Revenue v. Blaze Constr. Co., 526 U.S. 32, 37 (1999), on the reservation. See Bracker, supra (motor carrier license and use fuel taxes imposed on on-reservation logging and hauling operations by non-Indian contractor); Department of Taxation and Finance of N. Y. v. Milhelm Attea & Bros., 512 U.S. 61 (1994) (various taxes imposed on non-Indian purchasers of goods retailed on-reservation); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (state severance tax imposed on non-Indian lessee's on-reservation production of oil and gas); Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 *111 U.S. 832 (1982) (state gross receipts tax imposed on private contractor's proceeds from the construction of a school on the reservation); Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134 (1980) (cigarette and sales taxes imposed on on-reservation purchases by nonmembers); Central Machinery Co., 448 U.S. 160 (tax imposed on on-reservation sale of farm machinery to Tribe). Similarly, the cases identified in Bracker as supportive of the balancing test were exclusively concerned with the on-reservation conduct of non-Indians. See Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685 (1965) (gross proceeds tax imposed on non-Indian retailer on Navajo Indian Reservation); Thomas v. Gay, 169 U.S. 264 (1898) (state property tax imposed on cattle owned by non-Indian lessees of tribal land); Williams v. Lee, 358 U.S. 217 (1959) (holding the state courts lacked jurisdiction over dispute between non-Indian, on-reservation retailer and Indian debtors).[5] *112 Limiting the interest-balancing test exclusively to on-reservation transactions between a nontribal entity and a tribe or tribal member is consistent with our unique Indian tax immunity jurisprudence. We have explained that this jurisprudence relies "heavily on the doctrine of tribal sovereignty. . . which historically gave state law `no role to play' within a tribe's territorial boundaries." Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 123-124 (1993) (quoting McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 168 (1973)). We have further explained that the doctrine of tribal sovereignty, which has a "significant geographical component," Bracker, supra, at 151, requires us to "revers[e]" the "`general rule'" that "`exemptions from tax laws should ... be clearly expressed.'" Sac and Fox, supra, at 124 (quoting McClanahan, supra, at 176). And we have determined that the geographical component of tribal sovereignty "`provide[s] a backdrop against which the applicable treaties and federal statutes must be read.'" Sac and Fox, supra, at 124 (quoting McClanahan, supra, at 172). Indeed, the particularized inquiry we set forth in Bracker relied specifically on that backdrop. See 448 U.S., at 144-145 (noting that where "a State asserts authority over the conduct of non-Indians engaging in activity on the reservation . . . we have examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence" (emphasis added)). We have taken an altogether different course, by contrast, when a State asserts its taxing authority outside of Indian country. Without applying the interest-balancing test, we *113 have permitted the taxation of the gross receipts of an off-reservation, Indian-owned ski resort, Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973), and the taxation of income earned by Indians working on reservation but living off reservation, Chickasaw, 515 U.S. 450. In these cases, we have concluded that "[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State." Mescalero Apache, supra, at 148-149; Chickasaw, supra, at 465 (quoting Mescalero Apache, supra, at 148-149). If a State may apply a nondiscriminatory tax to Indians who have gone beyond the boundaries of the reservation, then it follows that it may apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction. In these circumstances, the interest-balancing test set forth in Bracker is inapplicable. Cf. Blaze Constr., 526 U.S., at 37 (declining to apply the Bracker interest-balancing test "where a State seeks to tax a transaction [on reservation] between the Federal Government and its non-Indian private contractor"). The application of the interest-balancing test to the Kansas motor fuel tax is not only inconsistent with the special geographic sovereignty concerns that gave rise to that test, but also with our efforts to establish "bright-line standard[s]" in the context of tax administration. 526 U.S., at 37 ("The need to avoid litigation and to ensure efficient tax administration counsels in favor of a bright-line standard for taxation of federal contracts, regardless of whether the contracted-for activity takes place on Indian reservations"); cf. Chickasaw, supra, at 460 (noting that the legal incidence test "`provide[s] a reasonably bright-line standard'"); County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 267-268 (1992). Indeed, we have recognized that the Bracker interest-balancing test *114 "only cloud[s]" our efforts to establish such standards. Blaze Constr., supra, at 37. Under the Nation's view, however, any off-reservation tax imposed on the manufacture or sale of any good imported by the Nation or one of its members would be subject to interest balancing. Such an expansion of the application of the Bracker test is not supported by our cases. Nor is the Nation entitled to interest balancing by virtue of its claim that the Kansas motor fuel tax interferes with its own motor fuel tax. As an initial matter, this is ultimately a complaint about the downstream economic consequences of the Kansas tax. As the owner of the station, the Nation will keep every dollar it collects above its operating costs. Given that the Nation sells gas at prevailing market rates, its decision to impose a tax should have no effect on its net revenues from the operation of the station; it should not matter whether those revenues are labeled "profits" or "tax proceeds." The Nation merely seeks to increase those revenues by purchasing untaxed fuel. But the Nation cannot invalidate the Kansas tax by complaining about a decrease in revenues. See Colville, 447 U.S., at 156 ("Washington does not infringe the right of reservation Indians to `make their own laws and be ruled by them,' Williams v. Lee, 358 U.S. 217, 220 (1959), merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving"). Nor would our analysis change if we accorded legal significance to the Nation's decision to label a portion of the station's revenues as tax proceeds. See id., at 184, n. 9 (Rehnquist, J., concurring in part, concuring in result in part, and dissenting in part) ("When two sovereigns have legitimate authority to tax the same transaction, exercise of that authority by one sovereign does not oust the jurisdiction of the other. If it were otherwise, we would not be obligated to pay federal as well as state taxes on our income or gasoline purchases. Economic burdens on *115 the competing sovereign . . . do not alter the concurrent nature of the taxing authority").[6] B Finally, the Nation contends that the Kansas motor fuel tax is invalid notwithstanding the inapplicability of the interest-balancing test, because it "exempts from taxation fuel sold or delivered to all other sovereigns," and is therefore impermissibly discriminatory. Brief for Respondent 17-20 (emphasis deleted); Kan. Stat. Ann. §§ 79-3408(d)(1)-(2) (2003 Cum. Supp.). But the Nation is not similarly situated to the sovereigns exempted from the Kansas fuel tax. While Kansas uses the proceeds from its fuel tax to pay for a significant portion of the costs of maintaining the roads and bridges on the Nation's reservation, including the main highway used by the Nation's casino patrons, Kansas offers no such services to the several States or the Federal Government. Moreover, to the extent Kansas fuel retailers bear the cost of the fuel tax, that burden falls equally upon all retailers within the State regardless of whether those retailers are located on an Indian reservation. Accordingly, the Kansas motor fuel tax is not impermissibly discriminatory. * * * For the foregoing reasons, we hold that the Kansas motor fuel tax is a nondiscriminatory tax imposed on an off-reservation transaction between non-Indians. Accordingly, the tax is valid and poses no affront to the Nation's sovereignty. The judgment of the Court of Appeals is reversed. It is so ordered.

The State of Kansas imposes a tax on the receipt of motor fuel by fuel distributors within its boundaries. Kansas applies that tax to motor fuel received by non-Indian fuel distributors who subsequently deliver that fuel to a gas station owned by, and located on, the Reservation of the Prairie Band Potawatomi Nation (Nation). The Nation maintains that this application of the Kansas motor fuel tax is an impermissible affront to its sovereignty. The Court of Appeals agreed, holding that the application of the Kansas tax to fuel received by a non-Indian distributor, but subsequently delivered to the Nation, was invalid under the interest-balancing test set forth in White Mountain But the interest-balancing test applies only where "a State asserts authority over the conduct of non-Indians engaging in activity on the reservation." It does not apply where, as here, a state tax is imposed on a non-Indian and arises as a result of a transaction that occurs off the reservation. Accordingly, we reverse. I The Nation is a federally recognized Indian Tribe whose reservation is on United States trust land in Jackson County, Kansas. The Nation owns and operates a casino on its reservation. In order to accommodate casino patrons and other reservation-related traffic, the Nation constructed, and now owns and operates, a gas station on its reservation next to the casino. Seventy-three percent of the station's fuel sales are made to casino patrons, while percent of the station's fuel sales are made to persons who live or work on the reservation. The Nation purchases fuel for its gas station from non-Indian distributors located off its reservation. Those distributors pay a state fuel tax on their initial receipt of *100 motor fuel, ( Cum. Supp.),[1] and pass along the cost of that tax to their customers, including the Nation.[2] The Nation sells its fuel within 2 cents per gallon of the prevailing market price. Prairie Band Potawatomi It does so notwithstanding the distributor's decision to pass along the cost of the State's fuel tax to the Nation, and the Nation's decision to impose its own tax on the station's fuel sales in the amount of 16 cents per gallon of gasoline and 18 cents per gallon of diesel The Nation's fuel tax generates approximately $300,000 annually, funds that the Nation uses for "`constructing and maintaining roads, bridges and rights-of-way located on or near the Reservation,'" including the access road between the state-funded highway and the casino. The Nation brought an action in Federal District Court for declaratory judgment and injunctive relief from the State's collection of motor fuel tax from distributors who deliver fuel to the reservation. The District Court granted summary judgment in favor of the State. Applying the interest-balancing test, it determined that the balance of state, federal, and tribal interests tilted in favor of the State. The court reached this determination because "it is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors," Prairie Band Potawatomi and because the ultimate purchasers of the fuel, non-Indian casino patrons, receive the bulk of their governmental services from the State, The court held that the State's tax did not interfere with the Nation's right of self-government, adding that "a tribe cannot oust a state from any power to tax on-reservation purchases by nonmembers of the tribe by simply imposing its own tax on the transactions or by otherwise earning its revenues from the tribal business." at The Court of Appeals for the Tenth Circuit reversed. It determined that, under the balance of state, federal, and tribal interests favored the Tribe. The Tenth Circuit reasoned that the Nation's fuel revenues were "derived from value generated primarily on its reservation," —namely, the creation of a new fuel market by virtue of the presence of the casino—and that the Nation's interests in taxing this reservation-created value to raise revenue for reservation infrastructure outweighed the State's "general interest in raising revenues," We granted certiorari, and now reverse. II Although we granted certiorari to determine whether Kansas may tax a non-Indian distributor's off-reservation receipt of fuel without being subject to the interest-balancing test, Pet. for Cert. i, the Nation maintains that Kansas' "tax is imposed not on the off-reservation receipt of fuel, but on its on-reservation sale and delivery," Brief for Respondent (emphasis in original). As the Nation recognizes, under our Indian tax immunity cases, the "who" and the "where" of the challenged tax have significant consequences. We have determined that "[t]he initial and frequently dispositive question in Indian tax cases is who bears the legal incidence of [the] tax," Oklahoma Tax and that the States are categorically barred *102 from placing the legal incidence of an excise tax "on a tribe or on tribal members for sales made inside Indian country" without congressional authorization, We have further determined that, even when a State imposes the legal incidence of its tax on a non-Indian seller, the tax may nonetheless be pre-empted if the transaction giving rise to tax liability occurs on the reservation and the imposition of the tax fails to satisfy the interest-balancing test. See (holding that state taxes imposed on on-reservation logging and hauling operations by non-Indian contractor are invalid under the interest-balancing test); cf. Central Machinery The Nation maintains that it is entitled to prevail under the categorical bar articulated in because "[t]he fairest reading of the statute is that the legal incidence of the tax actually falls on the Tribe [on the reservation]." Brief for Respondent 17, n. 5. The Nation alternatively maintains it is entitled to prevail even if the legal incidence of the tax is on the non-Indian distributor because, according to the Nation, the tax arises out of a distributor's on-reservation transaction with the Tribe and is therefore subject to the balancing test. Brief for Respondent 15. We address the "who" and the "where" of Kansas' motor fuel tax in turn. A Kansas law specifies that "the incidence of [the motor fuel] tax is imposed on the distributor of the first receipt of the motor fuel." (c) ( Cum. Supp.). We have suggested that such "dispositive language" from the state legislature is determinative of who bears the legal incidence of a state excise tax. But even if the state legislature had not employed such "dispositive language," thereby requiring us instead to look *103 to a "fair interpretation of the taxing statute as written and applied," California Bd. of we would nonetheless conclude that the legal incidence of the tax is on the distributor. Kansas law makes clear that it is the distributor, rather than the retailer, that is liable to pay the motor fuel tax. Section 79-3410(a) (1997) provides, in relevant part, that "[e]very distributor shall compute and shall pay to the director the amount of [motor fuel] taxes due to the state." While the distributors are "entitled" to pass along the cost of the tax to downstream purchasers, see 79-3409 ( Cum. Supp.), they are not required to do so. In sum, the legal incidence of the Kansas motor fuel tax is on the distributor. The lower courts reached the same 9 F.3d, at ; 241 F. Supp. 2d, at ; see Sac and Nation of ; Winnebago Tribe of ; Sac and Nation of And the Kansas Department of Revenue, the state agency charged with administering the motor fuel tax, has concluded likewise. See Letter from David J. Heinemann, Office of Administrative Appeals, to Mark A. Burghart, Written Final Determination in Request for Informal Conference for Reconsideration of Agency Action, Davies Oil Co., Inc., Docket No. 01-970 (Jan. 3, 2002) *104 (hereinafter Kansas Dept. of Revenue Letter) ("The legal incidence of the Kansas fuel tax rests with Davies, the distributor, who is up-stream from Nation, the retailer"). The United States, as amicus, contends that this conclusion is foreclosed by the Kansas Supreme Court's decision in The United States reads Kaul as holding that the legal incidence of Kansas' motor fuel tax rests on the Indian retailers, rather than on the non-Indian distributors. And, under the United States' view, so long as the Kansas Supreme Court's "`definitive determination as to the operating incidence'" of its fuel tax is "`consistent with the statute's reasonable interpretation,'" it should be "`deemed conclusive.'" Brief for United States as Amicus Curiae 10 ). We disagree with the United States' interpretation of Kaul. In Kaul, two members of the Citizen Band Potawatomi Tribe of Oklahoma sought to enjoin the enforcement of Kansas' fuel tax on fuel delivered to their gas station located on the Prairie Band Potawatomi Tribe of Kansas' Reservation. The Kansas Supreme Court determined that the station owners had standing to challenge the tax because the statute provided that the distributor was entitled to "`charge and collect such tax as a part of the selling price.'" Kaul, ; emphasis deleted). The court determined that the station owners were not entitled to an injunction, however, because they were not members of a Kansas tribe and thus there had "been no showing by Retailers that payment of fuel tax to Kansas interferes with the self-government of a Kansas tribe or a Kansas tribal member." 970 P. 2d, at 69. The court then noted that "the legal incidence of the tax on motor fuel rests on non-tribal members and does not affect the Potawatomi Indian reservation within the state of Kansas." *105 Kaul does not foreclose our determination that the distributor bears the legal incidence of the Kansas motor fuel tax. As an initial matter, it is unclear whether the court's reference to "nontribal members" is a reference to the non-tribalmember retailers or the non-tribal-member distributors. At the very least, Kaul's imprecise language cannot be characterized as a definitive determination. Moreover, the amendments to the Kansas fuel provisions, including the amendment to 79-3408(c) that provides that "the incidence of this tax is imposed on the distributor," were not applied in Kaul. (identifying provisions that were repealed in as being "in effect during the period relevant to this case"); Accordingly, Kaul did not speak authoritatively on the provisions before us today. B The Nation maintains that we must apply the interest-balancing test, irrespective of the identity of the taxpayer (i. e., the party bearing the legal incidence), because the Kansas fuel tax arises as a result of the on-reservation sale and delivery of the motor fuel. See Brief for Respondent 15. Notably, however, the Nation presented a starkly different interpretation of the statute in the proceedings before the Court of Appeals, arguing that "[t]he balancing test is appropriate even though the legal incidence of the tax is imposed on the Nation's non-Indian distributor and is triggered by the distributor's receipt of fuel outside the reservation." Appellant's Reply Brief in No. 03-3218 (CA10), p. 3 ; see 241 F. Supp. 2d, at A "fair interpretation of the taxing statute as written and applied," Chemehuevi Tribe, U.S., at *106 confirms that the Nation's interpretation of the statute before the Court of Appeals was correct. As written, the Kansas fuel tax provisions state that "the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once. Such tax shall be computed on all motor-vehicle fuels or special fuels received by each distributor, manufacturer or importer in this state and paid in the manner provided for herein." (c) ( Cum. Supp.). Under this provision, the distributor who initially receives the motor fuel is liable for payment of the fuel tax, and the distributor's tax liability is determined by calculating the amount of fuel received by the distributor. Section 79-3410(a) (1997) confirms that it is the distributor's off-reservation receipt of the motor fuel, and not any subsequent event, that establishes tax liability. That section provides: "[E]very distributor, manufacturer, importer, exporter or retailer of motor-vehicle fuels or special fuels, on or before the 25th day of each month, shall render to the director a report certified to be true and correct showing the number of gallons of motor-vehicle fuels or special fuels received by such distributor, manufacturer, importer, exporter or retailer during the preceding calendar month Every distributor, manufacturer or importer within the time herein fixed for the rendering of such reports, shall compute and shall pay to the director at the director's office the amount of taxes due to the state on all motor-vehicle fuels or special fuels received by such distributor, manufacturer or importer during the preceding calendar month." Thus, Kansas law expressly provides that a distributor's monthly tax obligations are determined by the amount of fuel received by the distributor during the preceding month. See 297 F. Supp. 2d, at The Nation disagrees. It contends that what is taxed is not the distributors' (off-reservation) receipt of the fuel, but rather the distributors' use, sale, or delivery of the motor fuel—in this case, the distributors' (on-reservation) sale or delivery to the Nation. The Nation grounds support for this proposition in 79-3408(a) ( Cum. Supp.). That section provides that "[a] tax is hereby imposed on the use, sale or delivery of all motor vehicle fuels or special fuels which are used, sold or delivered in this state for any purpose whatsoever." But this section cannot be read in isolation. If it were, it would permit Kansas to tax the same fuel multiple times—namely, every time fuel is sold, delivered, or used. Section 79-3408(a) must be read in conjunction with subsection (c), which specifies that "the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once." (Emphasis added.) The identity of the single, taxable event is revealed in the very next sentence of subsection (c), which provides that "[s]uch tax shall be computed on all fuels received by each distributor." (Emphasis added.) In short, the "use, sale or delivery" that triggers tax liability is the sale or delivery of the fuel to the distributor. The Kansas Department of Revenue has issued a final determination reaching the same See Kansas Dept. of Revenue Letter ("[P]ursuant to the Kansas Motor Fuel Tax Act the state fuel tax was imposed on Davies, a distributor, when Davies first received the fuel at its business, a site located off of Nation's reservation" ). The Nation claims further support for its interpretation of the statute in 79-3408(d) ( Cum. Supp.). Section 79-3408(d) permits distributors to obtain deductions from the Kansas motor fuel tax for certain postreceipt transactions, such as sale or delivery of fuel for export from the State and sale or delivery of fuel to the United States. *108 79-3408(d)(1)-(2). The Nation argues that these exemptions make it impossible for a distributor to calculate its "ultimate tax liability" without knowing "whether, where, and to whom the fuel is ultimately sold or delivered." Brief for Respondent 15. The Nation infers from these provisions that the taxable event is actually the distributors' postreceipt delivery of fuel to retailers such as the Nation, rather than the distributors' initial receipt of the fuel. The Nation's theory suffers from a number of conceptual defects. First, under Kansas law, a distributor must pay the tax even for fuel that sits in its inventory—fuel that is not (or at least has not yet been) used, sold, or delivered by the distributor.[3] But the Nation's interpretation presumes that the tax is owed only on a distributor's postreceipt use, sale, or delivery of fuel. As this interpretation cannot be reconciled with the manner in which the Kansas motor fuel tax is *109 actually applied, it must be rejected.[4] Second, the availability of tax deductions does not change the nature of the taxable event, here the distributor's receipt of the fuel. By analogy, an individual federal income taxpayer may reduce his tax liability by paying home mortgage interest. But that entitlement does not render the taxable event anything other than the receipt of income by the taxpayer. See 26 U.S.C. 1 ( ed. and Supp. II), 163(h) ( ed.); cf. North American Oil Finally, the Nation contends that its interpretation of the statute is supported by Kan. Stat. Ann. 79-3417 (1997), which permits a refund—in certain circumstances—for destroyed fuel. However, the Nation's interpretation is actually foreclosed by that section. Section 79-3417 entitles a distributor to a "refund from the state of the amount of motor-vehicle fuels or special fuels tax paid on any fuels of 100 gallons or more in quantity, which are lost or destroyed at any one time while such distributor is the owner thereof," provided the distributor supplies the required notification and documentation to the State. This section illustrates that a distributor pays taxes for fuel in its possession that it has not delivered or sold, and is only entitled to the refund described in this section for tax it has already paid *0 on fuel that is subsequently destroyed. While this section does not specify the event that gives rise to the distributor's tax liability, it forecloses the Nation's contention that such liability does not arise until fuel is sold or delivered to a nonexempt entity. III Although Kansas' fuel tax is imposed on non-Indian distributors based upon those distributors' off-reservation receipt of motor fuel, the Tenth Circuit concluded that the tax was nevertheless still subject to the interest-balancing test this Court set forth in As itself explained, however, we formulated the balancing test to address the "difficult questio[n]" that arises when "a State asserts authority over the conduct of non-Indians engaging in activity on the reservation." -145 The interest-balancing test has never been applied where, as here, the State asserts its taxing authority over non-Indians off the reservation. And although we have never addressed this precise issue, our Indian tax immunity cases counsel against such an application. A We have applied the balancing test articulated in only where "the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members," Arizona Dept. of on the reservation. See ; Department of Taxation and Finance of N. ; Cotton Petroleum ; Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., *1 U.S. 832 (1) ; ; Central Machinery Co., (tax imposed on on-reservation sale of farm machinery to Tribe). Similarly, the cases identified in as supportive of the balancing test were exclusively concerned with the on-reservation conduct of non-Indians. See Warren Trading Post ; ;[5] *2 Limiting the interest-balancing test exclusively to on-reservation transactions between a nontribal entity and a tribe or tribal member is consistent with our unique Indian tax immunity jurisprudence. We have explained that this jurisprudence relies "heavily on the doctrine of tribal sovereignty. which historically gave state law `no role to play' within a tribe's territorial boundaries." Oklahoma Tax 508 U.S. 4, ). We have further explained that the doctrine of tribal sovereignty, which has a "significant geographical component," requires us to "revers[e]" the "`general rule'" that "`exemptions from tax laws should be clearly expressed.'" Sac and (quoting ). And we have determined that the geographical component of tribal sovereignty "`provide[s] a backdrop against which the applicable treaties and federal statutes must be read.'" Sac and (quoting ). Indeed, the particularized inquiry we set forth in relied specifically on that backdrop. See 448 U.S., -145 (noting that where "a State asserts authority over the conduct of non-Indians engaging in activity on the reservation we have examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence" ). We have taken an altogether different course, by contrast, when a State asserts its taxing authority outside of Indian country. Without applying the interest-balancing test, we *3 have permitted the taxation of the gross receipts of an off-reservation, Indian-owned ski resort, Mescalero 4 U.S. 145 and the taxation of income earned by Indians working on reservation but living off reservation, In these cases, we have concluded that "[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State." Mescalero ; (quoting Mescalero ). If a State may apply a nondiscriminatory tax to Indians who have gone beyond the boundaries of the reservation, then it follows that it may apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction. In these circumstances, the interest-balancing test set forth in is inapplicable. Cf. Blaze 526 U.S., at (declining to apply the interest-balancing test "where a State seeks to tax a transaction [on reservation] between the Federal Government and its non-Indian private contractor"). The application of the interest-balancing test to the Kansas motor fuel tax is not only inconsistent with the special geographic sovereignty concerns that gave rise to that test, but with our efforts to establish "bright-line standard[s]" in the context of tax 526 U.S., at ; cf. ; County of Indeed, we have recognized that the interest-balancing test *4 "only cloud[s]" our efforts to establish such standards. Blaze at Under the Nation's view, however, any off-reservation tax imposed on the manufacture or sale of any good imported by the Nation or one of its members would be subject to interest balancing. Such an expansion of the application of the test is not supported by our cases. Nor is the Nation entitled to interest balancing by virtue of its claim that the Kansas motor fuel tax interferes with its own motor fuel tax. As an initial matter, this is ultimately a complaint about the downstream economic consequences of the Kansas tax. As the owner of the station, the Nation will keep every dollar it collects above its operating costs. Given that the Nation sells gas at prevailing market rates, its decision to impose a tax should have no effect on its net revenues from the operation of the station; it should not matter whether those revenues are labeled "profits" or "tax proceeds." The Nation merely seeks to increase those revenues by purchasing untaxed fuel. But the Nation cannot invalidate the Kansas tax by complaining about a decrease in revenues. See merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving"). Nor would our analysis change if we accorded legal significance to the Nation's decision to label a portion of the station's revenues as tax proceeds. See ("When two sovereigns have legitimate authority to tax the same transaction, exercise of that authority by one sovereign does not oust the jurisdiction of the other. If it were otherwise, we would not be obligated to pay federal as well as state taxes on our income or gasoline purchases. Economic burdens on *5 the competing sovereign do not alter the concurrent nature of the taxing authority").[6] B Finally, the Nation contends that the Kansas motor fuel tax is invalid notwithstanding the inapplicability of the interest-balancing test, because it "exempts from taxation fuel sold or delivered to all other sovereigns," and is therefore impermissibly discriminatory. Brief for Respondent 17-20 (emphasis deleted); Kan. Stat. Ann. 79-3408(d)(1)-(2) ( Cum. Supp.). But the Nation is not similarly situated to the sovereigns exempted from the Kansas fuel tax. While Kansas uses the proceeds from its fuel tax to pay for a significant portion of the costs of maintaining the roads and bridges on the Nation's reservation, including the main highway used by the Nation's casino patrons, Kansas offers no such services to the several States or the Federal Government. Moreover, to the extent Kansas fuel retailers bear the cost of the fuel tax, that burden falls equally upon all retailers within the State regardless of whether those retailers are located on an Indian reservation. Accordingly, the Kansas motor fuel tax is not impermissibly discriminatory. * * * For the foregoing reasons, we hold that the Kansas motor fuel tax is a nondiscriminatory tax imposed on an off-reservation transaction between non-Indians. Accordingly, the tax is valid and poses no affront to the Nation's sovereignty. The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Ginsburg

dissenting

Wagnon v. Prairie Band Potawatomi Nation

2005-12-06

https://www.courtlistener.com/opinion/1991588/wagnon-v-prairie-band-potawatomi-nation/

https://www.courtlistener.com/api/rest/v3/clusters/1991588/

2005-011

The Kansas fuel tax at issue is imposed on distributors, passed on to retailers, and ultimately paid by gas station customers. Out-of-state sales are exempt, as are sales to other distributors, the United States, and U.S. Government contractors. Fuel lost or destroyed, and thus not sold, is also exempt. But no statutory exception attends sales to Indian tribes or their members. Kan. Stat. Ann. §§ 79-3408; 79-3409; 79-3417 (1997 and 2003 Cum. Supp.). The Prairie Band Potawatomi Nation (hereinafter Nation) maintains a casino and related facilities on its reservation. On nearby tribal land, as an adjunct to its casino, the Nation built, owns, and operates a gas station known as the Nation Station. Some 73% of the Nation Station's customers are casino patrons or employees. Prairie Band Potawatomi Nation v. Richards, 379 F.3d 979, 982 (CA10 2004). The Nation imposes its own tax on fuel sold at the Nation Station, pennies per gallon less than Kansas' tax. Ibid.[1] Both the Nation and the State have authority to tax fuel sales at the Nation Station. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982) (describing "[t]he power to tax [as] an essential attribute of Indian sovereignty[,]. . . a necessary instrument of self-government and territorial management," which "enables a tribal government to raise revenues for its essential services"). As a practical matter, however, the two tolls cannot coexist. 379 F.3d, at 986. If the Nation imposes its tax on top of Kansas' tax, then unless the Nation operates the Nation Station at a substantial loss, scarcely anyone will fill up at its pumps. Effectively double-taxed, the Nation Station must operate as an unprofitable venture, or not at all. In these circumstances, *117 which tax is paramount? Applying the interest-balancing approach described in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), the Court of Appeals for the Tenth Circuit held that "the Kansas tax, as applied here, is preempted because it is incompatible with and outweighed by the strong tribal and federal interests against the tax." 379 F.3d, at 983. I agree and would affirm the Court of Appeals' judgment. I Understanding Bracker is key to the inquiry here. Bracker addressed the question whether a State should be preempted from collecting otherwise lawful taxes from non-Indians in view of the burden consequently imposed upon a tribe or its members. In that case, Arizona sought to enforce its fuel-use and vehicle-license taxes against a non-Indian enterprise that contracted with the White Mountain Apache Tribe to harvest timber from reservation forests. 448 U.S., at 138-140. The Court recognized that Arizona's levies raised difficult questions concerning "the boundaries between state regulatory authority and tribal self-government." Id., at 141. Determining whether taxes formally imposed on non-Indians are preempted, the Court instructed, should not turn "on mechanical or absolute conceptions of state or tribal sovereignty, but [calls] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake." Id., at 145. This inquiry is "designed to determine whether, in the specific context, the exercise of state authority would violate federal law," ibid., or "unlawfully infringe `on the right of reservation Indians to make their own laws and be ruled by them,'" id., at 142 (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)). Applying the interest-balancing approach, the Court concluded that "the proposed exercise of state authority [was] impermissible" because "it [was] undisputed that the economic burden of the asserted taxes will ultimately fall on the Tribe," *118 "the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber," and the state officials were "unable to justify the taxes except in terms of a generalized interest in raising revenue." 448 U.S., at 151. The Court has repeatedly applied the interest-balancing approach described in Bracker in evaluating claims that state taxes levied on non-Indians should be preempted because they undermine tribal and federal interests.[2] In many cases, both pre- and post-Bracker, a balancing analysis has yielded a decision upholding application of the state tax in question. See, e. g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 183-187 (1989) (State permitted to impose a severance tax on a non-Indian company that leased tribal land for oil and gas production); Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 154-159 (1980) (State permitted to tax non-Indians' purchases of cigarettes from on-reservation tribal retailers); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 481-483 (1976) (same). Sometimes, however, particularized inquiry has resulted in a holding that federal or tribal interests are superior. See, e. g., Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 U.S. 832, 843-846 (1982) (State prohibited from imposing grossreceipts tax on a non-Indian contractor constructing an on-reservation tribal school). Kansas contends that the interest-balancing approach is not suitably employed to assess its fuel tax for these reasons: (1) The Kansas Legislature imposed the legal incidence of *119 the tax on the distributor—here, a non-Indian enterprise— not on retailers or their customers; and (2) the distributor's liability is triggered when it receives fuel from its supplier— a transaction that occurs off reservation. Reply Brief 2-6. Given these circumstances, Kansas urges and the Court accepts, no balancing is in order. See ante, at 12-13; Brief for Petitioner 6, 14-21. It is irrelevant in the State's calculus that its approach would effectively nullify the tribal fuel tax. I note first that Kansas' placement of the legal incidence of the fuel tax is not as clear and certain as the State suggests and the Court holds. True, the statute states that "the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel." Kan. Stat. Ann. § 79-3408(c) (2003 Cum. Supp.). But the statute declares initially that the tax "is hereby imposed on the use, sale or delivery of all motor vehicle fuels . . . used, sold or delivered in this state for any purpose whatsoever," § 79-3408(a), and it authorizes distributors to pass on the tax to retailers, § 79-3409. Notably, the statute excludes from taxation several "transactions," including the "sale or delivery of motor-vehicle fuel . . . for export from the state of Kansas to any other state or territory or to any foreign country"; "sale or delivery . . . to the United States"; "sale or delivery . . . to a contractor for use in performing work for the United States"; and "sale or delivery . . . to another duly licensed distributor." § 79-3408(d). Kansas also excludes from taxation "lost or destroyed" fuel, which is never sold by the distributor. § 79-3417 (1997). These provisions indicate not only that the Kansas Legislature anticipated that distributors would shift the tax burden further downstream. They reveal as well where the Court's analysis of the fuel tax goes awry. When all the exclusions are netted out, the Kansas tax is imposed not on all the distributor's receipts, but effectively only on fuel actually resold by the distributor to an in-state nonexempt purchaser. To illustrate: Suppose in January a distributor acquires 100,000 gallons of fuel and promptly sells *120 80,000 to in-state nonexempt purchasers and 20,000 to exempt purchasers, for example, the United States or a U.S. contractor. The distributor would compute its tax liability by "deducting" the 20,000 gallons, see ante, at 108, n. 3, but would remit tax only on the 80,000 gallons bought by in-state nonexempt retailers.[3] If the distributor elected to build inventory in January by holding an additional 10,000 gallons for resale in February, Kansas would tax in January, but the distributor would effectively offset in February the tax paid in January on the inventory buildup. Again, in the end, only fuel actually sold to in-state nonexempt buyers would be burdened by Kansas' fuel tax.[4] Kansas' attribution of controlling effect to the formal legal incidence of the tax rests in part on the State's misreading of Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995). See Brief for Petitioner 8, 16-20. The Court in that case distinguished instances in which the legal incidence of a State's excise tax rests on a tribe or tribal members, from instances in which the legal incidence rests on non-Indians. When "the legal incidence . . . rests on a tribe or on tribal members for sales made inside Indian country," the Court said, "the tax cannot be enforced absent clear congressional *121 authorization." 515 U.S., at 459. This "bright-line standard," id., at 460, is sensitive to the sovereign status of Indian tribes, and reflects the Court's recognition that "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States." Colville, 447 U.S., at 154.[5] When a State places the legal incidence of its tax on non-Indians, however, no similarly overt disrespect for a tribe's independence and dignity is displayed. In cases of this genre, Chickasaw Nation recognized, the Court has resisted adoption of a categorical rule. In lieu of attributing dispositive significance to the legal incidence, the Court has focused on the particular levy, and has evaluated the federal, state, and tribal interests at stake. 515 U.S., at 459; see Cotton Petroleum, 490 U.S., at 176 (Instead of a "mechanical or absolute" test, the Court has "applied a flexible pre-emption analysis sensitive to the particular facts and legislation involved. Each case `requires a particularized examination of the relevant state, federal, and tribal interests.'" (quoting Ramah, 458 U.S., at 838)). Chickasaw Nation did observe that "if a State is unable to enforce a tax because the legal incidence of the impost is on Indians or Indian tribes, the State generally is free to amend its law to shift the tax's legal incidence." 515 U.S., at 460. Kansas took the cue. After our decision in Chickasaw Nation, Kansas amended its fuel tax statute to state that "the incidence of this tax is imposed on the distributor." Kan. Stat. Ann. § 79-3408(c) (2003 Cum. Supp.); see 1998 Kan. Sess. Laws, ch. 96, § 2, pp. 450-451; see also Kaul *122 v. State Dept. of Revenue, 266 Kan. 464, 474, 970 P.2d 60, 67 (1998).[6] Kansas is mistaken, however, regarding the legal significance of this shift. Chickasaw Nation clarified only that a State could shift the legal incidence to non-Indians so as to avoid the categorical bar applicable when a state excise tax is imposed directly on a tribe or tribal members for on-reservation activity. 515 U.S., at 460. At the same time, Chickasaw Nation indicated that a shift in the legal incidence of the kind Kansas has legislated would trigger—not foreclose—interest balancing. Ibid.[7] Kansas and the Court heavily rely upon Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) (Mescalero I). That case involved a ski resort operated by the Mescalero Apache Tribe on off-reservation land leased from the Federal Government. This Court upheld New Mexico's imposition of a tax on the gross receipts of the resort. Balancing was not in order, the Court explained, because the Tribe had ventured outside its own domain, and was fairly treated, for gross receipts purposes, just as a non-Indian enterprise would be. In such cases, the Court observed, an express-preemption standard is appropriately applied. As the Court put it: "Absent express federal law to the contrary, Indians going *123 beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State." Id., at 148-149. Accord Chickasaw Nation, 515 U.S., at 462-465 (State permitted to tax income of tribal members residing outside Indian country). Cases of the Mescalero I kind, however, do not touch and concern what is at issue in the instant case: taxes formally imposed on nonmembers that nonetheless burden on-reservation tribal activity. Conceding that "we have never addressed th[e] precise issue" this case poses, the Court asserts that "our Indian tax immunity cases counsel against" application of the Bracker interest-balancing test to Kansas' fuel tax as it impacts on the Nation Station. Ante, at 110. The Court so maintains on the ground that the Kansas fuel tax is imposed on a non-Indian and is unrelated to activity "on the reservation." Ante, at 110-113. As earlier explained, see supra, at 121, one can demur to the assertion that the legal incidence of the tax falls on the distributor, a nontribal entity. With respect to sales and deliveries to the Nation Station, however, the nontribal entity can indeed be described as "engaged in [an on-reservation] transaction with [a tribe]." Arizona Dept. of Revenue v. Blaze Constr. Co., 526 U.S. 32, 37 (1999). The reservation destination of fuel purchased by the Nation Station does not show the requisite engagement, in the Court's view, but I do not comprehend why. The destination of the fuel counts not only under § 79-3408(a) (2003 Cum. Supp.) (fuel tax "is hereby imposed on ... all motor vehicle fuels . . . used, sold or delivered in this state").[8] To whom and where the distributor sells are the criteria that determine the "transactions" on which "[n]o tax is . . . imposed," § 79-3408(d), and, correspondingly, the transactions on which *124 the tax is imposed. As earlier explained, see supra, at 119-120, the tax is in reality imposed only on fuel actually resold by the distributor to an in-state nonexempt purchaser. Here, that purchaser is the Nation Station, plainly an on-reservation venture.[9] Balancing tests have been criticized as rudderless, affording insufficient guidance to decisionmakers. See Colville, 447 U.S., at 176 (Rehnquist, J., concurring in part, concurring in result in part, and dissenting in part) (criticizing the "case-by-case litigation which has plagued this area of the law"); Brief for Petitioner 30-32. Pointed as the criticism may be, one must ask, as in life's choices generally, what is the alternative. "The principle of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seeks an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other." Colville, 447 U.S., at 156. No "bright-line" test is capable of achieving such an accommodation with respect to state taxes formally *125 imposed on non-Indians, but impacting on-reservation ventures. The one the Court adopts inevitably means, so long as the State officially places the burden on the non-Indian distributor in cases of this order, the Tribe loses. Faute de mieux and absent congressional instruction otherwise, I would adhere to precedent calling for "a particularized inquiry into the nature of the state, federal, and tribal interests at stake." Bracker, 448 U.S., at 145. II I turn to the question whether the Court of Appeals correctly balanced the competing interests in this case. Kansas and the Nation both assert a substantial interest in using their respective fuel taxes to raise revenue for road maintenance. Weighing competing state and tribal interests in raising revenue for public works, Colville observed: "While the Tribes do have an interest in raising revenues for essential governmental programs, that interest is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services." 447 U.S., at 156-157. In Colville, it was "painfully apparent" that outsiders had no reason to travel to Indian reservations to buy cigarettes other than the bargain prices tribal smokeshops charged by virtue of their claimed exemption from state taxation. Id., at 154-155. The Court upheld the State of Washington's taxes on cigarette purchases by nonmembers at tribal smokeshops. No "principl[e] of federal Indian law," the Court said, "authorize[s] Indian tribes . . . to market an exemption from state taxation to persons who would normally do their business elewhere." Id., at 155. *126 This case, as the Court of Appeals recognized, bears scant resemblance to Colville. "[I]n stark contrast to the smokeshops in Colville," the Nation here is not using its asserted exemption from state taxation to lure non-Indians onto its reservation. 379 F.3d, at 985. The Nation Station is not visible from the state highway, and it advertises no exemption from the State's fuel tax. Including the Nation's tax, the Nation Station sells fuel "`within 2¢ per gallon of the price prevailing in the local market.'" Id., at 982 (quoting the Nation's expert's report); see also App. 36-40.[10] The Nation Station's draw, therefore, is neither price nor proximity to the highway; rather, the Nation Station operates almost exclusively as an amenity for people driving to and from the casino. The Tenth Circuit regarded as valuable to its assessment the opinion of the Nation's expert, which concluded: "`[T]he Tribal and State taxes are mutually exclusive and only one can be collected without reducing the [Nation Station's] fuel business to virtually zero.'" 379 F.3d, at 986. Kansas "submitted [no] contradictory evidence" and did not argue that the expert opinion offered by the Nation was "either incorrect or exaggerated." Ibid.[11] In this respect, the case *127 is indeed novel. It is the first case in which a Tribe demonstrated below that the imposition of a state tax would prevent the Tribe from imposing its own tax. Cf. Cotton Petroleum, 490 U.S., at 185 (state and tribal taxes were not mutually exclusive because "the Tribe could, in fact, increase its taxes without adversely affecting on-reservation oil and gas development"). The Court of Appeals considered instructive this Court's decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). See 379 F.3d, at 985. The Court there held that tribal and federal interests outweighed state interests in regulating tribe-operated facilities for bingo and other games. Cabazon, 480 U.S., at 219-220. Distinguishing Colville, the Court pointed out that the Tribes in Cabazon "[were] not merely importing a product onto the reservatio[n] for immediate resale to non-Indians"; they had "built modern facilities" and provided "ancillary services" so that customers would come in increasing numbers and "spend extended periods of time" playing their "well-run games." 480 U.S., at 219; see also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 327, 341 (1983) (Mescalero II) (State barred from regulating hunting and fishing on-reservation where the Tribe had constructed a "resort complex" and developed wildlife and land resources). As in Cabazon, so here, the Nation Station is not "merely importing a product onto the reservatio[n] for immediate resale to non-Indians" at a stand-alone retail outlet. 480 U.S., at 219. Fuel sales at the Nation Station are "an integral and essential part of the [Tribe's] on-reservation gaming enterprise." 379 F.3d, at 984. The Nation built the Nation Station as a convenience for its casino patrons and, but for the casino, there would be no market for fuel in this otherwise remote area. Id., at 982. The Court of Appeals further emphasized that the Nation's "interests here are strengthened because of its need to raise fuel revenues to construct and maintain reservation *128 roads, bridges, and related infrastructure without state assistance." Id., at 985. The Nation's fuel revenue comes exclusively from the Nation Station, and that revenue (approximately $300,000 annually) may be used only for "`constructing and maintaining roads, bridges and rights-of-way located on or near the reservation.'" Id., at 985-986 (quoting Prairie Band Potawatomi Law and Order Code § 10-6-7 (2003)). The Nation's interests coincide with "strong federal interests in promoting tribal economic development, tribal selfsufficiency, and strong tribal governments." 379 F.3d, at 986. The United States points to the poor condition of Indian reservation roads, documented in federal reports, conditions that affect not only driving safety, but also the ability to furnish emergency medical, fire, and police services on an expedited basis, transportation to schools and jobs, and the advancement of economic activity critical to tribal selfsufficiency. Brief for United States as Amicus Curiae 26; see, e. g., Dept. of Interior, Bureau of Indian Affairs, TEA-21 Reauthorization Resource Paper: Transportation Serving Native American Lands (May 2003). The shared interest of the Federal Government and the Nation in improving reservation roads is reflected in Department of the Interior regulations implementing the Indian Reservation Roads Program. See 69 Fed. Reg. 43090 (2004); 25 CFR § 170 et seq. (2005). The regulations aim at enhancing the ability of tribal governments to promote road construction and maintenance. They anticipate that tribes will supplement federal funds with their own revenues, including funds gained from a "[t]ribal fuel tax." § 170.932(d). Because the Nation's roads are integrally related to its casino enterprise, they also further federal interests in tribal economic development advanced by the Indian Gaming Regulatory Act, 102 Stat. 2467, 25 U.S.C. § 2701 et seq. Against these strong tribal and federal interests, Kansas asserts only its "general interest in raising revenues." 379 *129 F.3d, at 986. "Kansas' interest," as the Court of Appeals observed, "is not at its strongest." Id., at 987. By effectively taxing the Nation Station, Kansas would be deriving revenue "primarily from value generated on the reservation" by the Nation's casino. Ibid. Moreover, the revenue Kansas would gain from applying its tax to fuel destined for the Nation Station appears insubstantial when compared with the total revenue ($6.1 billion in 2004) the State annually collects through the tax. See id., at 982; Brief for Respondent 12 (observing that "[t]he tax revenues at issue—roughly $300,000 annually—are less than one-tenth of one percent of the total state fuel tax revenues"). The Court asserts that "Kansas uses the proceeds from its fuel tax to pay for a significant portion of the costs of maintaining the roads and bridges on the Nation's reservation." Ante, at 115. The record reveals a different reality. According to the affidavit of the Director of the Nation's Road and Bridge Department, Kansas and its subdivisions have failed to provide proper maintenance even on their own roads running through the reservation. App. 79. As a result, the Nation has had to assume responsibility for a steadily growing number of road miles within the reservation (roughly 118 of the 212 total miles in 2000). Ibid.; see also Brief for Respondent 3, 40, 44-45. Of greater significance, Kansas expends none of its fuel tax revenue on the upkeep or improvement of tribally owned reservation roads. 379 F.3d, at 986-987; cf. Ramah, 458 U.S., at 843, n. 7 ("This case would be different if the State were actively seeking tax revenues for the purpose of constructing, or assisting in the effort to provide, adequate [tribal services]."). In contrast, Kansas sets aside a significant percentage of its fuel tax revenues (over 40% in 1999) for counties and localities. Kan. Stat. Ann. § 79-3425 (2003 Cum. Supp.); see also § 79-34,142 (1997) (prescribing allocation formula); 1999 Kan. Sess. Laws, ch. 137, § 37, p. 1124. And, as indicated earlier, supra, at 118-120, Kansas accords the Nation no dispensation based *130 on the Nation's sovereign status. The Nation thus receives neither a state exemption so that it can impose its own fuel tax, nor a share of the State's fuel tax revenues. Accordingly, the net result of invalidating Kansas' tax as applied to fuel distributed to the Nation Station would be a somewhat more equitable distribution of road maintenance revenues in Kansas. Kansas argues that, were the Nation to prevail in this case, nothing would stop the Nation from reducing its tax in order to sell gas below the market price. Brief for Petitioner 30. Colville should quell the State's fears in this regard. Were the Nation to pursue such a course, it would be marketing an exemption, much as the smokeshops did in Colville, and hence, interest balancing would likely yield a judgment for the State. See 447 U.S., at 155-157. In any event, as the Nation points out, the State could guard against the risk that "Tribes will impose a `nominal tax' and sell goods at a deep discount on the reservation." Brief for Respondent 34-35. The State could provide a credit for any tribal tax imposed or enact a state tax that applies only to the extent that the Nation fails to impose an equivalent tribal tax. Id., at 35. Today's decision is particularly troubling because of the cloud it casts over the most beneficial means to resolve conflicts of this order. In Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505 (1991), the Court counseled that States and tribes may enter into agreements establishing "a mutually satisfactory regime for the collection of this sort of tax." Id., at 514; see also Nevada v. Hicks, 533 U.S. 353, 393 (2001) (O'Connor, J., concurring in part and concurring in judgment) (describing various state-tribal agreements); Brief for United States as Amicus Curiae 28-29, and n. 12; Brief for National Intertribal Tax Alliance et al. as Amici Curiae; Ansson, State Taxation of Non-Indians Who Do Business With Indian Tribes: Why Several Recent Ninth Circuit Holdings Reemphasize the Need *131 for Indian Tribes to Enter Into Taxation Compacts With Their Respective States, 78 Ore. L. Rev. 501, 546 (1999) ("More than 200 Tribes in eighteen states have resolved their taxation disputes by entering into intergovernmental agreements.").[12] By truncating the balancing-of-interests approach, the Court has diminished prospects for cooperative efforts to achieve resolution of taxation issues through constructive intergovernmental agreements. In sum, the Nation operates the Nation Station in order to provide a service for patrons at its casino without, in any way, seeking to attract bargain hunters on the lookout for cheap gas. Kansas' collection of its tax on fuel destined for the Nation Station will effectively nullify the Nation's tax, which funds critical reservation road-building programs, endeavors not aided by state funds. I resist that unbalanced judgment. * * * For the reasons stated, I would affirm the judgment of the Court of Appeals for the Tenth Circuit.

The Kansas fuel tax at issue is imposed on distributors, passed on to retailers, and ultimately paid by gas station customers. Out-of-state sales are exempt, as are sales to other distributors, the United States, and U.S. Government contractors. Fuel lost or destroyed, and thus not sold, is also exempt. But no statutory exception attends sales to Indian tribes or their members. ; 79-3409; 79-3417 (1997 and 2003 Cum. Supp.). The Prairie Band Potawatomi (hereinafter ) maintains a casino and related facilities on its On nearby tribal land, as an adjunct to its casino, the built, owns, and operates a gas station known as the Station. Some 73% of the Station's customers are casino patrons or employees. Prairie Band Potawatomi The imposes its own tax on fuel sold at the Station, pennies per gallon less than Kansas' tax. [1] Both the and the State have authority to tax fuel sales at the Station. See (1) As a practical matter, however, the two tolls cannot coexist. If the imposes its tax on top of Kansas' tax, then unless the operates the Station at a substantial loss, scarcely anyone will fill up at its pumps. Effectively double-taxed, the Station must operate as an unprofitable venture, or not at all. In these circumstances, *117 which tax is paramount? Applying the interest-balancing approach described in White Mountain Apache the Court of Appeals for the Tenth Circuit held that "the Kansas tax, as applied here, is preempted because it is incompatible with and outweighed by the strong tribal and federal interests against the tax." I agree and would affirm the Court of Appeals' judgment. I Understanding Bracker is key to the inquiry here. Bracker addressed the question whether a State should be preempted from collecting otherwise lawful taxes from non-Indians in view of the burden consequently imposed upon a tribe or its members. In that case, Arizona sought to enforce its fuel-use and vehicle-license taxes against a non-Indian enterprise that contracted with the White Mountain Apache Tribe to harvest timber from reservation forests. -140. The Court recognized that Arizona's levies raised difficult questions concerning "the boundaries between state regulatory authority and tribal self-government." Determining whether taxes formally imposed on non-Indians are preempted, the Court instructed, should not turn "on mechanical or absolute conceptions of state or tribal sovereignty, but [calls] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake." This inquiry is "designed to determine whether, in the specific context, the exercise of state authority would violate federal law," ib or "unlawfully infringe `on the right of reservation Indians to make their own laws and be ruled by them,'" ). Applying the interest-balancing approach, the Court concluded that "the proposed exercise of state authority [was] impermissible" because "it [was] undisputed that the economic burden of the asserted taxes will ultimately fall on the Tribe," *118 "the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber," and the state officials were "unable to justify the taxes except in terms of a generalized interest in raising revenue." The Court has repeatedly applied the interest-balancing approach described in Bracker in evaluating claims that state taxes levied on non-Indians should be preempted because they undermine tribal and federal interests.[2] In many cases, both pre- and post-Bracker, a balancing analysis has yielded a decision upholding application of the state tax in question. See, e. g., Cotton ; ; Sometimes, however, particularized inquiry has resulted in a holding that federal or tribal interests are superior. See, e. g., Navajo School Bd., (1) Kansas contends that the interest-balancing approach is not suitably employed to assess its fuel tax for these reasons: (1) The Kansas Legislature imposed the legal incidence of *119 the tax on the distributor—here, a non-Indian enterprise— not on retailers or their customers; and (2) the distributor's liability is triggered when it receives fuel from its supplier— a transaction that occurs off Reply Brief 2-6. Given these circumstances, Kansas urges and the Court accepts, no balancing is in order. See ante, at 12-13; Brief for Petitioner 6, 14-21. It is irrelevant in the State's calculus that its approach would effectively nullify the tribal fuel tax. I note first that Kansas' placement of the legal incidence of the fuel tax is not as clear and certain as the State suggests and the Court holds. True, the statute states that "the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel." (c) (2003 Cum. Supp.). But the statute declares initially that the tax "is hereby imposed on the use, sale or delivery of all motor vehicle fuels used, sold or delivered in this state for any purpose whatsoever," 79-3408(a), and it authorizes distributors to pass on the tax to retailers, 79-3409. Notably, the statute excludes from taxation several "transactions," including the "sale or delivery of motor-vehicle fuel for export from the state of Kansas to any other state or territory or to any foreign country"; "sale or delivery to the United States"; "sale or delivery to a contractor for use in performing work for the United States"; and "sale or delivery to another duly licensed distributor." 79-3408(d). Kansas also excludes from taxation "lost or destroyed" fuel, which is never sold by the distributor. 79-3417 (1997). These provisions indicate not only that the Kansas Legislature anticipated that distributors would shift the tax burden further downstream. They reveal as well where the Court's analysis of the fuel tax goes awry. When all the exclusions are netted out, the Kansas tax is imposed not on all the distributor's receipts, but effectively only on fuel actually resold by the distributor to an in-state nonexempt purchaser. To illustrate: Suppose in January a distributor acquires 100,000 gallons of fuel and promptly sells *120 80,000 to in-state nonexempt purchasers and 20,000 to exempt purchasers, for example, the United States or a U.S. contractor. The distributor would compute its tax liability by "deducting" the 20,000 gallons, see ante, at 108, n. 3, but would remit tax only on the 80,000 gallons bought by in-state nonexempt retailers.[3] If the distributor elected to build inventory in January by holding an additional 10,000 gallons for resale in February, Kansas would tax in January, but the distributor would effectively offset in February the tax paid in January on the inventory buildup. Again, in the end, only fuel actually sold to in-state nonexempt buyers would be burdened by Kansas' fuel tax.[4] Kansas' attribution of controlling effect to the formal legal incidence of the tax rests in part on the State's misreading of Oklahoma Tax See Brief for Petitioner 8, 16-20. The Court in that case distinguished instances in which the legal incidence of a State's excise tax rests on a tribe or tribal members, from instances in which the legal incidence rests on non-Indians. When "the legal incidence rests on a tribe or on tribal members for sales made inside Indian country," the Court said, "the tax cannot be enforced absent clear congressional *121 authorization." This "bright-line standard," is sensitive to the sovereign status of Indian tribes, and reflects the Court's recognition that "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States."[5] When a State places the legal incidence of its tax on non-Indians, however, no similarly overt disrespect for a tribe's independence and dignity is displayed. In cases of this genre, Chickasaw recognized, the Court has resisted adoption of a categorical rule. In lieu of attributing dispositive significance to the legal incidence, the Court has focused on the particular levy, and has evaluated the federal, state, and tribal interests at stake. ; see Cotton (Instead of a "mechanical or absolute" test, the Court has "applied a flexible pre-emption analysis sensitive to the particular facts and legislation involved. Each case `requires a particularized examination of the relevant state, federal, and tribal interests.'" (quoting )). Chickasaw did observe that "if a State is unable to enforce a tax because the legal incidence of the impost is on Indians or Indian tribes, the State generally is free to amend its law to shift the tax's legal incidence." 515 U.S., Kansas took the cue. After our decision in Chickasaw Kansas amended its fuel tax statute to state that "the incidence of this tax is imposed on the distributor." (c) (2003 Cum. Supp.); see Kan. Sess. Laws, ch. 96, 2, pp. 450-451; see also Kaul[6] Kansas is mistaken, however, regarding the legal significance of this shift. Chickasaw clarified only that a State could shift the legal incidence to non-Indians so as to avoid the categorical bar applicable when a state excise tax is imposed directly on a tribe or tribal members for on-reservation activity. 515 U.S., At the same time, Chickasaw indicated that a shift in the legal incidence of the kind Kansas has legislated would trigger—not foreclose—interest balancing. [7] Kansas and the Court heavily rely upon Mescalero Apache That case involved a ski resort operated by the Mescalero Apache Tribe on off-reservation land leased from the Federal Government. This Court upheld New Mexico's imposition of a tax on the gross receipts of the resort. Balancing was not in order, the Court explained, because the Tribe had ventured outside its own domain, and was fairly treated, for gross receipts purposes, just as a non-Indian enterprise would be. In such cases, the Court observed, an express-preemption standard is appropriately applied. As the Court put it: "Absent express federal law to the contrary, Indians going *123 beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State." Accord Chickasaw -465 Cases of the Mescalero I kind, however, do not touch and concern what is at issue in the instant case: taxes formally imposed on nonmembers that nonetheless burden on-reservation tribal activity. Conceding that "we have never addressed th[e] precise issue" this case poses, the Court asserts that "our Indian tax immunity cases counsel against" application of the Bracker interest-balancing test to Kansas' fuel tax as it impacts on the Station. Ante, at 110. The Court so maintains on the ground that the Kansas fuel tax is imposed on a non-Indian and is unrelated to activity "on the " Ante, at 110-113. As explained, see one can demur to the assertion that the legal incidence of the tax falls on the distributor, a nontribal entity. With respect to sales and deliveries to the Station, however, the nontribal entity can indeed be described as "engaged in [an on-reservation] transaction with [a tribe]." Arizona Dept. of The reservation destination of fuel purchased by the Station does not show the requisite engagement, in the Court's view, but I do not comprehend why. The destination of the fuel counts not only under 79-3408(a) (2003 Cum. Supp.) (fuel tax "is hereby imposed on all motor vehicle fuels used, sold or delivered in this state").[8] To whom and where the distributor sells are the criteria that determine the "transactions" on which "[n]o tax is imposed," 79-3408(d), and, correspondingly, the transactions on which *124 the tax is imposed. As explained, see the tax is in reality imposed only on fuel actually resold by the distributor to an in-state nonexempt purchaser. Here, that purchaser is the Station, plainly an on-reservation venture.[9] Balancing tests have been criticized as rudderless, affording insufficient guidance to decisionmakers. See (criticizing the "case-by-case litigation which has plagued this area of the law"); Brief for Petitioner 30-32. Pointed as the criticism may be, one must ask, as in life's choices generally, what is the alternative. "The principle of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seeks an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other." No "bright-line" test is capable of achieving such an accommodation with respect to state taxes formally *125 imposed on non-Indians, but impacting on-reservation ventures. The one the Court adopts inevitably means, so long as the State officially places the burden on the non-Indian distributor in cases of this order, the Tribe loses. Faute de mieux and absent congressional instruction otherwise, I would adhere to precedent calling for "a particularized inquiry into the nature of the state, federal, and tribal interests at stake." Bracker, 448 U.S., II I turn to the question whether the Court of Appeals correctly balanced the competing interests in this case. Kansas and the both assert a substantial interest in using their respective fuel taxes to raise revenue for road maintenance. Weighing competing state and tribal interests in raising revenue for public works, observed: "While the Tribes do have an interest in raising revenues for essential governmental programs, that interest is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services." -157. In it was "painfully apparent" that outsiders had no reason to travel to Indian reservations to buy cigarettes other than the bargain prices tribal smokeshops charged by virtue of their claimed exemption from state taxation. The Court upheld the State of Washington's taxes on cigarette purchases by nonmembers at tribal smokeshops. No "principl[e] of federal Indian law," the Court said, "authorize[s] Indian tribes to market an exemption from state taxation to persons who would normally do their business elewhere." *126 This case, as the Court of Appeals recognized, bears scant resemblance to "[I]n stark contrast to the smokeshops in" the here is not using its asserted exemption from state taxation to lure non-Indians onto its 9 F.3d, The Station is not visible from the state highway, and it advertises no exemption from the State's fuel tax. Including the 's tax, the Station sells fuel "`within 2¢ per gallon of the price prevailing in the local market.'" at (quoting the 's expert's report); see also App. 36-40.[10] The Station's draw, therefore, is neither price nor proximity to the highway; rather, the Station operates almost exclusively as an amenity for people driving to and from the casino. The Tenth Circuit regarded as valuable to its assessment the opinion of the 's expert, which concluded: "`[T]he Tribal and State taxes are mutually exclusive and only one can be collected without reducing the [ Station's] fuel business to virtually zero.'" Kansas "submitted [no] contradictory evidence" and did not argue that the expert opinion offered by the was "either incorrect or exaggerated." [11] In this respect, the case *127 is indeed novel. It is the first case in which a Tribe demonstrated below that the imposition of a state tax would prevent the Tribe from imposing its own tax. Cf. Cotton The Court of Appeals considered instructive this Court's decision in See 9 F.3d, The Court there held that tribal and federal interests outweighed state interests in regulating tribe-operated facilities for bingo and other games. -. Distinguishing the Court pointed out that the Tribes in "[were] not merely importing a product onto the reservatio[n] for immediate resale to non-Indians"; they had "built modern facilities" and provided "ancillary services" so that customers would come in increasing numbers and "spend extended periods of time" playing their "well-run games." ; see also New (State barred from regulating hunting and fishing on-reservation where the Tribe had constructed a "resort complex" and developed wildlife and land resources). As in so here, the Station is not "merely importing a product onto the reservatio[n] for immediate resale to non-Indians" at a stand-alone retail Fuel sales at the Station are "an integral and essential part of the [Tribe's] on-reservation gaming enterprise." 9 F.3d, at 984. The built the Station as a convenience for its casino patrons and, but for the casino, there would be no market for fuel in this otherwise remote area. at The Court of Appeals further emphasized that the 's "interests here are strengthened because of its need to raise fuel revenues to construct and maintain reservation *128 roads, bridges, and related infrastructure without state assistance." The 's fuel revenue comes exclusively from the Station, and that revenue (approximately $300,000 annually) may be used only for "`constructing and maintaining roads, bridges and rights-of-way located on or near the '" -986 (quoting Prairie Band Potawatomi Law and Order Code 10-6-7 (2003)). The 's interests coincide with "strong federal interests in promoting tribal economic development, tribal selfsufficiency, and strong tribal governments." The United States points to the poor condition of Indian reservation roads, documented in federal reports, conditions that affect not only driving safety, but also the ability to furnish emergency medical, fire, and police services on an expedited basis, transportation to schools and jobs, and the advancement of economic activity critical to tribal selfsufficiency. Brief for United States as Amicus Curiae 26; see, e. g., Dept. of Interior, Bureau of Indian Affairs, TEA-21 Reauthorization Resource Paper: Transportation Serving Native American Lands (May 2003). The shared interest of the Federal Government and the in improving reservation roads is reflected in Department of the Interior regulations implementing the Indian Reservation Roads Program. See ; 25 CFR 170 et seq. (2005). The regulations aim at enhancing the ability of tribal governments to promote road construction and maintenance. They anticipate that tribes will supplement federal funds with their own revenues, including funds gained from a "[t]ribal fuel tax." 170.932(d). Because the 's roads are integrally related to its casino enterprise, they also further federal interests in tribal economic development advanced by the Indian Gaming Regulatory Act, 102 Stat. 24, 25 U.S.C. 2701 et seq. Against these strong tribal and federal interests, Kansas asserts only its "general interest in raising revenues." 9 *. "Kansas' interest," as the Court of Appeals observed, "is not at its strongest." By effectively taxing the Station, Kansas would be deriving revenue "primarily from value generated on the reservation" by the 's casino. Moreover, the revenue Kansas would gain from applying its tax to fuel destined for the Station appears insubstantial when compared with the total revenue the State annually collects through the tax. See at ; Brief for Respondent 12 (observing that "[t]he tax revenues at issue—roughly $300,000 annually—are less than one-tenth of one percent of the total state fuel tax revenues"). The Court asserts that "Kansas uses the proceeds from its fuel tax to pay for a significant portion of the costs of maintaining the roads and bridges on the 's " Ante, at 115. The record reveals a different reality. According to the affidavit of the Director of the 's Road and Bridge Department, Kansas and its subdivisions have failed to provide proper maintenance even on their own roads running through the App. 79. As a result, the has had to assume responsibility for a steadily growing number of road miles within the reservation (roughly 118 of the 212 total miles in 2000). ; see also Brief for Respondent 3, 40, 44-45. Of greater significance, Kansas expends none of its fuel tax revenue on the upkeep or improvement of tribally owned reservation -987; cf. n. 7 In contrast, Kansas sets aside a significant percentage of its fuel tax revenues for counties and localities. Kan. Stat. Ann. 79-3425 (2003 Cum. Supp.); see also 79-34,142 (1997) (prescribing allocation formula); 1999 Kan. Sess. Laws, ch. p. 1124. And, as indicated Kansas accords the no dispensation based *130 on the 's sovereign status. The thus receives neither a state exemption so that it can impose its own fuel tax, nor a share of the State's fuel tax revenues. Accordingly, the net result of invalidating Kansas' tax as applied to fuel distributed to the Station would be a somewhat more equitable distribution of road maintenance revenues in Kansas. Kansas argues that, were the to prevail in this case, nothing would stop the from reducing its tax in order to sell gas below the market price. Brief for Petitioner 30. should quell the State's fears in this regard. Were the to pursue such a course, it would be marketing an exemption, much as the smokeshops did in and hence, interest balancing would likely yield a judgment for the State. See 447 U.S., -157. In any event, as the points out, the State could guard against the risk that "Tribes will impose a `nominal tax' and sell goods at a deep discount on the " Brief for Respondent 34-35. The State could provide a credit for any tribal tax imposed or enact a state tax that applies only to the extent that the fails to impose an equivalent tribal tax. Today's decision is particularly troubling because of the cloud it casts over the most beneficial means to resolve conflicts of this order. In Oklahoma Tax the Court counseled that States and tribes may enter into agreements establishing "a mutually satisfactory regime for the collection of this sort of tax." ; see also (describing various state-tribal agreements); Brief for United States as Amicus Curiae 28-29, and n. 12; Brief for al Intertribal Tax Alliance et al. as Amici Curiae; Ansson, State Taxation of Non-Indians Who Do Business With Indian Tribes: Why Several Recent Ninth Circuit Holdings Reemphasize the Need *131 for Indian Tribes to Enter Into Taxation Compacts With Their Respective States, 78 Ore. L. Rev. 501, 546 ("More than 200 Tribes in eighteen states have resolved their taxation disputes by entering into intergovernmental agreements.").[12] By truncating the balancing-of-interests approach, the Court has diminished prospects for cooperative efforts to achieve resolution of taxation issues through constructive intergovernmental agreements. In sum, the operates the Station in order to provide a service for patrons at its casino without, in any way, seeking to attract bargain hunters on the lookout for cheap gas. Kansas' collection of its tax on fuel destined for the Station will effectively nullify the 's tax, which funds critical reservation road-building programs, endeavors not aided by state funds. I resist that unbalanced judgment. * * * For the reasons stated, I would affirm the judgment of the Court of Appeals for the Tenth Circuit.

Justice Breyer

majority

Trest v. Cain

1997-12-09

https://www.courtlistener.com/opinion/118154/trest-v-cain/

https://www.courtlistener.com/api/rest/v3/clusters/118154/

1997-008

The petitioner in this case, Richard Trest, seeks a writ of habeas corpus, which would vacate a long sentence that he is serving in a Louisiana prison for armed robbery. The District Court refused to issue the writ. Trest appealed to the Court of Appeals for the Fifth Circuit, which ruled against him on the ground of "procedural default." Trest v. Whitley, 94 F.3d 1005, 1007 (1996). The Fifth Circuit believed that Trest had failed to raise his federal claims on time in state court, that a state court would now refuse to consider his claims for that reason, and that this state procedural reason amounted to an adequate and independent state ground for denying Trest relief. Hence, in the absence of special circumstances, a federal habeas court could not reach the merits of Trest's federal claims. Id., at 1007-1009; see *89 generally Coleman v. Thompson, 501 U.S. 722 (1991); Rose v. Lundy, 455 U.S. 509 (1982). In his petition for certiorari to this Court, Trest pointed out that the Court of Appeals had raised and decided the question of "procedural default" sua sponte. The parties themselves had neither raised nor argued the matter. And language in the Court of Appeals' opinion suggested that the court had thought that, once it had noticed the possibility of a procedural default, it was required to raise the matter on its own. Trest consequently asked us to decide whether a court of appeals, reviewing a district court's habeas corpus decision, "is required to raise . . . sua sponte " a petitioner's potential procedural default. Pet. for Cert. i (emphasis added). We agreed to do so. Precedent makes clear that the answer to the question presented is "no." A court of appeals is not "required" to raise the issue of procedural default sua sponte. It is not as if the presence of a procedural default deprived the federal court of jurisdiction, for this Court has made clear that in the habeas context, a procedural default, that is, a critical failure to comply with state procedural law, is not a jurisdictional matter. See Lambrix v. Singletary, 520 U.S. 518, 522-523 (1997); Coleman, 501 U. S., at 730-731. Rather, "[i]n the habeas context, the application of the independent and adequate state ground doctrine," of which a procedural default is typically an instance, "is grounded in concerns of comity and federalism." Id., at 730 (contrasting habeas proceeding with this Court's direct review of a state court judgment). Thus, procedural default is normally a "defense" that the State is "obligated to raise" and "preserv[e]" if it is not to "lose the right to assert the defense thereafter." Gray v. Netherland, 518 U.S. 152, 166 (1996); see Jenkins v. Anderson, 447 U.S. 231, 234, n. 1 (1980). We are not aware of any precedent stating that a habeas court must raise such a matter where the State itself does not do so. And Louisiana concedes as much, for it says in its brief that "the Fifth *90 Circuit clearly was not `required' to sua sponte invoke procedural default." Brief for Respondent 16-17. Louisiana, however, would like us to go beyond the question presented and hold that the law permitted (though it did not require) the Fifth Circuit to raise the procedural default sua sponte. Cf. Granberry v. Greer, 481 U.S. 129, 133-134 (1987) (appellate court may raise sua sponte petitioner's failure to exhaust state remedies). We recognize some uncertainty in the lower courts as to whether, or just when, a habeas court may consider a procedural default that the State at some point has waived, or failed to raise. Compare Esslinger v. Davis, 44 F.3d 1515, 1525-1528 (CA11 1995) (sua sponte invocation of procedural default serves no important federal interest), with Hardiman v. Reynolds, 971 F.2d 500, 502-505 (CA10 1992) (comity and scarce judicial resources may justify court raising state procedural default sua sponte ); see also J. Liebman & R. Hertz, 2 Federal Habeas Corpus Practice and Procedure § 26.2, pp. 814-817 (1994) (citing cases). Nonetheless, we do not believe this is an appropriate case in which to examine that question for several reasons. First, the Fifth Circuit's opinion contains language suggesting the court believed that, despite Louisiana's failure to raise the matter, Circuit precedent required the court (and did not simply permit the court) to consider a potential procedural default. See, e. g., 94 F. 3d, at 1007 ("[T]his court's decision in Sones v. Hargett . . . precludes us from reviewing the merits of Trest's habeas challenge"). Second, the language of the question presented in Trest's petition for certiorari, as well as the arguments made in his petition, made clear that Trest intended to limit the question in the way we have described. Yet Louisiana in its response did not object or suggest alternate wording. Nor did Louisiana ask us to consider the question in any broader context. Third, we cannot now easily answer the broader question in the context of this case, for we are uncertain about matters *91 which arguably are relevant to the question whether the law permitted the Fifth Circuit to raise a procedural default sua sponte. The parties disagree, for example, about whether or not Trest has fully, or partially, exhausted his current federal claims by raising them in state court. Cf. Rose v. Lundy, supra, at 518-520. They disagree about whether Louisiana has waived any "nonexhaustion" defense. Cf. Granberry v. Greer, supra. They consequently disagree about whether this is, or is not, the kind of case in which a federal court might rely upon the existence of a state "procedural bar" despite the failure of any state court to assert one. See Coleman v. Thompson, supra, at 735, n. The parties also seem to disagree about which State's procedural rules are relevant. Trest's federal claims focus upon the 35-year sentence of imprisonment that the Louisiana court imposed (under a Louisiana "habitual offender" law) in light of his earlier convictions in Mississippi for burglary. Trest argued that those earlier convictions were constitutionally invalid because they rested upon a guilty plea which he says the Mississippi court accepted without having first told him about his rights to appeal, to trial by jury, to confront witnesses, and not to incriminate himself. Cf. Boykin v. Alabama, 395 U.S. 238, 242-244 (1969); State v. Robicheaux, 412 So. 2d 1313, 1316-1317 (La. 1982). The Fifth Circuit did not reach the merits of Trest's claims because it believed that the Mississippi courts would have barred any challenge to his Mississippi convictions as a challenge that, under state law, came too late in the day. See Miss. Code Ann. § 99-39-5(2) (1994). Trest, and amici supporting him, state that the relevant procedural law (for the purposes of the "procedural default" doctrine) is that of Louisiana, rather than that of Mississippi, for it is Louisiana, not Mississippi, which holds Trest in custody. And it is not clear whether Mississippi's procedural law would create a "default" that would bar federal courts from considering whether Louisiana, *92 not Mississippi, could (or could not) use Mississippi convictions to enhance a sentence for a subsequent Louisiana crime. We note that the parties might have considered these questions, and the Court of Appeals might have determined their relevance or their answers, had that court not decided the procedural default question without giving the parties an opportunity for argument. We do not say that a court must always ask for further briefing when it disposes of a case on a basis not previously argued. But often, as here, that somewhat longer (and often fairer) way `round is the shortest way home. Regardless, we have answered the question presented, we vacate the judgment of the Court of Appeals, and we remand the case for further proceedings consistent with this opinion. It is so ordered.

The petitioner in this case, Richard Trest, seeks a writ of habeas corpus, which would vacate a long sentence that he is serving in a Louisiana prison for armed robbery. The District Court refused to issue the writ. Trest appealed to the Court of Appeals for the Fifth Circuit, which ruled against him on the ground of "procedural default." The Fifth Circuit believed that Trest had failed to raise his federal claims on time in state court, that a state court would now refuse to consider his claims for that reason, and that this state procedural reason amounted to an adequate and independent state ground for denying Trest relief. Hence, in the absence of special circumstances, a federal habeas court could not reach the merits of Trest's federal claims. at -1009; see *89 generally ; In his petition for certiorari to this Court, Trest pointed out that the Court of Appeals had raised and decided the question of "procedural default" sua sponte. The parties themselves had neither raised nor argued the matter. And language in the Court of Appeals' opinion suggested that the court had thought that, once it had noticed the possibility of a procedural default, it was required to raise the matter on its own. Trest consequently asked us to decide whether a court of appeals, reviewing a district court's habeas corpus decision, "is required to raise sua sponte " a petitioner's potential procedural default. Pet. for Cert. i (emphasis added). We agreed to do so. Precedent makes clear that the answer to the question presented is "no." A court of appeals is not "required" to raise the issue of procedural default sua sponte. It is not as if the presence of a procedural default deprived the federal court of jurisdiction, for this Court has made clear that in the habeas context, a procedural default, that is, a critical failure to comply with state procedural law, is not a jurisdictional matter. See ; -731. Rather, "[i]n the habeas context, the application of the independent and adequate state ground doctrine," of which a procedural default is typically an instance, "is grounded in concerns of comity and federalism." Thus, procedural default is normally a "defense" that the State is "obligated to raise" and "preserv[e]" if it is not to "lose the right to assert the defense thereafter." ; see We are not aware of any precedent stating that a habeas court must raise such a matter where the State itself does not do so. And Louisiana concedes as much, for it says in its brief that "the Fifth *90 Circuit clearly was not `required' to sua sponte invoke procedural default." Brief for Respondent 16-17. Louisiana, however, would like us to go beyond the question presented and hold that the law permitted (though it did not require) the Fifth Circuit to raise the procedural default sua sponte. Cf. We recognize some uncertainty in the lower courts as to whether, or just when, a habeas court may consider a procedural default that the State at some point has waived, or failed to raise. Compare with ; see also J. Liebman & R. Hertz, 2 Federal Habeas Corpus Practice and Procedure 26.2, pp. 814-817 (1994) (citing cases). Nonetheless, we do not believe this is an appropriate case in which to examine that question for several reasons. First, the Fifth Circuit's opinion contains language suggesting the court believed that, despite Louisiana's failure to raise the matter, Circuit precedent required the court (and did not simply permit the court) to consider a potential procedural default. See, e. 94 F. 3d, at ("[T]his court's decision in Sones v. Hargett precludes us from reviewing the merits of Trest's habeas challenge"). Second, the language of the question presented in Trest's petition for certiorari, as well as the arguments made in his petition, made clear that Trest intended to limit the question in the way we have described. Yet Louisiana in its response did not object or suggest alternate wordin Nor did Louisiana ask us to consider the question in any broader context. Third, we cannot now easily answer the broader question in the context of this case, for we are uncertain about matters *91 which arguably are relevant to the question whether the law permitted the Fifth Circuit to raise a procedural default sua sponte. The parties disagree, for example, about whether or not Trest has fully, or partially, exhausted his current federal claims by raising them in state court. Cf. They disagree about whether Louisiana has waived any "nonexhaustion" defense. Cf. They consequently disagree about whether this is, or is not, the kind of case in which a federal court might rely upon the existence of a state "procedural bar" despite the failure of any state court to assert one. See n. The parties also seem to disagree about which State's procedural rules are relevant. Trest's federal claims focus upon the 35-year sentence of imprisonment that the Louisiana court imposed (under a Louisiana "habitual offender" law) in light of his earlier convictions in Mississippi for burglary. Trest argued that those earlier convictions were constitutionally invalid because they rested upon a guilty plea which he says the Mississippi court accepted without having first told him about his rights to appeal, to trial by jury, to confront witnesses, and not to incriminate himself. Cf. ; The Fifth Circuit did not reach the merits of Trest's claims because it believed that the Mississippi courts would have barred any challenge to his Mississippi convictions as a challenge that, under state law, came too late in the day. See Miss. Code Ann. 99-39-5(2) (1994). Trest, and amici supporting him, state that the relevant procedural law (for the purposes of the "procedural default" doctrine) is that of Louisiana, rather than that of Mississippi, for it is Louisiana, not Mississippi, which holds Trest in custody. And it is not clear whether Mississippi's procedural law would create a "default" that would bar federal courts from considering whether Louisiana, *92 not Mississippi, could (or could not) use Mississippi convictions to enhance a sentence for a subsequent Louisiana crime. We note that the parties might have considered these questions, and the Court of Appeals might have determined their relevance or their answers, had that court not decided the procedural default question without giving the parties an opportunity for argument. We do not say that a court must always ask for further briefing when it disposes of a case on a basis not previously argued. But often, as here, that somewhat longer (and often fairer) way `round is the shortest way home. Regardless, we have answered the question presented, we vacate the judgment of the Court of Appeals, and we remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Breyer

majority

Lapides v. Board of Regents of Univ. System of Ga.

2002-05-13

https://www.courtlistener.com/opinion/118504/lapides-v-board-of-regents-of-univ-system-of-ga/

https://www.courtlistener.com/api/rest/v3/clusters/118504/

2001-047

The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U. S. Const., Amdt. 11, and by its own citizens as well, Hans v. Louisiana, 134 U.S. 1 (1890). The question before us is whether the State's act of removing a lawsuit from state court to federal court waives this immunity. We hold that it does. I Paul Lapides, a professor employed by the Georgia state university system, brought this lawsuit in a Georgia state court. He sued respondents, the Board of Regents of the University System of Georgia (hereinafter Georgia or State) and university officials acting in both their personal capacities and as agents of the State. Lapides' lawsuit alleged that university officials placed allegations of sexual harassment in his personnel files. And Lapides claimed that their doing so violated both Georgia law, see Georgia Tort Claims Act, Ga. Code Ann. § 50-21-23 (1994), and federal law, see Civil Rights Act of 1871, Rev. Stat. § 1979, 42 U.S. C. § 1983 (1994 ed., Supp. V). All defendants joined in removing the case to Federal District Court, 28 U.S. C. § 1441, where they sought dismissal. Those individuals whom Lapides had sued in their personal capacities argued that the doctrine of "qualified immunity" barred Lapides' federal-law claims against them. And the District Court agreed. The State, while conceding that a state statute had waived sovereign immunity from state-law suits in state court, argued that, by virtue of the Eleventh Amendment, it remained immune from suit in federal court. *617 See U. S. Const., Amdt. 11 (limiting scope of "Judicial power of the United States" (emphasis added)). But the District Court did not agree. Rather, in its view, by removing the case from state to federal court, the State had waived its Eleventh Amendment immunity. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 (1985) (State may waive Eleventh Amendment immunity). The State appealed the District Court's Eleventh Amendment ruling. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-145 (1993) (allowing interlocutory appeal). And the Court of Appeals for the Eleventh Circuit reversed. 251 F.3d 1372 (2001). In its view, state law was, at the least, unclear as to whether the State's attorney general possessed the legal authority to waive the State's Eleventh Amendment immunity. And, that being so, the State retained the legal right to assert its immunity, even after removal. See Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459 (1945). Lapides sought certiorari. We agreed to decide whether "a state waive[s] its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court . . . ." Pet. for Cert. (i). It has become clear that we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings. That is because Lapides' only federal claim against the State arises under 42 U.S. C. § 1983, that claim seeks only monetary damages, and we have held that a State is not a "person" against whom a § 1983 claim for money damages might be asserted. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989). Compare Tr. of Oral Arg. 57-58 (asserting that complaint also sought declaratory judgment on the federal claim), with complaint, App. 9-19 (failing, implicitly or explicitly, to seek any such relief). Hence this case does not present a valid federal claim against the State. Nor need we address the scope of waiver by removal in a *618 situation where the State's underlying sovereign immunity from suit has not been waived or abrogated in state court. It has also become clear that, in the absence of any viable federal claim, the Federal District Court might well remand Lapides' state-law tort claims against the State to state court. 28 U.S. C. § 1367(c)(3). Nonetheless, Lapides' statelaw tort claims against the State remain pending in Federal District Court, § 1367(a), and the law commits the remand question, ordinarily a matter of discretion, to the Federal District Court for decision in the first instance. Moor v. County of Alameda, 411 U.S. 693, 712 (1973). Hence, the question presented is not moot. We possess the legal power here to answer that question as limited to the state-law context just described. And, in light of differences of view among the lower courts, we shall do so. Compare McLaughlin v. Board of Trustees of State Colleges of Colo., 215 F.3d 1168, 1171 (CA10 2000) (removal waives immunity regardless of attorney general's state-law waiver authority); and Newfield House, Inc. v. Massachusetts Dept. of Public Welfare, 651 F.2d 32, 36, n. 3 (CA1 1981) (similar); with Estate of Porter ex rel. Nelson v. Illinois, 36 F.3d 684, 690-691 (CA7 1994) (removal does not waive immunity); Silver v. Baggiano, 804 F.2d 1211, 1214 (CA11 1986) (similar); and Gwinn Area Community Schools v. Michigan, 741 F.2d 840, 846-847 (CA6 1984) (similar). II The Eleventh Amendment provides that the "Judicial power of the United States shall not be construed to extend to any suit . . . commenced or prosecuted against one of the . . . States" by citizens of another State, U. S. Const., Amdt. 11, and (as interpreted) by its own citizens. Hans v. Louisiana, 134 U.S. 1 (1890). A State remains free to waive its Eleventh Amendment immunity from suit in a federal court. See, e. g., Atascadero, supra, at 238. And the question before us now is whether a State waives that immunity *619 when it removes a case from state court to federal court. It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the "Judicial power of the United States" extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the "Judicial power of the United States" extends to the case at hand. And a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results. Thus, it is not surprising that more than a century ago this Court indicated that a State's voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. Clark v. Barnard, 108 U.S. 436, 447 (1883) (State's "voluntary appearance" in federal court as an intervenor avoids Eleventh Amendment inquiry). The Court subsequently held, in the context of a bankruptcy claim, that a State "waives any immunity . . . respecting the adjudication of" a "claim" that it voluntarily files in federal court. Gardner v. New Jersey, 329 U.S. 565, 574 (1947). And the Court has made clear in general that "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment." Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284 (1906) (emphasis added). The Court has long accepted this statement of the law as valid, often citing with approval the cases embodying that principle. See, e. g., College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 681, n. 3 (1999) (citing Gardner ); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 294, and n. 10 (1973) (Marshall, J., concurring in result) (citing Clark ); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959) (citing Clark). *620 In this case, the State was brought involuntarily into the case as a defendant in the original state-court proceedings. But the State then voluntarily agreed to remove the case to federal court. See 28 U.S. C. § 1446(a); Chicago, R. I. & P. R. Co. v. Martin, 178 U.S. 245, 248 (1900) (removal requires the consent of all defendants). In doing so, it voluntarily invoked the federal court's jurisdiction. And unless we are to abandon the general principle just stated, or unless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply. We see no reason to abandon the general principle. Georgia points out that the cases that stand for the principle, Gunter, Gardner, and Clark, did not involve suits for money damages against the State—the heart of the Eleventh Amendment's concern. But the principle enunciated in those cases did not turn upon the nature of the relief sought. And that principle remains sound as applied to suits for money damages. Georgia adds that this Court decided Gunter, Gardner, and Clark before it decided more recent cases, which have required a "clear" indication of the State's intent to waive its immunity. College Savings Bank, 527 U. S., at 675-681. But College Savings Bank distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct. Id., at 681, n. 3. And this makes sense because an interpretation of the Eleventh Amendment that finds waiver in the litigation context rests upon the Amendment's presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State's actual preference or desire, which might, after all, favor selective use of "immunity" to achieve litigation advantages. See Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 393 (1998) (Kennedy, J., concurring). The relevant "clarity" here must focus on the litigation act the State takes that creates the waiver. And that act—removal—is clear. *621 Nor has Georgia pointed to any special feature, either of removal or of this case, that would justify taking the case out from under the general rule. Georgia argues that its motive for removal was benign. It agreed to remove, not in order to obtain litigating advantages for itself, but to provide its codefendants, the officials sued in their personal capacities, with the generous interlocutory appeal provisions available in federal, but not in state, court. Compare Mitchell v. Forsyth, 472 U.S. 511, 524-530 (1985) (authorizing interlocutory appeal of adverse qualified immunity determination), with Turner v. Giles, 264 Ga. 812, 813, 450 S.E.2d 421, 424 (1994) (limiting interlocutory appeals to those certified by trial court). And it intended, from the beginning, to return to state court, when and if its codefendants had achieved their own legal victory. A benign motive, however, cannot make the critical difference for which Georgia hopes. Motives are difficult to evaluate, while jurisdictional rules should be clear. See Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 426 (1916) (Holmes, J., concurring). To adopt the State's Eleventh Amendment position would permit States to achieve unfair tactical advantages, if not in this case, in others. See Schacht, supra, at 393-394, 398 (Kennedy, J., concurring); cf. ALI, Study of the Division of Jurisdiction Between State and Federal Courts 366-367 (1968) (discussing the unfairness of allowing one who has invoked federal jurisdiction subsequently to challenge that jurisdiction). And that being so, the rationale for applying the general "voluntary invocation" principle is as strong here, in the context of removal, as elsewhere. More importantly, Georgia argues that state law, while authorizing its attorney general "[t]o represent the state in all civil actions tried in any court," Ga. Code Ann. § 45-15-3(6) (1990); see Ga. Const., Art. 5, § 3, ¶ 4, does not authorize the attorney general to waive the State's Eleventh Amendment immunity, id., Art. 1, § 2, ¶¶ 9(e), (f), reprinted in 2 Ga. Code *622 Ann. (Supp. 1996). Georgia adds that in Ford, this Court unanimously interpreted roughly similar state laws similarly, that the Court held that "no properly authorized executive or administrative officer of the state has waived the state's immunity," 328 U.S., at 469, and that it sustained an Eleventh Amendment defense raised for the first time after a State had litigated a claim brought against it in federal court. That is to say, in Ford a State regained immunity by showing the attorney general's lack of statutory authority to waive— even after the State litigated a case brought against it in federal court. Why, then, asks Georgia, can it not regain immunity in the same way, even after it removed its case to federal court? The short answer to this question is that this case involves a State that voluntarily invoked the jurisdiction of the federal court, while Ford involved a State that a private plaintiff had involuntarily made a defendant in federal court. This Court consistently has found a waiver when a State's attorney general, authorized (as here) to bring a case in federal court, has voluntarily invoked that court's jurisdiction. See Gardner, 329 U. S., at 574-575; Gunter, 200 U. S., at 285-289, 292; cf. Clark, 108 U. S., at 447-448 (not inquiring into attorney general's authority). And the Eleventh Amendment waiver rules are different when a State's federal-court participation is involuntary. See Hans v. Louisiana, 134 U.S. 1 (1890); cf. U. S. Const., Amdt. 11 (discussing suits "commenced or prosecuted against" a State). But there is a more important answer. In large part the rule governing voluntary invocations of federal jurisdiction has rested upon the problems of inconsistency and unfairness that a contrary rule of law would create. Gunter, supra, at 284. And that determination reflects a belief that neither those who wrote the Eleventh Amendment nor the States themselves (insofar as they authorize litigation in federal courts) would intend to create that unfairness. As in analogous contexts, in which such matters are questions of federal *623 law, cf., e. g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, n. 5 (1997), whether a particular set of state laws, rules, or activities amounts to a waiver of the State's Eleventh Amendment immunity is a question of federal law. A rule of federal law that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness. A rule of federal law that, as in Ford, denies waiver despite the state attorney general's state-authorized litigating decision, does the opposite. For these reasons one Member of this Court has called for Ford' s reexamination. Schacht, 524 U. S., at 394, 397 (Kennedy, J., concurring). And for these same reasons, we conclude that Clark, Gunter, and Gardner represent the sounder line of authority. Finding Ford inconsistent with the basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise apply. The State makes several other arguments, none of which we find convincing. It points to cases in which this Court has permitted the United States to enter into a case voluntarily without giving up immunity or to assert immunity despite a previous effort to waive. See United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940); United States v. Shaw, 309 U.S. 495 (1940); see also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505 (1991). Those cases, however, do not involve the Eleventh Amendment—a specific text with a history that focuses upon the State's sovereignty vis-à-vis the Federal Government. And each case involves special circumstances not at issue here, for example, an effort by a sovereign (i. e., the United States) to seek the protection of its own courts (i. e., the federal courts), or an effort to protect an Indian tribe. Finally, Georgia says that our conclusion will prove confusing, for States will have to guess what conduct might be deemed a waiver in order to avoid accidental waivers. But we believe the rule is a clear one, easily applied by both *624 federal courts and the States themselves. It says that removal is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the State's otherwise valid objection to litigation of a matter (here of state law) in a federal forum. As Justice Kennedy has pointed out, once "the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal." See Schacht, supra, at 397 (concurring opinion). We conclude that the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity—though, as we have said, the District Court may well find that this case, now raising only state-law issues, should nonetheless be remanded to the state courts for determination. 28 U.S. C. § 1367(c)(3). For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered.

The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U. S. Const., Amdt. 11, and by its own citizens as well, The question before us is whether the State's act of removing a lawsuit from state court to federal court waives this immunity. We hold that it does. I Paul Lapides, a professor employed by the Georgia state university system, brought this lawsuit in a Georgia state court. He sued respondents, the Board of Regents of the University System of Georgia (hereinafter Georgia or State) and university officials acting in both their personal capacities and as agents of the State. Lapides' lawsuit alleged that university officials placed allegations of sexual harassment in his personnel files. And Lapides claimed that their doing so violated both Georgia law, see Georgia Tort Claims Act, and federal law, see Civil Rights Act of 1871, Rev. Stat. 1979, 42 U.S. C. 1983 ( ed., Supp. V). All defendants joined in removing the case to Federal District Court, 28 U.S. C. 1441, where they sought dismissal. Those individuals whom Lapides had sued in their personal capacities argued that the doctrine of "qualified immunity" barred Lapides' federal-law claims against them. And the District Court agreed. The State, while conceding that a state statute had waived sovereign immunity from state-law suits in state court, argued that, by virtue of the Eleventh Amendment, it remained immune from suit in federal court. *617 See U. S. Const., Amdt. 11 (limiting scope of "Judicial power of the United States" ). But the District Court did not agree. Rather, in its view, by removing the case from state to federal court, the State had waived its Eleventh Amendment immunity. See State The State appealed the District Court's Eleventh Amendment ruling. See Puerto Rico Aqueduct and Sewer And the Court of Appeals for the Eleventh Circuit reversed. In its view, state law was, at the least, unclear as to whether the State's attorney general possessed the legal authority to waive the State's Eleventh Amendment immunity. And, that being so, the State retained the legal right to assert its immunity, even after removal. See Ford Motor Lapides sought certiorari. We agreed to decide whether "a state waive[s] its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court" Pet. for Cert. (i). It has become clear that we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings. That is because Lapides' only federal claim against the State arises under 42 U.S. C. 1983, that claim seeks only monetary damages, and we have held that a State is not a "person" against whom a 1983 claim for money damages might be asserted. Compare Tr. of Oral Arg. 57-58 (asserting that complaint also sought declaratory judgment on the federal claim), with complaint, App. 9-19 (failing, implicitly or explicitly, to seek any such relief). Hence this case does not present a valid federal claim against the State. Nor need we address the scope of waiver by removal in a *618 situation where the State's underlying sovereign immunity from suit has not been waived or abrogated in state court. It has also become clear that, in the absence of any viable federal claim, the Federal District Court might well remand Lapides' state-law tort claims against the State to state court. 28 U.S. C. 1367(c)(3). Nonetheless, Lapides' statelaw tort claims against the State remain pending in Federal District Court, 1367(a), and the law commits the remand question, ordinarily a matter of discretion, to the Federal District Court for decision in the first instance. Hence, the question presented is not moot. We possess the legal power here to answer that question as limited to the state-law context just described. And, in light of differences of view among the lower courts, we shall do so. Compare ; and Newfield House, ; with Estate of Porter ex rel. ; ; and Gwinn Area Community II The Eleventh Amendment provides that the "Judicial power of the United States shall not be construed to extend to any suit commenced or prosecuted against one of the States" by citizens of another State, U. S. Const., Amdt. 11, and (as interpreted) by its own citizens. A State remains free to waive its Eleventh Amendment immunity from suit in a federal court. See, e. g., at And the question before us now is whether a State waives that immunity *619 when it removes a case from state court to federal court. It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the "Judicial power of the United States" extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the "Judicial power of the United States" extends to the case at hand. And a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results. Thus, it is not surprising that more than a century ago this Court indicated that a State's voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. The Court subsequently held, in the context of a bankruptcy claim, that a State "waives any immunity respecting the adjudication of" a "claim" that it voluntarily files in federal court. And the Court has made clear in general that "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment." The Court has long accepted this statement of the law as valid, often citing with approval the cases embodying that principle. See, e. g., College Savings 527 U.S. 6, ; Employees of Dept. of Public Health and Welfare of (citing ); *620 In this case, the State was brought involuntarily into the case as a defendant in the original state-court proceedings. But the State then voluntarily agreed to remove the case to federal court. See 28 U.S. C. 1446(a); Chicago, R. I. & P. R. In doing so, it voluntarily invoked the federal court's jurisdiction. And unless we are to abandon the general principle just stated, or unless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply. We see no reason to abandon the general principle. Georgia points out that the cases that stand for the principle, and did not involve suits for money damages against the State—the heart of the Eleventh Amendment's concern. But the principle enunciated in those cases did not turn upon the nature of the relief sought. And that principle remains sound as applied to suits for money damages. Georgia adds that this Court decided and before it decided more recent cases, which have required a "clear" indication of the State's intent to waive its immunity. College Savings -681. But College Savings distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct. at And this makes sense because an interpretation of the Eleventh Amendment that finds waiver in the litigation context rests upon the Amendment's presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State's actual preference or desire, which might, after all, favor selective use of "immunity" to achieve litigation advantages. See Wisconsin Dept. of The relevant "clarity" here must focus on the litigation act the State takes that creates the waiver. And that act—removal—is clear. *621 Nor has Georgia pointed to any special feature, either of removal or of this case, that would justify taking the case out from under the general rule. Georgia argues that its motive for removal was benign. It agreed to remove, not in order to obtain litigating advantages for itself, but to provide its codefendants, the officials sued in their personal capacities, with the generous interlocutory appeal provisions available in federal, but not in state, court. Compare with And it intended, from the beginning, to return to state court, when and if its codefendants had achieved their own legal victory. A benign motive, however, cannot make the critical difference for which Georgia hopes. Motives are difficult to evaluate, while jurisdictional rules should be clear. See Hanover Star Milling To adopt the State's Eleventh Amendment position would permit States to achieve unfair tactical advantages, if not in this case, in others. See at -394, 398 ; cf. ALI, Study of the Division of Jurisdiction Between State and Federal Courts 3-367 (1968) (discussing the unfairness of allowing one who has invoked federal jurisdiction subsequently to challenge that jurisdiction). And that being so, the rationale for applying the general "voluntary invocation" principle is as strong here, in the context of removal, as elsewhere. More importantly, Georgia argues that state law, while authorizing its attorney general "[t]o represent the state in all civil actions tried in any court," Ga. Code Ann. 45-15-3(6) (1990); see Ga. Const., Art. 5, 3, ¶ 4, does not authorize the attorney general to waive the State's Eleventh Amendment immunity, Art. 1, 2, ¶¶ 9(e), (f), reprinted in 2 Ga. Code *622 Ann. (Supp. 1996). Georgia adds that in Ford, this Court unanimously interpreted roughly similar state laws similarly, that the Court held that "no properly authorized executive or administrative officer of the state has waived the state's immunity," and that it sustained an Eleventh Amendment defense raised for the first time after a State had litigated a claim brought against it in federal court. That is to say, in Ford a State regained immunity by showing the attorney general's lack of statutory authority to waive— even after the State litigated a case brought against it in federal court. Why, then, asks Georgia, can it not regain immunity in the same way, even after it removed its case to federal court? The short answer to this question is that this case involves a State that voluntarily invoked the jurisdiction of the federal court, while Ford involved a State that a private plaintiff had involuntarily made a defendant in federal court. This Court consistently has found a waiver when a State's attorney general, authorized (as here) to bring a case in federal court, has voluntarily invoked that court's jurisdiction. See 329 U. S., at -575; -289, 292; cf. 108 U. S., at -448 And the Eleventh Amendment waiver rules are different when a State's federal-court participation is involuntary. See ; cf. U. S. Const., Amdt. 11 (discussing suits "commenced or prosecuted against" a State). But there is a more important answer. In large part the rule governing voluntary invocations of federal jurisdiction has rested upon the problems of inconsistency and unfairness that a contrary rule of law would create. at And that determination reflects a belief that neither those who wrote the Eleventh Amendment nor the States themselves (insofar as they authorize litigation in federal courts) would intend to create that unfairness. As in analogous contexts, in which such matters are questions of federal *623 law, cf., e. g., Regents of Univ. of whether a particular set of state laws, rules, or activities amounts to a waiver of the State's Eleventh Amendment immunity is a question of federal law. A rule of federal law that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness. A rule of federal law that, as in Ford, denies waiver despite the state attorney general's state-authorized litigating decision, does the opposite. For these reasons one Member of this Court has called for Ford' s reexamination. 397 And for these same reasons, we conclude that and represent the sounder line of authority. Finding Ford inconsistent with the basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise apply. The State makes several other arguments, none of which we find convincing. It points to cases in which this Court has permitted the United States to enter into a case voluntarily without giving up immunity or to assert immunity despite a previous effort to waive. See United ; United ; see also Oklahoma Tax Those cases, however, do not involve the Eleventh Amendment—a specific text with a history that focuses upon the State's sovereignty vis-à-vis the Federal Government. And each case involves special circumstances not at issue here, for example, an effort by a sovereign (i. e., the United States) to seek the protection of its own courts (i. e., the federal courts), or an effort to protect an Indian tribe. Finally, Georgia says that our conclusion will prove confusing, for States will have to guess what conduct might be deemed a waiver in order to avoid accidental waivers. But we believe the rule is a clear one, easily applied by both *624 federal courts and the States themselves. It says that removal is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the State's otherwise valid objection to litigation of a matter (here of state law) in a federal forum. As Justice Kennedy has pointed out, once "the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal." See We conclude that the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity—though, as we have said, the District Court may well find that this case, now raising only state-law issues, should nonetheless be remanded to the state courts for determination. 28 U.S. C. 1367(c)(3). For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered.

Justice Stevens

majority

Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson

2010-03-30

https://www.courtlistener.com/opinion/1726/graham-county-soil-and-water-conservation-dist-v-united-states-ex-rel/

https://www.courtlistener.com/api/rest/v3/clusters/1726/

2009-037

Since its enactment during the Civil War, the False Claims Act, 31 U.S. C. §§3729–3733, has authorized both the Attorney General and private qui tam relators to recover from persons who make false or fraudulent claims for payment to the United States. The Act now contains a provision barring qui tam actions based upon the public disclosure of allegations or transactions in certain speci fied sources. §3730(e)(4)(A). The question before us is whether the reference to “administrative” reports, audits, and investigations in that provision encompasses disclo sures made in state and local sources as well as federal sources. We hold that it does.1 —————— 1 On March 23, 2010, the President signed into law the Patient Pro tection and Affordable Care Act, Pub. L. 111–148, 124 Stat. 119. Section 10104(j)(2) of this legislation replaces the prior version of 31 U.S. C. §3730(e)(4) with new language. The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 948 (1997). Throughout this opinion, we use the present 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court I In 1995 the United States Department of Agriculture (USDA) entered into contracts with two counties in North Carolina authorizing them to perform, or to hire others to perform, cleanup and repair work in areas that had suf fered extensive flooding. The Federal Government agreed to shoulder 75 percent of the contract costs. Respondent Karen T. Wilson was at that time an employee of the Graham County Soil and Conservation District, a special purpose government body that had been delegated partial responsibility for coordinating and performing the reme diation effort. Suspecting possible fraud in connection with this effort, Wilson voiced her concerns to local offi cials in the summer of 1995. She also sent a letter to, and had a meeting with, agents of the USDA. Graham County officials began an investigation. An accounting firm hired by the county performed an audit and, in 1996, issued a report (Audit Report) that identified several potential irregularities in the county’s administra tion of the contracts. Shortly thereafter, the North Caro lina Department of Environment, Health, and Natural Resources issued a report (DEHNR Report) identifying similar problems. The USDA’s Office of Inspector General eventually issued a third report that contained additional findings. In 2001 Wilson filed this action, alleging that petition ers, the Graham County and Cherokee County Soil and Water Conservation Districts and a number of local and federal officials, violated the False Claims Act (FCA) by knowingly submitting false claims for payment pursuant to the 1995 contracts. She further alleged that petitioners retaliated against her for aiding the federal investigation of those false claims. Following this Court’s review of the —————— tense in discussing the statute as it existed at the time this case was argued. Cite as: 559 U. S. ____ (2010) 3 Opinion of the Court statute of limitations applicable to Wilson’s retaliation claim, Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005), the Court of Appeals ordered that that claim be dismissed as time barred. 424 F.3d 437 (CA4 2005). On remand, the District Court subsequently dismissed Wilson’s qui tam action for lack of jurisdiction. App. to Pet. for Cert. 95a– 105a. The court found that Wilson had failed to refute that her action was based upon allegations publicly dis closed in the Audit Report and the DEHNR Report. Id., at 95a–98a. Those reports, the District Court determined, constituted “administrative . . . report[s], . . . audit[s], or investigation[s]” within the meaning of the FCA’s public disclosure bar, 31 U.S. C. §3730(e)(4)(A). The Court of Appeals reversed the judgment of the District Court because the reports had been generated by state and local entities. “[O]nly federal administrative reports, audits or investigations,” the Fourth Circuit concluded, “qualify as public disclosures under the FCA.” 528 F.3d 292, 301 (2008) (emphasis added). The Circuits having divided over this issue,2 we granted certiorari to resolve the conflict. 557 U. S. __ (2009). —————— 2 Compare 528 F.3d, at 301–307 (limiting this portion of the public disclosure bar to federal sources), and United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745–746 (CA3 1997) (same), with United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 918–919 (CA9 2006) (concluding that state and local sources may qualify), cert. denied, 552 U.S. 1165 (2008), and Battle v. Board of Regents for State of Ga., 468 F.3d 755, 762 (CA11 2006) (per curiam) (assuming without analysis that state audits may qualify). The Eighth Circuit appears to have taken a “middle road” on this issue, 528 F.3d, at 301, holding that disclosures made in nonfederal forums may count as “ ‘administrative . . . report[s]’ ” or “ ‘audit[s]’ ” under §3730(e)(4)(A) in some instances, as when they relate to “a cooperative federal-state program through which the federal government provides financial assistance.” Hays v. Hoff man, 325 F.3d 982, 989, cert. denied, 540 U.S. 877 (2003). 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court II We have examined the FCA’s qui tam provisions in several recent opinions.3 At issue in this case is the FCA’s public disclosure bar, which deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain chan nels. The statute contains three categories of jurisdiction stripping disclosures. Following the example of the Court of Appeals, see 528 F.3d, at 300–301, we have inserted Arabic numerals to identify these categories: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions [1] in a criminal, civil, or admin istrative hearing, [2] in a congressional, administra tive, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation, or [3] from the news media, unless the action is brought by the Attorney General or the person bringing the action is an origi nal source[4] of the information.” §3730(e)(4)(A) (foot note omitted). This dispute turns on the meaning of the adjective “ad ministrative” in the second category (Category 2): whether it embraces only forums that are federal in nature, as respondent alleges, or whether it extends to disclosures made in state and local sources such as the DEHNR Re —————— 3 See, e.g., Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007) (construing §3730(e)(4)(A)’s original source exception); Cook County v. United States ex rel. Chandler, 538 U.S. 119 (2003) (holding that local governments are subject to qui tam liability); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000) (holding that States are not subject to private FCA actions). 4 A separate statutory provision defines an “original source” as “an individual who has direct and independent knowledge of the informa tion on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” 31 U.S. C. §3730(e)(4)(B). Cite as: 559 U. S. ____ (2010) 5 Opinion of the Court port and the Audit Report, as petitioners allege. In debating this question, petitioners have relied pri marily on the statute’s text whereas respondent and the Solicitor General, as her amicus, have relied heavily on considerations of history and policy. Although there is some overlap among the three types of argument, it is useful to discuss them separately. We begin with the text. III The term “administrative” “may, in various contexts, bear a range of related meanings,” Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 103, n. 8 (1970) (Harlan, J., concurring in denial of writ), pertaining to private bodies as well as to governmental bodies. When used to modify the nouns “report, hearing, audit, or inves tigation,” in the context of a statutory provision about “the public disclosure” of fraud on the United States, the term is most naturally read to describe the activities of govern mental agencies. See Black’s Law Dictionary 49 (9th ed. 2009) (hereinafter Black’s) (defining “administration,” “[i]n public law, [as] the practical management and direction of the executive department and its agencies”). Given that “administrative” is not itself modified by “federal,” there is no immediately apparent textual basis for excluding the activities of state and local agencies (or their contractors) from its ambit. As the Court of Appeals recognized, “the statute by its express terms does not limit its reach to federal administrative reports or investigations.” 528 F.3d, at 301. “[T]here is nothing inherently federal about the word ‘administrative,’ and Congress did not define the term in the FCA.” Id., at 302. The Court of Appeals’ conclusion that “administrative” nevertheless reaches only federal sources rested on its application of the interpretive maxim noscitur a sociis. See id., at 302–305. This maxim, literally translated as “ ‘it is known by its associates,’ ” Black’s 1160, counsels 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court lawyers reading statutes that “a word may be known by the company it keeps,” Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923). All participants in this litigation acknowledge that the terms “congressional” and “[GAO]” are federal in nature; Congress is the Legislative Branch of the Federal Government,5 and the GAO is a federal agency.6 Relying on our opinions in S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U.S. 370 (2006), and Beecham v. United States, 511 U.S. 368 (1994), the Court of Appeals reasoned that “the placement of ‘administrative’ squarely in the middle of a list of obvi ously federal sources strongly suggests that ‘administra tive’ should likewise be restricted to federal administrative reports, hearings, audits, or investigations.” 528 F.3d, at 302. In so holding, the Court of Appeals embraced what we might call the Sandwich Theory of the Third Circuit. Both courts “ ‘f[ou]nd it hard to believe that the drafters of this provision intended the word “administrative” to refer to both state and federal reports when it lies sandwiched between modifiers which are unquestionably federal in character.’ ” Ibid. (quoting United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (CA3 1997)). We find this use of noscitur a sociis unpersuasive. A list —————— 5 SeeU. S. Const., Art. I, §1; id., §4, cl. 1 (distinguishing “State . . . Legislature[s]” from “the Congress”). 6 The statute refers to the GAO, mistakenly, as the “Government Accounting Office.” It is undisputed that the intended referent was the General Accounting Office, now renamed the Government Accountabil ity Office. See 31 U.S. C. §3730, p. 254, n. 2 (compiler’s note); 528 F.3d 292, 300, n. 4 (CA4 2008); United States ex rel. Mistick PBT v. Housing Authority of Pittsburgh, 186 F.3d 376, 387 (CA3 1999) (Alito, J.), cert. denied, 529 U.S. 1018 (2000); see also Mistick, 186 F.3d, at 398 (Becker, C. J., dissenting) (noting that courts have “frequently” made the same scrivener’s error). We have described the GAO as “an inde pendent agency within the Legislative Branch that exists in large part to serve the needs of Congress.” Bowsher v. Merck & Co., 460 U.S. 824, 844 (1983). Cite as: 559 U. S. ____ (2010) 7 Opinion of the Court of three items, each quite distinct from the other no mat ter how construed, is too short to be particularly illuminat ing. Although this list may not be “completely disjunc tive,” 528 F.3d, at 302—it refers to “congressional, administrative, or [GAO]” sources, §3730(e)(4)(A), rather than “congressional, or administrative, or [GAO]” sources—neither is it completely harmonious. The sub stantive connection, or fit, between the terms “congres sional,” “administrative,” and “GAO” is not so tight or so self-evident as to demand that we “rob” any one of them “of its independent and ordinary significance.” Reiter v. Sonotone Corp., 442 U.S. 330, 338–339 (1979); see also Russell, 261 U.S., at 519 (“That a word may be known by the company it keeps is . . . not an invariable rule, for the word may have a character of its own not to be submerged by its association”). The adjectives in Category 2 are too few and too disparate to qualify as “a string of statutory terms,” S. D. Warren Co., 547 U.S., at 378, or “items in a list,” Beecham, 511 U.S., at 371, in the sense that we used those phrases in the cited cases.7 —————— 7 In Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961), the Court applied the noscitur a sociis maxim in construing a statutory provision that referred to “ ‘[i]ncome resulting from exploration, discovery, or prospecting,’ ” id., at 305 (quoting §456(a)(2)(B) of the Internal Revenue Code of 1939). JUSTICE SOTOMAYOR contends that “the three terms in Category 2 are no more ‘distinct’ or ‘disparate’ than the phrase at issue in Jarecki.” Post, at 4 (dissenting opinion) (citation omitted). We disagree. Whether taken in isolation or in context, the phrase “con gressional, administrative, or GAO” is not as cohesive as the phrase “exploration, discovery, or prospecting.” That is one reason why nosci tur a sociis proved illuminating in Jarecki, and why it is less helpful in this case. On their “face,” the terms “exploration,” “discovery,” and “prospecting” all describe processes of searching, seeking, speculating; the centrality of such activities to “the oil and gas and mining indus tries” gave a clue that it was those industries Congress had in mind when it drafted the provision. 367 U.S., at 307 (internal quotation marks omitted). The terms “congressional,” “administrative,” and “GAO” do not share any comparable core of meaning—or indeed any 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court More important, we need to evaluate “administrative” within the larger scheme of the public disclosure bar. Both parties acknowledge, as they must, that “[s]tatutory language has meaning only in context,” Graham County Soil, 545 U.S., at 415; where they differ is in determining the relevant context. The Sandwich Theory presupposes that Category 2 is the only piece of §3730(e)(4)(A) that matters. We agree with petitioners, however, that all of the sources listed in §3730(e)(4)(A) provide interpretive guidance. All of these sources drive at the same end: specifying the types of disclosures that can foreclose qui tam actions. In light of the public disclosure bar’s gram matical structure, it may be convenient and even clarify ing to parse the list of sources into three categories. But it does not follow that we should treat these categories as islands unto themselves. Courts have a “duty to construe statutes, not isolated provisions.” Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995). When we consider the entire text of the public disclosure bar, the case for limiting “administrative” to federal sources becomes significantly weaker. The “news media” referenced in Category 3 plainly have a broader sweep. The Federal Government funds certain media outlets, and certain private outlets have a national focus; but no one contends that Category 3 is limited to these sources. There is likewise no textual basis for assuming that the “criminal, civil, or administrative hearing[s]” listed in Category 1 must be federal hearings.8 Of the numerous —————— “common feature” at all, post, at 4—apart from a governmental conno tation. It takes the Sandwich Theory to graft a federal limitation onto “administrative.” 8 A number of lower courts have concluded that, as used in Category 1, “ ‘hearing’ is roughly synonymous with ‘proceeding.’ ” United States ex rel. Springfield Terminal R. Co. v. Quinn, 14 F.3d 645, 652 (CADC 1994); see also 1 J. Boese, Civil False Claims and Qui Tam Actions §4.02[B], p. 4–59, and n. 231 (3d ed. 2006) (hereinafter Boese); C. Cite as: 559 U. S. ____ (2010) 9 Opinion of the Court types of sources that serve a common function in §3730(e)(4)(A), then, only two are distinctly federal in nature, while one (the news media) is distinctly nonfederal in nature. If the Court of Appeals was correct that the term “ad ministrative” encompasses state and local sources in Category 1, see 528 F.3d, at 303, it becomes even harder to see why the term would not do the same in Category 2. See Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) (“[A] legislative body generally uses a particular word with a consistent meaning in a given context”). Respondent and the Solicitor General assert that §3730(e)(4)(A)’s two references to “administrative” can be distinguished be cause Category 1 is best understood to refer to adjudica tive proceedings, whereas Category 2 is best understood to refer to legislative or quasi-legislative activities such as rulemaking, oversight, and investigations. See Brief for Respondent 16–18; Brief for United States as Amicus Curiae 25–26 (hereinafter Brief for United States). Yet even if this reading were correct, state and local adminis trative reports, hearings, audits, and investigations of a legislative-type character are presumably just as public, and just as likely to put the Federal Government on notice of a potential fraud, as state and local administrative hearings of an adjudicatory character.9 —————— Sylvia, The False Claims Act: Fraud Against the Government §11:35, p. 642 (2004) (hereinafter Sylvia). 9 See Bly-Magee, 470 F.3d, at 918 (“Indeed, the statute would seem to be inconsistent if it included state and local administrative hearings as sources of public disclosures [in Category 1] and then, in the next breath, excluded state administrative reports as sources”); In re Natu ral Gas Royalties Qui Tam Litigation, 467 F. Supp. 2d 1117, 1143–1144 (Wyo. 2006) (“There is no reason to conclude that Congress intended to limit administrative reports, audits, and investigations to federal actions, while simultaneously allowing all state and local civil litiga tion, state and local administrative hearings, and state and local news media to be treated as public disclosures. To interpret the statute so 10 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and the Solicitor General try to avoid this inference, and to turn a weakness into a strength, by further averring that the sources listed in Category 1 are themselves only federal. See Brief for Respondent 23–24; Brief for United States 25–26. No court has ever taken such a view of these sources. See 528 F.3d, at 303 (citing cases from the Third, Fourth, Fifth, Ninth, and Eleventh Circuits and stating that “[t]he courts have easily con cluded that [Category 1] applies to state-level hearings”); Sylvia §11:37, at 643, n. 1 (citing additional cases).10 The arguments in favor of reading a federal limitation into Category 1 are supported, if at all, by legislative history and policy; they find no support in the statute’s text. Moving from the narrow lens of the Sandwich Theory to a bird’s eye view, respondent and the Solicitor General also maintain that the “exclusively federal focus” of the FCA counsels against reading the public disclosure bar to encompass nonfederal sources. Brief for Respondent 10, 18; Brief for United States 13. The FCA undoubtedly has a federal focus. But so does every other federal statute. —————— narrowly would have the anomalous result of allowing public disclosure status to the most obscure local news report and the most obscure state and local civil lawsuit or administrative hearing, but denying public disclosure status to a formal public report of a state government agency”). 10 Following the Court of Appeals, see 528 F.3d, at 303, respondent asserts that only the Ninth Circuit, in A-1 Ambulance Serv., Inc. v. California, 202 F.3d 1238, 1244 (2000), has explicitly considered and rejected the argument that Category 1 is limited to federal sources. Brief for Respondent 23–24. At least one other Circuit, however, has done the same, see United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1161, n. 6 (CA10 1999), and no lower court, as far as we are aware, has so much as suggested that an alternative construction might be viable. Moreover, the Third, Fifth, and Eleventh Circuit cases cited by the Court of Appeals postdate A-1 Ambulance and Dunleavy, 123 F.3d 734, both of which put litigants and courts on notice of the possibility that §3730(e)(4)(A) might be limited to federal sources. Cite as: 559 U. S. ____ (2010) 11 Opinion of the Court And as respondent and the Solicitor General elsewhere acknowledge, quite a few aspects of the FCA, including a reference to “administrative” proceedings in §3733(l) (7)(A)11 and the reference to “news media” in §3730(e)(4)(A) itself, are not just federal. In any event, the “federal focus” of the statute, as a whole, does not shine light on the specific question whether the public disclosure bar extends to certain nonfederal contexts. It is the fact of “public disclosure”—not Federal Government creation or receipt—that is the touchstone of §3730(e)(4)(A). Respondent and the Solicitor General make one last argument grounded in the statutory text: It would be anomalous, they say, for state and local administrative reports to count as public disclosures, when state legisla tive reports do not. See Brief for Respondent 15; Brief for United States 15–16. Yet neither respondent nor the Solicitor General disputes the contention of petitioners and their amici that, at the time the public disclosure bar was enacted in 1986, Congress rarely gave state legisla tures a meaningful role in administering or overseeing federally funded programs. See Brief for Petitioners 36– 39; Brief for National League of Cities et al. as Amici Curiae 8–13. As in the instant case, the Federal Govern ment was far more likely to enter into contracts with, and to provide moneys to, state and local executive agencies. Whether or not state legislative sources should have been included in §3730(e)(4)(A), their exclusion therefore car ries no clear implications for the status of state adminis trative sources. In sum, although the term “administrative” may be sandwiched in Category 2 between terms that are federal —————— 11 On its face, §3733(l)(7)(A) is silent as to whether it includes nonfed eral proceedings. Respondent and the Solicitor General suggest that it does, though they fairly argue that this provision, relating to civil investigative demands, has little if any relevance to the case at hand. See Brief for Respondent 21, n. 8; Brief for United States 31–32. 12 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court in nature, those terms are themselves sandwiched be tween phrases that have been generally understood to include nonfederal sources; and one of those phrases, in Category 1, contains the exact term that is the subject of our inquiry. These textual clues negate the force of the noscitur a sociis canon, as it was applied by the Court of Appeals.12 We are not persuaded that the associates with which “administrative” keeps company in §3730(e)(4)(A) endow it with an exclusively federal character. IV As originally enacted, the FCA did not limit the sources from which a relator could acquire the information to bring a qui tam action. In United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943), we upheld the relator’s recov ery even though he had discovered the fraud by reading a federal criminal indictment—a quintessential “parasitic” suit. Id., at 545–548; see id., at 545 (“Even if, as the gov ernment suggests, the petitioner has contributed nothing to the discovery of this crime, he has contributed much to accomplishing one of the purposes for which the Act was passed”). Congress promptly reacted to that decision by amending the statute to preclude qui tam actions “based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, —————— 12 The Court of Appeals repeatedly referred to the three categories in §3730(e)(4)(A) as “clauses.” See 528 F.3d, at 300–305. Were they in fact clauses rather than prepositional phrases, reliance on noscitur a sociis might have been supported by one of our earliest cases using that term, Watson v. Mercer, 8 Pet. 88, 105 (1834) (Reporter’s statement of the case), which suggested that “different clauses of the same sen tence” should be presumed “to embrace the subject matter of the sentence.” The Court of Appeals’ mistaken reference to “clauses” is of course less significant than its failure to treat the public disclosure bar as an integrated whole. Cf. Stevens, The Shakespeare Canon of Statu tory Construction, 140 U. Pa. L. Rev. 1373, 1376 (1992) (emphasizing importance of reading provisions in their broader statutory context). Cite as: 559 U. S. ____ (2010) 13 Opinion of the Court at the time such suit was brought.” Act of Dec. 23, 1943, 57 Stat. 609 (codified at 31 U.S. C. §232(C) (1946 ed.)). This amendment erected what came to be known as a Government knowledge bar: “[O]nce the United States learned of a false claim, only the Government could assert its rights under the FCA against the false claimant.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 949 (1997) (internal quotation marks omitted). In the years that followed the 1943 amendment, the vol ume and efficacy of qui tam litigation dwindled. “Seeking the golden mean between adequate incentives for whistle blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own,” United States ex rel. Springfield Terminal R. Co. v. Quinn, 14 F.3d 645, 649 (CADC 1994), Congress overhauled the statute once again in 1986 “to make the FCA a ‘more useful tool against fraud in modern times,’ ” Cook County v. United States ex rel. Chandler, 538 U.S. 119, 133 (2003) (quoting S. Rep. No. 99–345, p. 2 (1986) (hereinafter S. Rep.)). The present text of §3730(e)(4) was enacted in 1986 as part of this larger reform. Congress apparently concluded that a total bar on qui tam actions based on information already in the Government’s possession thwarted a sig nificant number of potentially valuable claims. Rather than simply repeal the Government knowledge bar, how ever, Congress replaced it with the public disclosure bar in an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits such as the one in Hess. How exactly §3730(e)(4) came to strike this balance in the way it did is a matter of consid erable uncertainty. The House and Senate Judiciary Committees each reported bills that contained very differ ent public disclosure bars from the one that emerged in the Statutes at Large; the Senate bill, for example, did not 14 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court include the words “administrative,” “audit,” or “investiga tion” in its version of Category 2, nor did it contain an original source exception. See S. Rep., at 42–43 (text of proposed §3730(e)(4)).13 In respondent and her amici’s view, this background counsels in favor of an exclusively federal interpretation of “administrative” for three separate reasons. First, the drafting history of the public disclosure bar suggests that Congress intended such a result. Second, a major aim of the 1986 amendments was to limit the scope of the Gov ernment knowledge bar, and “[c]onstruing [§3730(e)(4)(A)] as limited to disclosures in federal proceedings furthers Congress’s purpose ‘to encourage more private enforce ment suits.’ ” Brief for United States 21 (quoting S. Rep., at 23–24). Third, whereas federal administrative proceed ings can be presumed to provide the Attorney General with a fair opportunity to decide whether to bring an FCA action based on revelations made therein, the Attorney General is much less likely to learn of fraud disclosed in state proceedings. Respondent and her amici further maintain that it would be perverse to include nonfederal sources in Category 2, as local governments would then be able to shield themselves from qui tam liability by dis cretely disclosing evidence of fraud in “public” reports.14 These arguments are reasonable so far as they go, but they do not go very far. As many have observed, the draft ing history of the public disclosure bar raises more ques tions than it answers.15 Significant substantive changes— —————— 13 See also H. R. Rep. No. 99–660, pp. 2–3 (1986) (text of proposed §3730(b)(5)). The public disclosure bar that was enacted more closely resembles the version in the Senate bill. 14 State governments are already shielded from qui tam liability un der our precedent. Stevens, 529 U.S. 765. 15 See, e.g., Dunleavy, 123 F.3d, at 745 (“Congress gave us little spe cific guidance to determine the scope of public disclosure sources”); United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P. A. v. Cite as: 559 U. S. ____ (2010) 15 Opinion of the Court including the introduction of the term we are construing in this case—were inserted without floor debate, as “techni cal” amendments. That the original Senate bill mentioned only congressional and GAO sources in Category 2 is therefore of little moment. Neither the House nor the Senate Committee Report explained why a federal limita tion would be appropriate, and the subsequent addition of “administrative” sources to this Category might be taken as a sign that such a limitation was rejected by the full Chambers.16 —————— Prudential Ins. Co., 944 F.2d 1149, 1154 (CA3 1991) (“The bill that eventuated in the 1986 amendments underwent substantial revisions during its legislative path. This provides ample opportunity to search the legislative history and find some support somewhere for almost any construction of the many ambiguous terms in the final version”); id., at 1163 (Scirica, J., dissenting) (“One difficulty in interpreting the 1986 amendments is that Congress was never completely clear about what kind of ‘parasitic’ suits it was attempting to avoid”); Boese §4.02[A], at 4–46 (“The present Section 3730(e)(4) was enacted . . . without explana tion by Congress”); id., §4.02[A], at 4–47 to 4–48 (“[A]pplicable legisla tive history explaining versions [of §3730(e)(4)] not adopted is of little help in deciphering this provision. Because Section 3730(e)(4) was drafted subsequent to the completion of the House and Senate Commit tee reports on the proposed False Claims Act Amendments, those reports, which contained discussion of altogether different bars, cannot be used in interpreting it. And the sponsors’ interpretations of the provision ultimately enacted . . . are spare, often incorrect, and wide ranging enough to provide some support for almost any construction of its many ambiguities”). 16 JUSTICE SOTOMAYOR makes a valiant effort to unearth from the legislative history “the balance Congress evidently sought to achieve through the 1986 amendments.” Post, at 10. But her reconstruction of the history assigns little weight to the side of this balance preserved by the public disclosure bar: the desire to minimize “the potential for parasitic lawsuits by those who learn of the fraud through public channels and seek remuneration although they contributed nothing to the exposure of the fraud,” United States ex rel. Doe v. John Doe Corp., 960 F.2d 318, 319 (CA2 1992). And her narrative contains no account of why Category 2 emerged in the form that it did. Any such account would necessarily be an exercise in speculation, as the record is silent 16 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and her amici place particular emphasis on a remark made by the lead sponsor of the Senate bill, Senator Grassley. See Brief for Respondent 29; Brief for United States 20; Brief for American Center for Law and Justice as Amicus Curiae 13–14; Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 30–31. In a floor statement, Grassley said that “the term ‘Gov ernment’ in the definition of original source is meant to include any Government source of disclosures cited in [the public disclosure bar]; that is[,] Government includes Congress, the General Accounting Office, any executive or independent agency as well as all other governmental bodies that may have publicly disclosed the allegations.” 132 Cong. Rec. 20536 (1986). Yet even if a single sentence by a single legislator were entitled to any meaningful weight, Senator Grassley’s remark merely begs the ques tion before us. His formulation fails to indicate whether the “other governmental bodies” may be state or local bodies. It also turns on a term, “Government” with a capital “G,” that does not appear in the codified version of the public disclosure bar, which Congress subsequently revised in numerous respects prior to passage. There is, in fact, only one item in the legislative record that squarely corroborates respondent’s reading of the statute: a letter sent by the primary sponsors of the 1986 amendments to the Attorney General in 1999. See 145 Cong. Rec. 16032 (1999) (reproducing text of letter in which Rep. Berman and Sen. Grassley state: “We did intend, and any fair reading of the statute will confirm, that the disclosure must be in a federal criminal, civil or administrative hearing. Disclosure in a state proceeding —————— on the matter. In our view, neither the general trajectory of 20th century FCA reform nor the specific statements made during the 1986 legislative process clearly point one way or the other on the question before us. Cite as: 559 U. S. ____ (2010) 17 Opinion of the Court of any kind should not be a bar to a subsequent qui tam suit”). Needless to say, this letter does not qualify as legislative “history,” given that it was written 13 years after the amendments were enacted. It is consequently of scant or no value for our purposes.17 We do not doubt that Congress passed the 1986 amendments to the FCA “to strengthen the Government’s hand in fighting false claims,” Cook County, 538 U.S., at 133–134, and “to encourage more private enforcement suits,” S. Rep., at 23–24. It is equally beyond cavil, how ever, that Congress passed the public disclosure bar to bar a subset of those suits that it deemed unmeritorious or downright harmful. The question before us concerns the precise scope of that subset; and on this matter, the record is all but opaque. While “the absence of specific legislative history in no way modifies the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question,” United States v. Bornstein, 423 U. S. —————— 17 See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980); Hamdan v. Rumsfeld, 548 U.S. 557, 580, n. 10 (2006); see also Hafter, 190 F.3d, at 1161, n. 6 (refusing to credit the Berman-Grassley letter in interpreting the public disclosure bar). Respondent and her amici additionally contend that the enactment of the Program Fraud Civil Remedies Act of 1986 (PFCRA), 100 Stat. 1934 (codified at 31 U.S. C. §3801 et seq.), shortly before the enactment of the FCA amendments supports their reading of the latter. See Brief for Respondent 30–33; Brief for United States 14–15; Brief for Taxpay ers Against Fraud Education Fund as Amicus Curiae 28–29. Yet while “there is no question that the PFCRA was designed to operate in tandem with the FCA,” Stevens, 529 U.S., at 786, n. 17, or that the PFCRA is addressed to federal administrative agencies, there is also no explicit evidence to suggest that Congress intended to limit Category 2’s reference to “administrative” sources to the same set of agencies. The FCA’s public disclosure bar serves a distinct function not replicated in the PFCRA; the text of the public disclosure bar contains no refer ence to the PFCRA; and no Member of Congress, so far as we are aware, articulated any such intent. 18 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court 303, 310 (1976), there is no “evident legislative purpose” to guide our resolution of the discrete issue that confronts us. V Respondent and her amici likewise fail to prove their case that petitioners’ reading of the statute will lead to results that Congress could not have intended. Their argument rests on an empirical proposition: “While federal inquiries and their outcomes are readily available to De partment of Justice [(DOJ)] attorneys, many state and local reports and investigations never come to the atten tion of federal authorities.” Brief for United States 22; see also 528 F.3d, at 306 (“Because the federal government is unlikely to learn about state and local investigations, a large number of fraudulent claims against the government would go unremedied without the financial incentives offered by the qui tam provisions of the FCA”). This proposition is not implausible, but it is sheer conjecture. Numerous federal investigations may be occurring at any given time, and DOJ attorneys may not reliably learn about their findings. DOJ attorneys may learn about quite a few state and local inquiries, especially when the inquiries are conducted pursuant to a joint federal-state program financed in part by federal dollars, such as the program at issue in this case.18 Just how accessible to the Attorney General a typical state or local source will be, as compared to a federal source, is an open question. And it —————— 18 In some instances, federal law dictates that state and local govern ments receiving federal funds perform an audit of their programs. See 31 U.S. C. §7502(a)(1)(B) (requiring nonfederal entities that expend federal awards above a certain amount to “undergo a single audit” in accordance with specified conditions); Brief for State of Pennsylvania et al. as Amici Curiae 7–10 (discussing the Single Audit Act of 1984). It bears mention that, to the extent one is worried about Federal Gov ernment ignorance of state and local antifraud efforts, see post, at 10– 11, today’s ruling may induce federal authorities to pay closer attention to such efforts going forward. Cite as: 559 U. S. ____ (2010) 19 Opinion of the Court is not even the right question. The statutory touchstone, once again, is whether the allegations of fraud have been “public[ly] disclos[ed],” §3730(e)(4)(A), not whether they have landed on the desk of a DOJ lawyer. Respondent’s argument also gives insufficient weight to Congress’ decision to bar qui tam actions based on disclo sures “from the news media.” Ibid. Because there was no such bar prior to 1986, the addition of the news media as a jurisdiction-stripping category forecloses the suggestion that the 1986 amendments implemented a single-minded intent to increase the availability of qui tam litigation. And since the “news media” include a large number of local newspapers and radio stations, this category likely describes a multitude of sources that would seldom come to the attention of the Attorney General. As for respondent and her amici’s concern that local governments will insulate themselves from qui tam liabil ity “through careful, low key ‘disclosures’ ” of potential fraud, Brief for American Center for Law and Justice as Amicus Curiae 17, this argument rests not just on specu lation but indeed on rather strained speculation. Any such disclosure would not immunize the local government from FCA liability in an action brought by the United States, see Rockwell Int’l Corp. v. United States, 549 U.S. 457, 478 (2007)—and to the contrary it could tip off the Attorney General that such an action might be fruitful. It seems to us that petitioners have the more clear-eyed view when they assert that, “[g]iven the fact that the submis sion of a false claim to the United States subjects a defen dant to criminal liability, fines, debarment, treble dam ages and attorneys’ fees, no rational entity would prepare a report that self-discloses fraud with the sole purpose of cutting off qui tam actions.” Reply Brief for Petitioners 19; see also United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 919 (CA9 2006) (“The fear [of self-insulating disclosures] is unfounded in general because it is unlikely 20 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court that an agency trying to cover up its fraud would reveal the requisite ‘allegations or transactions’ underlying the fraud in a public document”).19 Our conclusion is buttressed by the fact that Congress carefully preserved the rights of the most deserving qui tam plaintiffs: those whistle-blowers who qualify as origi nal sources. Notwithstanding public disclosure of the allegations made by a qui tam plaintiff, her case may go forward if she is “an original source of the information.” §3730(e)(4)(A). It is therefore flat wrong to suggest that a finding for petitioners will “ ‘in effect return us to the unduly restrictive “government knowledge” standard’ ” that prevailed prior to 1986. Brief for United States 31 (quoting Dunleavy, 123 F.3d, at 746); see Brief for Re spondent 34 (asserting that “petitioners’ construction would reimpose a form of the ‘government knowledge’ bar” (capitalization omitted)). Today’s ruling merely confirms that disclosures made in one type of context—a state or local report, audit, or investigation—may trigger the public disclosure bar. It has no bearing on disclosures made in other contexts, and it leaves intact the ability of original sources to prosecute qui tam actions irrespective of the state of Government knowledge. Whether respon dent can qualify as an “original source,” as that term is defined in §3730(e)(4), is one of many issues that remain open on remand. —————— 19 Petitioners and their amici also counter with public policy argu ments of their own. Under the Court of Appeals’ reading of the statute, they allege, there is an increased likelihood that parasitic relators will beat more deserving relators to the courthouse, Brief for Petitioners 31, and that state and local governments will find their antifraud investi gations impeded, or will decline to conduct such investigations in the first place, on account of “opportunistic potential relators trolling state records and reports, available to the public,” in search of a qui tam claim, Brief for State of Pennsylvania et al. as Amici Curiae 11. Cite as: 559 U. S. ____ (2010) 21 Opinion of the Court VI Respondent and the Solicitor General have given nu merous reasons why they believe their reading of the FCA moves it closer to the golden mean between an inadequate and an excessive scope for private enforcement. Congress may well have endorsed those views in its recent amend ment to the public disclosure bar. See n. 1, supra. With respect to the version of §3730(e)(4)(A) that is before us, however, we conclude that the term “administrative” in Category 2 is not limited to federal sources. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 559 U. S. ____ (2010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–304 _________________ GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T. WILSON ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 30, 2010] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join Parts I–III and V–VI of the Court’s opinion. As for Part IV, I agree that the stray snippets of legislative his tory respondent, the Solicitor General, and the dissent have collected prove nothing at all about Congress’s pur pose in enacting 31 U.S. C. §3730(e)(4)(A). Ante, at 14– 18. But I do not share the Court’s premise that if a “ ‘legis lative purpose’ ” were “ ‘evident’ ” from such history it would make any difference. Ante, at 17 (quoting United States v. Bornstein, 423 U.S. 303, 310 (1976)). The Con stitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79–80 (1998). If §3730(e)(4)(A)’s text includes state and local administra tive reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impos sible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorse ment of the majority in each House: the text of the en rolled bill that became law. Cite as: 559 U. S. ____ (2010) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 08–304 _________________ GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T.

Since its enactment during the Civil War, the False Claims Act, 3 U.S. C. has authorized both the Attorney General and private qui tam relators to recover from persons who make false or fraudulent claims for payment to the United States. The Act now contains a provision barring qui tam actions based upon the public disclosure of allegations or transactions in certain speci fied sources. The question before us is whether the reference to “administrative” reports, audits, and investigations in that provision encompasses disclo sures made in state and local sources as well as federal sources. We hold that it does. —————— On March 23, 200, the President signed into law the Patient Pro tection and Affordable Care Act, Pub. L. –48, Section 004(j)(2) of this legislation replaces the prior version of 3 U.S. C. with new language. The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Throughout this opinion, we use the present 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court I In 995 the United States Department of Agriculture (USDA) entered into contracts with two counties in North Carolina authorizing them to perform, or to hire others to perform, cleanup and repair work in areas that had suf fered extensive flooding. The Federal Government agreed to shoulder 75 percent of the contract costs. Respondent Karen T. Wilson was at that time an employee of the Graham County and Conservation District, a special purpose government body that had been delegated partial responsibility for coordinating and performing the reme diation effort. Suspecting possible fraud in connection with this effort, Wilson voiced her concerns to local offi cials in the summer of 995. She sent a letter to, and had a meeting with, agents of the USDA. Graham County officials began an investigation. An accounting firm hired by the county performed an audit and, in 996, d a report (Audit Report) that identified several potential irregularities in the county’s administra tion of the contracts. Shortly thereafter, the North Caro lina Department of Environment, Health, and Natural Resources d a report (DEHNR Report) identifying similar problems. The USDA’s Office of Inspector General eventually d a third report that contained additional findings. In 200 Wilson filed this action, alleging that petition ers, the Graham County and Cherokee County and Water Conservation Districts and a number of local and federal officials, violated the False Claims Act (FCA) by knowingly submitting false claims for payment pursuant to the 995 contracts. She further alleged that petitioners retaliated against her for aiding the federal investigation of those false claims. Following this Court’s review of the —————— tense in discussing the statute as it existed at the time this case was argued. Cite as: 559 U. S. (200) 3 Opinion of the Court statute of limitations applicable to Wilson’s retaliation claim, Graham County & Water Conservation Dist. v. United States ex rel. Wilson, the Court of Appeals ordered that that claim be dismissed as time barred. On remand, the District Court subsequently dismissed Wilson’s qui tam action for lack of jurisdiction. App. to Pet. for Cert. 95a– a. The court found that Wilson had failed to refute that her action was based upon allegations publicly dis closed in the Audit Report and the DEHNR Report. at 95a–98a. Those reports, the District Court determined, constituted “administrative report[s], audit[s], or investigation[s]” within the meaning of the FCA’s public disclosure bar, 3 U.S. C. The Court of Appeals reversed the judgment of the District Court because the reports had been generated by state and local entities. “[O]nly federal administrative reports, audits or investigations,” the Fourth Circuit concluded, “qualify as public disclosures under the FCA.” The Circuits having divided over this2 we granted certiorari to resolve the conflict. 557 U. S. (2009). —————— 2 528 F.3d, at –307 (limiting this portion of the public disclosure bar to federal sources), and United States ex rel. v. County of Delaware, with United States ex rel. 98–99 (concluding that state and local sources may qualify), cert. denied, and (assuming without analysis that state audits may qualify). The Eighth Circuit appears to have taken a “middle road” on this 528 F.3d, at holding that disclosures made in nonfederal forums may count as “ ‘administrative report[s]’ ” or “ ‘audit[s]’ ” under (A) in some instances, as when they relate to “a cooperative federal-state program through which the federal government provides financial assistance.” 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court II We have examined the FCA’s qui tam provisions in several recent opinions.3 At in this case is the FCA’s public disclosure bar, which deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain chan nels. The statute contains three categories of jurisdiction stripping disclosures. Following the example of the Court of Appeals, see –, we have inserted Arabic numerals to identify these categories: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions [] in a criminal, civil, or admin istrative hearing, [2] in a congressional, administra tive, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation, or [3] from the news media, unless the action is brought by the Attorney General or the person bringing the action is an origi nal source[4] of the information.” (A) (foot note omitted). This dispute turns on the meaning of the adjective “ad ministrative” in the second category (Category 2): whether it embraces only forums that are federal in nature, as respondent alleges, or whether it extends to disclosures made in state and local sources such as the DEHNR Re —————— 3 See, e.g., Rockwell Int’l (construing (A)’s original source exception); Cook County v. United States ex rel. Chandler, (holding that local governments are subject to qui tam liability); Vermont Agency of Natural (holding that States are not subject to private FCA actions). 4 A separate statutory provision defines an “original source” as “an individual who has direct and independent knowledge of the informa tion on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” 3 U.S. C. (B). Cite as: 559 U. S. (200) 5 Opinion of the Court port and the Audit Report, as petitioners allege. In debating this question, petitioners have relied pri marily on the statute’s text whereas respondent and the Solicitor General, as her amicus, have relied heavily on considerations of history and policy. Although there is some overlap among the three types of argument, it is useful to discuss them separately. We begin with the text. III The term “administrative” “may, in various contexts, bear a range of related meanings,” (Harlan, J., concurring in denial of writ), pertaining to private bodies as well as to governmental bodies. When used to modify the nouns “report, hearing, audit, or inves tigation,” in the context of a statutory provision about “the public disclosure” of fraud on the United States, the term is most naturally read to describe the activities of govern mental agencies. See Black’s Law Dictionary 49 (9th ed. 2009) (hereinafter Black’s) (defining “administration,” “[i]n public law, [as] the practical management and direction of the executive department and its agencies”). Given that “administrative” is not itself modified by “federal,” there is no immediately apparent textual basis for excluding the activities of state and local agencies (or their contractors) from its ambit. As the Court of Appeals recognized, “the statute by its express terms does not limit its reach to federal administrative reports or investigations.” 528 F.3d, at “[T]here is nothing inherently federal about the word ‘administrative,’ and Congress did not define the term in the FCA.” The Court of Appeals’ conclusion that “administrative” nevertheless reaches only federal sources rested on its application of the interpretive maxim noscitur a sociis. See –305. This maxim, literally translated as “ ‘it is known by its associates,’ ” Black’s 60, counsels 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court lawyers reading statutes that “a word may be known by the company it keeps,” Motor Car All participants in this litigation acknowledge that the terms “congressional” and “[GAO]” are federal in nature; Congress is the Legislative Branch of the Federal Government,5 and the GAO is a federal agency.6 Relying on our opinions in S. D. Warren v. Maine Bd. of Environmental Protection, 547 U.S. 370 and (994), the Court of Appeals reasoned that “the placement of ‘administrative’ squarely in the middle of a list of obvi ously federal sources strongly suggests that ‘administra tive’ should likewise be restricted to federal administrative reports, hearings, audits, or investigations.” 528 F.3d, at 302. In so holding, the Court of Appeals embraced what we might call the Sandwich Theory of the Third Circuit. Both courts “ ‘f[ou]nd it hard to believe that the drafters of this provision intended the word “administrative” to refer to both state and federal reports when it lies sandwiched between modifiers which are unquestionably federal in character.’ ” ). We find this use of noscitur a sociis unpersuasive. A list —————— 5 SeeU. S. Const., Art. I, cl. (distinguishing “State Legislature[s]” from “the Congress”). 6 The statute refers to the GAO, mistakenly, as the “Government Accounting Office.” It is undisputed that the intended referent was the General Accounting Office, now renamed the Government Accountabil ity Office. See 3 U.S. C. p. 254, n. 2 (compiler’s note); 528 F.3d 292, 300, n. 4 ; United States ex rel. cert. denied, ; see (Becker, C. J., dissenting) (noting that courts have “frequently” made the same scrivener’s error). We have described the GAO as “an inde pendent agency within the Legislative Branch that exists in large part to serve the needs of Congress.” 844 (983). Cite as: 559 U. S. (200) 7 Opinion of the Court of three items, each quite distinct from the other no mat ter how construed, is too short to be particularly illuminat ing. Although this list may not be “completely disjunc tive,” 528 F.3d, —it refers to “congressional, administrative, or [GAO]” sources, (A), rather than “congressional, or administrative, or [GAO]” sources—neither is it completely harmonious. The sub stantive connection, or fit, between the terms “congres sional,” “administrative,” and “GAO” is not so tight or so self-evident as to demand that we “rob” any one of them “of its independent and ordinary significance.” Reiter v. Sonotone Corp., ; see 26 U.S., at (“That a word may be known by the company it keeps is not an invariable rule, for the word may have a character of its own not to be submerged by its association”). The adjectives in Category 2 are too few and too disparate to qualify as “a string of statutory terms,” S. D. Warren or “items in a list,” in the sense that we used those phrases in the cited cases.7 —————— 7 In Jarecki v. G. D. Searle & the Court applied the noscitur a sociis maxim in construing a statutory provision that referred to “ ‘[i]ncome resulting from exploration, discovery, or prospecting,’ ” (quoting of the Internal Revenue Code of 939). JUSTICE SOTOMAYOR contends that “the three terms in Category 2 are no more ‘distinct’ or ‘disparate’ than the phrase at in Jarecki.” Post, at 4 (dissenting opinion) (citation omitted). We disagree. Whether taken in isolation or in context, the phrase “con gressional, administrative, or GAO” is not as cohesive as the phrase “exploration, discovery, or prospecting.” That is one reason why nosci tur a sociis proved illuminating in Jarecki, and why it is less helpful in this case. On their “face,” the terms “exploration,” “discovery,” and “prospecting” all describe processes of searching, seeking, speculating; the centrality of such activities to “the oil and gas and mining indus tries” gave a clue that it was those industries Congress had in mind when it drafted the (internal quotation marks omitted). The terms “congressional,” “administrative,” and “GAO” do not share any comparable core of meaning—or indeed any 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court More important, we need to evaluate “administrative” within the larger scheme of the public disclosure bar. Both parties acknowledge, as they must, that “[s]tatutory language has meaning only in context,” Graham County ; where they differ is in determining the relevant context. The Sandwich Theory presupposes that Category 2 is the only piece of (A) that matters. We agree with petitioners, however, that all of the sources listed in (A) provide interpretive guidance. All of these sources drive at the same end: specifying the types of disclosures that can foreclose qui tam actions. In light of the public disclosure bar’s gram matical structure, it may be convenient and even clarify ing to parse the list of sources into three categories. But it does not follow that we should treat these categories as islands unto themselves. Courts have a “duty to construe statutes, not isolated provisions.” Gustafson v. Alloyd When we consider the entire text of the public disclosure bar, the case for limiting “administrative” to federal sources becomes significantly weaker. The “news media” referenced in Category 3 plainly have a broader sweep. The Federal Government funds certain media outlets, and certain private outlets have a national focus; but no one contends that Category 3 is limited to these sources. There is likewise no textual basis for assuming that the “criminal, civil, or administrative hearing[s]” listed in Category must be federal hearings.8 Of the numerous —————— “common feature” at all, post, at 4—apart from a governmental conno tation. It takes the Sandwich Theory to graft a federal limitation onto “administrative.” 8 A number of lower courts have concluded that, as used in Category “ ‘hearing’ is roughly synonymous with ‘proceeding.’ ” United States ex rel. Springfield Terminal R. v. Quinn, (CADC 994); see J. Boese, Civil False Claims and Qui Tam Actions p. 4–59, and n. 23 (hereinafter Boese); C. Cite as: 559 U. S. (200) 9 Opinion of the Court types of sources that serve a common function in (A), then, only two are distinctly federal in nature, while one (the news media) is distinctly nonfederal in nature. If the Court of Appeals was correct that the term “ad ministrative” encompasses state and local sources in Category see it becomes even harder to see why the term would not do the same in Category 2. See (“[A] legislative body generally uses a particular word with a consistent meaning in a given context”). Respondent and the Solicitor General assert that (A)’s two references to “administrative” can be distinguished be cause Category is best understood to refer to adjudica tive proceedings, whereas Category 2 is best understood to refer to legislative or quasi-legislative activities such as rulemaking, oversight, and investigations. See Brief for Respondent 6–8; Brief for United States as Amicus Curiae 25–26 (hereinafter Brief for United States). Yet even if this reading were correct, state and local adminis trative reports, hearings, audits, and investigations of a legislative-type character are presumably just as public, and just as likely to put the Federal Government on notice of a potential fraud, as state and local administrative hearings of an adjudicatory character.9 —————— Sylvia, The False Claims Act: Fraud Against the Government p. 642 (2004) (hereinafter Sylvia). 9 See (“Indeed, the statute would seem to be inconsistent if it included state and local administrative hearings as sources of public disclosures [in Category ] and then, in the next breath, excluded state administrative reports as sources”); In re Natu ral Gas Royalties Qui Tam Litigation, 43–44 (“There is no reason to conclude that Congress intended to limit administrative reports, audits, and investigations to federal actions, while simultaneously allowing all state and local civil litiga tion, state and local administrative hearings, and state and local news media to be treated as public disclosures. To interpret the statute so 0 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and the Solicitor General try to avoid this inference, and to turn a weakness into a strength, by further averring that the sources listed in Category are themselves only federal. See Brief for Respondent 23–24; Brief for United States 25–26. No court has ever taken such a view of these sources. See (citing cases from the Third, Fourth, Fifth, Ninth, and Eleventh Circuits and stating that “[t]he courts have easily con cluded that [Category ] applies to state-level hearings”); Sylvia at 643, n. (citing additional cases).0 The arguments in favor of reading a federal limitation into Category are supported, if at all, by legislative history and policy; they find no support in the statute’s text. Moving from the narrow lens of the Sandwich Theory to a bird’s eye view, respondent and the Solicitor General maintain that the “exclusively federal focus” of the FCA counsels against reading the public disclosure bar to encompass nonfederal sources. Brief for Respondent 0, 8; Brief for United States 3. The FCA undoubtedly has a federal focus. But so does every other federal statute. —————— narrowly would have the anomalous result of allowing public disclosure status to the most obscure local news report and the most obscure state and local civil lawsuit or administrative hearing, but denying public disclosure status to a formal public report of a state government agency”). 0 Following the Court of Appeals, see respondent asserts that only the Ninth Circuit, in A- Ambulance Serv., Inc. v. California, has explicitly considered and rejected the argument that Category is limited to federal sources. Brief for Respondent 23–24. At least one other Circuit, however, has done the same, see United States ex rel. and no lower court, as far as we are aware, has so much as suggested that an alternative construction might be viable. Moreover, the Third, Fifth, and Eleventh Circuit cases cited by the Court of Appeals postdate A- Ambulance and both of which put litigants and courts on notice of the possibility that (A) might be limited to federal sources. Cite as: 559 U. S. (200) Opinion of the Court And as respondent and the Solicitor General elsewhere acknowledge, quite a few aspects of the FCA, including a reference to “administrative” proceedings in (7)(A) and the reference to “news media” in (A) itself, are not just federal. In any event, the “federal focus” of the statute, as a whole, does not shine light on the specific question whether the public disclosure bar extends to certain nonfederal contexts. It is the fact of “public disclosure”—not Federal Government creation or receipt—that is the touchstone of Respondent and the Solicitor General make one last argument grounded in the statutory text: It would be anomalous, they say, for state and local administrative reports to count as public disclosures, when state legisla tive reports do not. See Brief for Respondent 5; Brief for United States 5–6. Yet neither respondent nor the Solicitor General disputes the contention of petitioners and their amici that, at the time the public disclosure bar was enacted in 986, Congress rarely gave state legisla tures a meaningful role in administering or overseeing federally funded programs. See Brief for Petitioners 36– 39; Brief for National League of Cities et al. as Amici Curiae 8–3. As in the instant case, the Federal Govern ment was far more likely to enter into contracts with, and to provide moneys to, state and local executive agencies. Whether or not state legislative sources should have been included in (A), their exclusion therefore car ries no clear implications for the status of state adminis trative sources. In sum, although the term “administrative” may be sandwiched in Category 2 between terms that are federal —————— On its face, (7)(A) is silent as to whether it includes nonfed eral proceedings. Respondent and the Solicitor General suggest that it does, though they fairly argue that this provision, relating to civil investigative demands, has little if any relevance to the case at hand. See Brief for Respondent 2, n. 8; Brief for United States 3–32. 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court in nature, those terms are themselves sandwiched be tween phrases that have been generally understood to include nonfederal sources; and one of those phrases, in Category contains the exact term that is the subject of our inquiry. These textual clues negate the force of the noscitur a sociis canon, as it was applied by the Court of Appeals.2 We are not persuaded that the associates with which “administrative” keeps company in (A) endow it with an exclusively federal character. IV As originally enacted, the FCA did not limit the sources from which a relator could acquire the information to bring a qui tam action. In United States ex rel. Marcus v. Hess, we upheld the relator’s recov ery even though he had discovered the fraud by reading a federal criminal indictment—a quintessential “parasitic” suit. –548; see (“Even if, as the gov ernment suggests, the petitioner has contributed nothing to the discovery of this crime, he has contributed much to accomplishing one of the purposes for which the Act was passed”). Congress promptly reacted to that decision by amending the statute to preclude qui tam actions “based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, —————— 2 The Court of Appeals repeatedly referred to the three categories in (A) as “clauses.” See –305. Were they in fact clauses rather than prepositional phrases, reliance on noscitur a sociis might have been supported by one of our earliest cases using that term, (Reporter’s statement of the case), which suggested that “different clauses of the same sen tence” should be presumed “to embrace the subject matter of the sentence.” The Court of Appeals’ mistaken reference to “clauses” is of course less significant than its failure to treat the public disclosure bar as an integrated whole. Cf. The Shakespeare Canon of Statu tory Construction, (emphasizing importance of reading provisions in their broader statutory context). Cite as: 559 U. S. (200) 3 Opinion of the Court at the time such suit was brought.” Act of Dec. 23, 943, (codified at 3 U.S. C. (946 ed.)). This amendment erected what came to be known as a Government knowledge bar: “[O]nce the United States learned of a false claim, only the Government could assert its rights under the FCA against the false claimant.” Hughes Aircraft v. United States ex rel. Schumer, 520 U.S. 939, 949 (internal quotation marks omitted). In the years that followed the 943 amendment, the vol ume and efficacy of qui tam litigation dwindled. “Seeking the golden mean between adequate incentives for whistle blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own,” United States ex rel. Springfield Terminal R. v. Quinn, 4 F.3d 645, 649 (CADC 994), Congress overhauled the statute once again in 986 “to make the FCA a ‘more useful tool against fraud in modern times,’ ” Cook County v. United States ex rel. Chandler, (quoting S. Rep. No. 99–345, p. 2 (986) (hereinafter S. Rep.)). The present text of was enacted in 986 as part of this larger reform. Congress apparently concluded that a total bar on qui tam actions based on information already in the Government’s possession thwarted a sig nificant number of potentially valuable claims. Rather than simply repeal the Government knowledge bar, how ever, Congress replaced it with the public disclosure bar in an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits such as the one in Hess. How exactly came to strike this balance in the way it did is a matter of consid erable uncertainty. The House and Senate Judiciary Committees each reported bills that contained very differ ent public disclosure bars from the one that emerged in the Statutes at Large; the Senate bill, for example, did not 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court include the words “administrative,” “audit,” or “investiga tion” in its version of Category 2, nor did it contain an original source exception. See S. Rep., at 42–43 (text of proposed ).3 In respondent and her amici’s view, this background counsels in favor of an exclusively federal interpretation of “administrative” for three separate reasons. First, the drafting history of the public disclosure bar suggests that Congress intended such a result. Second, a major aim of the 986 amendments was to limit the scope of the Gov ernment knowledge bar, and “[c]onstruing [(A)] as limited to disclosures in federal proceedings furthers Congress’s purpose ‘to encourage more private enforce ment suits.’ ” Brief for United States 2 (quoting S. Rep., at 23–24). Third, whereas federal administrative proceed ings can be presumed to provide the Attorney General with a fair opportunity to decide whether to bring an FCA action based on revelations made therein, the Attorney General is much less likely to learn of fraud disclosed in state proceedings. Respondent and her amici further maintain that it would be perverse to include nonfederal sources in Category 2, as local governments would then be able to shield themselves from qui tam liability by dis cretely disclosing evidence of fraud in “public” reports.4 These arguments are reasonable so far as they go, but they do not go very far. As many have observed, the draft ing history of the public disclosure bar raises more ques tions than it answers.5 Significant substantive changes— —————— 3 See H. R. Rep. No. 99–660, pp. 2–3 (986) (text of proposed The public disclosure bar that was enacted more closely resembles the version in the Senate bill. 4 State governments are already shielded from qui tam liability un der our precedent. 5 See, e.g., 23 F.3d, at (“Congress gave us little spe cific guidance to determine the scope of public disclosure sources”); United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P. A. v. Cite as: 559 U. S. (200) 5 Opinion of the Court including the introduction of the term we are construing in this case—were inserted without floor debate, as “techni cal” amendments. That the original Senate bill mentioned only congressional and GAO sources in Category 2 is therefore of little moment. Neither the House nor the Senate Committee Report explained why a federal limita tion would be appropriate, and the subsequent addition of “administrative” sources to this Category might be taken as a sign that such a limitation was rejected by the full Chambers.6 —————— Prudential Ins. (“The bill that eventuated in the 986 amendments underwent substantial revisions during its legislative path. This provides ample opportunity to search the legislative history and find some support somewhere for almost any construction of the many ambiguous terms in the final version”); at 63 (Scirica, J., dissenting) (“One difficulty in interpreting the 986 amendments is that Congress was never completely clear about what kind of ‘parasitic’ suits it was attempting to avoid”); Boese at 4–46 (“The present Section 3730(e)(4) was enacted without explana tion by Congress”); at 4–47 to 4–48 (“[A]pplicable legisla tive history explaining versions [of ] not adopted is of little help in deciphering this Because Section 3730(e)(4) was drafted subsequent to the completion of the House and Senate Commit tee reports on the proposed False Claims Act Amendments, those reports, which contained discussion of altogether different bars, cannot be used in interpreting it. And the sponsors’ interpretations of the provision ultimately enacted are spare, often incorrect, and wide ranging enough to provide some support for almost any construction of its many ambiguities”). 6 JUSTICE SOTOMAYOR makes a valiant effort to unearth from the legislative history “the balance Congress evidently sought to achieve through the 986 amendments.” Post, at 0. But her reconstruction of the history assigns little weight to the side of this balance preserved by the public disclosure bar: the desire to minimize “the potential for parasitic lawsuits by those who learn of the fraud through public channels and seek remuneration although they contributed nothing to the exposure of the fraud,” United States ex rel. And her narrative contains no account of why Category 2 emerged in the form that it did. Any such account would necessarily be an exercise in speculation, as the record is silent 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and her amici place particular emphasis on a remark made by the lead sponsor of the Senate bill, Senator Grassley. See Brief for Respondent 29; Brief for United States 20; Brief for American Center for Law and Justice as Amicus Curiae 3–4; Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 30–3. In a floor statement, Grassley said that “the term ‘Gov ernment’ in the definition of original source is meant to include any Government source of disclosures cited in [the public disclosure bar]; that is[,] Government includes Congress, the General Accounting Office, any executive or independent agency as well as all other governmental bodies that may have publicly disclosed the allegations.” 32 Cong. Rec. 20536 (986). Yet even if a single sentence by a single legislator were entitled to any meaningful weight, Senator Grassley’s remark merely begs the ques tion before us. His formulation fails to indicate whether the “other governmental bodies” may be state or local bodies. It turns on a term, “Government” with a capital “G,” that does not appear in the codified version of the public disclosure bar, which Congress subsequently revised in numerous respects prior to passage. There is, in fact, only one item in the legislative record that squarely corroborates respondent’s reading of the statute: a letter sent by the primary sponsors of the 986 amendments to the Attorney General in See 45 Cong. Rec. 6032 (reproducing text of letter in which Rep. Berman and Sen. Grassley state: “We did intend, and any fair reading of the statute will confirm, that the disclosure must be in a federal criminal, civil or administrative hearing. Disclosure in a state proceeding —————— on the matter. In our view, neither the general trajectory of 20th century FCA reform nor the specific statements made during the 986 legislative process clearly point one way or the other on the question before us. Cite as: 559 U. S. (200) 7 Opinion of the Court of any kind should not be a bar to a subsequent qui tam suit”). Needless to say, this letter does not qualify as legislative “history,” given that it was written 3 years after the amendments were enacted. It is consequently of scant or no value for our purposes.7 We do not doubt that Congress passed the 986 amendments to the FCA “to strengthen the Government’s hand in fighting false claims,” Cook County, 538 U.S., at –34, and “to encourage more private enforcement suits,” S. Rep., at 23–24. It is equally beyond cavil, how ever, that Congress passed the public disclosure bar to bar a subset of those suits that it deemed unmeritorious or downright harmful. The question before us concerns the precise scope of that subset; and on this matter, the record is all but opaque. While “the absence of specific legislative history in no way modifies the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question,” United 423 U. S. —————— 7 See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 02, 8 (980); ; see 90 F.3d, at (refusing to credit the Berman-Grassley letter in interpreting the public disclosure bar). Respondent and her amici additionally contend that the enactment of the Program Fraud Civil Remedies Act of 986 (PFCRA), 00 Stat. 934 (codified at 3 U.S. C. et seq.), shortly before the enactment of the FCA amendments supports their reading of the latter. See Brief for Respondent 30–33; Brief for United States 4–5; Brief for Taxpay ers Against Fraud Education Fund as Amicus Curiae 28–29. Yet while “there is no question that the PFCRA was designed to operate in tandem with the FCA,” n. 7, or that the PFCRA is addressed to federal administrative agencies, there is no explicit evidence to suggest that Congress intended to limit Category 2’s reference to “administrative” sources to the same set of agencies. The FCA’s public disclosure bar serves a distinct function not replicated in the PFCRA; the text of the public disclosure bar contains no refer ence to the PFCRA; and no Member of Congress, so far as we are aware, articulated any such intent. 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court 303, 30 (976), there is no “evident legislative purpose” to guide our resolution of the discrete that confronts us. V Respondent and her amici likewise fail to prove their case that petitioners’ reading of the statute will lead to results that Congress could not have intended. Their argument rests on an empirical proposition: “While federal inquiries and their outcomes are readily available to De partment of Justice [(DOJ)] attorneys, many state and local reports and investigations never come to the atten tion of federal authorities.” Brief for United States 22; see (“Because the federal government is unlikely to learn about state and local investigations, a large number of fraudulent claims against the government would go unremedied without the financial incentives offered by the qui tam provisions of the FCA”). This proposition is not implausible, but it is sheer conjecture. Numerous federal investigations may be occurring at any given time, and DOJ attorneys may not reliably learn about their findings. DOJ attorneys may learn about quite a few state and local inquiries, especially when the inquiries are conducted pursuant to a joint federal-state program financed in part by federal dollars, such as the program at in this case.8 Just how accessible to the Attorney General a typical state or local source will be, as compared to a federal source, is an open question. And it —————— 8 In some instances, federal law dictates that state and local govern ments receiving federal funds perform an audit of their programs. See 3 U.S. C. (requiring nonfederal entities that expend federal awards above a certain amount to “undergo a single audit” in accordance with specified conditions); Brief for State of Pennsylvania et al. as Amici Curiae 7–0 (discussing the Single Audit Act of 984). It bears mention that, to the extent one is worried about Federal Gov ernment ignorance of state and local antifraud efforts, see post, at 0– today’s ruling may induce federal authorities to pay closer attention to such efforts going forward. Cite as: 559 U. S. (200) 9 Opinion of the Court is not even the right question. The statutory touchstone, once again, is whether the allegations of fraud have been “public[ly] disclos[ed],” (A), not whether they have landed on the desk of a DOJ lawyer. Respondent’s argument gives insufficient weight to Congress’ decision to bar qui tam actions based on disclo sures “from the news media.” Because there was no such bar prior to 986, the addition of the news media as a jurisdiction-stripping category forecloses the suggestion that the 986 amendments implemented a single-minded intent to increase the availability of qui tam litigation. And since the “news media” include a large number of local newspapers and radio stations, this category likely describes a multitude of sources that would seldom come to the attention of the Attorney General. As for respondent and her amici’s concern that local governments will insulate themselves from qui tam liabil ity “through careful, low key ‘disclosures’ ” of potential fraud, Brief for American Center for Law and Justice as Amicus Curiae 7, this argument rests not just on specu lation but indeed on rather strained speculation. Any such disclosure would not immunize the local government from FCA liability in an action brought by the United States, see Rockwell Int’l 549 U.S. 457, 478 —and to the contrary it could tip off the Attorney General that such an action might be fruitful. It seems to us that petitioners have the more clear-eyed view when they assert that, “[g]iven the fact that the submis sion of a false claim to the United States subjects a defen dant to criminal liability, fines, debarment, treble dam ages and attorneys’ fees, no rational entity would prepare a report that self-discloses fraud with the sole purpose of cutting off qui tam actions.” Reply Brief for Petitioners 9; see United States ex rel. 470 F.3d 94, 99 (“The fear [of self-insulating disclosures] is unfounded in general because it is unlikely 20 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court that an agency trying to cover up its fraud would reveal the requisite ‘allegations or transactions’ underlying the fraud in a public document”).9 Our conclusion is buttressed by the fact that Congress carefully preserved the rights of the most deserving qui tam plaintiffs: those whistle-blowers who qualify as origi nal sources. Notwithstanding public disclosure of the allegations made by a qui tam plaintiff, her case may go forward if she is “an original source of the information.” It is therefore flat wrong to suggest that a finding for petitioners will “ ‘in effect return us to the unduly restrictive “government knowledge” standard’ ” that prevailed prior to 986. Brief for United States 3 (quoting ); see Brief for Re spondent 34 (asserting that “petitioners’ construction would reimpose a form of the ‘government knowledge’ bar” (capitalization omitted)). Today’s ruling merely confirms that disclosures made in one type of context—a state or local report, audit, or investigation—may trigger the public disclosure bar. It has no bearing on disclosures made in other contexts, and it leaves intact the ability of original sources to prosecute qui tam actions irrespective of the state of Government knowledge. Whether respon dent can qualify as an “original source,” as that term is defined in is one of many s that remain open on remand. —————— 9 Petitioners and their amici counter with public policy argu ments of their own. Under the Court of Appeals’ reading of the statute, they allege, there is an increased likelihood that parasitic relators will beat more deserving relators to the courthouse, Brief for Petitioners 3, and that state and local governments will find their antifraud investi gations impeded, or will decline to conduct such investigations in the first place, on account of “opportunistic potential relators trolling state records and reports, available to the public,” in search of a qui tam claim, Brief for State of Pennsylvania et al. as Amici Curiae Cite as: 559 U. S. (200) 2 Opinion of the Court VI Respondent and the Solicitor General have given nu merous reasons why they believe their reading of the FCA moves it closer to the golden mean between an inadequate and an excessive scope for private enforcement. Congress may well have endorsed those views in its recent amend ment to the public disclosure bar. See n. With respect to the version of (A) that is before us, however, we conclude that the term “administrative” in Category 2 is not limited to federal sources. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 559 U. S. (200) Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 08–304 GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T. WILSON ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 30, 200] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join Parts I–III and V–VI of the Court’s opinion. As for Part IV, I agree that the stray snippets of legislative his tory respondent, the Solicitor General, and the dissent have collected prove nothing at all about Congress’s pur pose in enacting 3 U.S. C. Ante, at 4– 8. But I do not share the Court’s premise that if a “ ‘legis lative purpose’ ” were “ ‘evident’ ” from such history it would make any difference. Ante, at 7 (quoting United 30 (976)). The Con stitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. See (998). If (A)’s text includes state and local administra tive reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impos sible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorse ment of the majority in each House: the text of the en rolled bill that became law. Cite as: 559 U. S. (200) SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–304 GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T.

Justice Sotomayor

dissenting

Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson

2010-03-30

https://www.courtlistener.com/opinion/1726/graham-county-soil-and-water-conservation-dist-v-united-states-ex-rel/

https://www.courtlistener.com/api/rest/v3/clusters/1726/

2009-037

The False Claims Act (FCA) divests federal courts of jurisdiction to hear qui tam lawsuits based on allegations or transactions publicly disclosed in a “congressional, administrative, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation,” unless the qui tam relator is an “original source” of the information. 31 U.S. C. §3730(e)(4)(A) (footnote omitted). Today, the Court reads the phrase “administrative . . . report, hear ing, audit, or investigation” to encompass not only federal, but also state and local, government sources. In my view, the Court misreads the statutory text and gives insuffi cient weight to contextual and historical evidence of Con gress’ purpose in enacting §3730. I would affirm the judgment of the Court of Appeals and hold that “adminis trative” in the above-quoted provision refers only to Fed eral Government sources.1 —————— 1 As the Court notes, recent legislation amended the language of 31 U.S. C. §3730(e)(4). See ante, at 1–2, n. 1 (citing Pub. L. 111–148, §10104(j)(2), 124 Stat. 119). Like the Court, I use the present tense throughout this opinion in discussing the statute as it existed at the time this case was argued before this Court. 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting I Section 3730(e)(4)(A) sets forth three categories of “pub lic disclosure[s]” that trigger the FCA’s jurisdictional bar: “allegations or transactions [1] in a criminal, civil, or administrative hearing, [2] in a congressional, administra tive, or [GAO] report, hearing, audit, or investigation, or [3] from the news media.”2 (Like the majority, I have inserted Arabic numerals and refer to the three phrases as “categories.”) “It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michi gan Dept. of Treasury, 489 U.S. 803, 809 (1989)). No party here disputes that “congressional” and “[GAO]” refer only to Federal Government sources. Ante, at 6, and nn. 5–6. As the Court acknowledges, ante, at 5, the word “administrative” is more capacious, potentially reaching not only federal, state, and local government sources but also disclosures by private entities. See, e.g., Black’s Law Dictionary 42 (5th ed. 1979) (defining “administrative” as “pertain[ing] to administration, especially management, . . . [of] the execution, application or conduct of persons or things”). Like the Court of Appeals, I view Congress’ choice of two “clearly federal terms [to] bookend the not-so-clearly fed eral term” as a “very strong contextual cue about the meaning of ‘administrative.’ ” 528 F.3d 292, 302 (CA4 2008). “ ‘The maxim noscitur a sociis, . . . while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of —————— 2 As the Court observes, in enacting §3730(e)(4)(A) Congress errone ously referred to the General Accounting Office—now renamed the Government Accountability Office—as the “Government Accounting Office.” Ante, at 6, n. 6. Cite as: 559 U. S. ____ (2010) 3 SOTOMAYOR, J., dissenting unintended breadth to the Acts of Congress.’ ” Gutierrez v. Ada, 528 U.S. 250, 255 (2000) (quoting Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961)). Here, the imme diate proximity of “congressional” and “[GAO]” suggests that “administrative” should be read, like its neighbors, as referring to Federal Government sources. If Congress had intended to include state or local government administra tive materials, it could have said so, for instance by refer ring generically to “governmental” sources. See 528 F.3d, at 304–305. The Court applies the logic that underlies the noscitur a sociis canon in concluding that “administrative” does not refer to private entities because of the meaning suggested by the slightly more distant neighbors “report, hearing, audit, or investigation.” See ante, at 5. I agree with the majority that “administrative” in this context does not reach private entities. But in my view, “congressional” and “[GAO]” provide the better textual grounding for that conclusion. I see no reason why the “administrati[on]” of a private university, for instance, could not issue a “report,” order an “audit” or “investigation,” or conduct a “hearing.” Nor, contrary to the majority’s suggestion, are private entities—particularly those receiving federal funds or participating in federal programs—incapable of making “public disclosure[s]” of fraud on the Federal Government. Despite its own implicit reliance on the canon, the Court nevertheless rejects the Court of Appeals’ application of noscitur a sociis to interpret the three terms in Category 2, concluding that “[a] list of three items, each quite distinct from the other no matter how construed, is too short to be particularly illuminating.” Ante, at 6–7. The three terms in Category 2, the Court concludes, are “too few and too disparate” to justify invocation of noscitur a sociis. Ante, at 7. We have not previously constrained the canon in this way, and I would not do so here. To take just one example, in Jarecki we construed the 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting statutory term “ ‘abnormal income,’ ” which the statute defined to include income resulting from “ ‘exploration, discovery, or prospecting.’ ” 367 U.S., at 304–305 (quoting §456(a) of the Internal Revenue Code of 1939). Recogniz ing that the word “ ‘[d]iscovery’ ” is “usable in many con texts and with various shades of meaning,” we observed that it “gathers meaning from the words around it” and concluded that “[t]he three words in conjunction . . . all describe income-producing activity in the oil and gas and mining industries.” Id., at 307. As a result, and in light of other contextual evidence supporting the same conclusion, we held that sales of newly invented drugs or camera equipment did not give rise to “abnormal income” even if such inventions might otherwise be understood as “dis cover[ies].” See id., at 307–313. In my view, the three terms in Category 2 are no more “distinct” or “disparate,” ante, at 7, than the phrase at issue in Jarecki, particularly given the expansive plain meaning of “discovery.” Cf. ante, at 7, n. 7. Here, application of the noscitur a sociis principle readily yields a common feature: The sources at issue are federal in nature, not related to state or local governments or private entities. See Third Nat. Bank in Nashville v. Impac Limited, Inc., 432 U.S. 312, 322–323, 315 (1977) (applying principle that “words grouped in a list should be given related meaning” where term “ ‘injunc tion’ ” was “sandwiched” between two other words in the statutory phrase “ ‘attachment, injunction, or execution’ ”).3 —————— 3 The Court relies on Reiter v. Sonotone Corp., 442 U.S. 330, 338–339 (1979), for the proposition that we should not “ ‘rob’ ” any of the three terms in Category 2 of 31 U.S. C. §3730(e)(4)(A) of “ ‘its independent and ordinary significance.’ ” Ante, at 7. But Reiter involved the statu tory term “business or property.” Those two words less readily suggest a shared limiting principle than do “congressional, administrative, or [GAO].” Moreover, our concern about “rob[bing]” the word “ ‘property’ ” of its broader meaning rested on a desire not to “ignore the disjunctive ‘or’ ” in the statutory pairing. 442 U.S., at 338–339; see also id., at 339 (“Canons of construction ordinarily suggest that terms connected by a Cite as: 559 U. S. ____ (2010) 5 SOTOMAYOR, J., dissenting The Court draws additional support for its conclusion from reference to the provision’s “larger scheme,” ante, at 8—i.e., the sources enumerated in Categories 1 and 3. Although the scope of Category 1 is not before us today (and although this Court has never addressed that ques tion), the Court believes that reading Category 2 as lim ited to Federal Government sources would be inconsistent with decisions of lower courts that have interpreted “criminal, civil, or administrative hearing[s]” in Category 1 to include both state and federal proceedings. There is no conflict, however, if both categories are read, as re spondent and the Solicitor General urge, as exclusively federal. See Brief for Respondent 23–24; Brief for United States as Amicus Curiae 25–26. Even reading Category 1 more broadly, however, does not change the exclusively federal nature of “congressional” and “[GAO],” which undermines whatever inference might be drawn from taking the statutory terms in strict succession. Treating the entirety of §3730(e)(4)(A) as an undifferentiated list of items gives short shrift to the syntactical choices Congress made in offsetting each category with commas and prepo sitions, and in providing distinct classes of adjectives that modify different nouns. Finally, the Court also views “news media” as “distinctly nonfederal in nature.” Ante, at 8–9. But “news media” does not seem particularly illuminating in this context. As the Court of Appeals observed, although media sources —————— disjunctive be given separate meanings”). Because Congress did not employ a completely disjunctive list in §3730(e)(4)(A)—i.e., “congres sional or administrative or [GAO]”—the Reiter principle applies with less force. Cf. Garcia v. United States, 469 U.S. 70, 73 (1984) (applying disjunctive principle in construing statutory prohibition on assault and robbery of any custodian of “ ‘mail matter or of any money or other property of the United States,’ ” and observing that “[t]he three classes of property . . . are each separated by the conjunction ‘or’ ” (quoting 18 U.S. C. §2114; some emphasis deleted)). 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting may be national or local in scope, that distinction is not analogous to the difference between federal and state government sources. 528 F.3d, at 304. II In my view, the statutory context and legislative history are also less “opaque,” cf. ante, at 17, and more supportive of the reading adopted by the Court of Appeals, than the majority today acknowledges. While the legislative record is concededly incomplete, it does provide reason to exercise caution before giving the statutory text its broadest possi ble meaning—i.e., to encompass not only federal, but also state and local, government sources. Three points are particularly salient. First, prior to the 1986 amendments, the “Government knowledge” bar unquestionably referred only to information in the posses sion of the Federal Government.4 Even still, the bar was criticized as overly restrictive. A Senate Report on an initial version of the 1986 legislation, for instance, de scribed the FCA’s history and need for legislative reform, noting “several restrictive court interpretations of the act . . . which tend to thwart the effectiveness of the statute.” S. Rep. No. 99–345, p. 4 (1986) (hereinafter S. Rep.). For instance, courts had applied the Government knowledge bar “even if the Government makes no effort to investigate or take action after . . . original allegations [a]re received.” Id., at 12 (citing United States ex rel. Lapin v. Interna tional Business Machines Corp., 490 F. Supp. 244 (Haw. 1980)).5 —————— 4 As originally enacted in 1943, the bar applied to suits “based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought.” 57 Stat. 609. In 1982, Congress recodified the provision to apply to suits “based on evidence or information the Government had when the action was brought.” 96 Stat. 979. 5 The Senate Report also discussed United States ex rel. Wisconsin v. Dean, 729 F.2d 1100 (CA7 1984), in which the court barred Wisconsin Cite as: 559 U. S. ____ (2010) 7 SOTOMAYOR, J., dissenting Second, there is more support than the Court recognizes for the proposition that Congress sought in the 1986 amendments to broaden the availability of qui tam relief. The Senate Report characterized the reform effort as intended to “enhance the Government’s ability to recover losses sustained as a result of fraud against the Govern ment” and dwelt at length on the “severe” and “growing” problem of “fraud in Federal programs.” S. Rep., at 1–2; accord, H. R. Rep. No. 99–660, p. 18 (1986) (“Evidence of fraud in Government programs and procurement is on a steady rise”). The Senate Report also articulated a desire to “encourage any individual knowing of Government fraud to bring that information forward,” and it identified as “perhaps the most serious problem plaguing effective enforcement [of antifraud laws] a lack of resources on the part of Federal enforcement agencies.” S. Rep., at 2, 7.6 Consistent with these expressed views, the enacted legislation was replete with provisions encouraging qui —————— from bringing a qui tam suit for Medicaid fraud because the State had previously disclosed the information to the Federal Government, even when the State’s own investigation had discovered the fraud. S. Rep., at 12–13. Lower courts have observed that the Dean decision was controversial and appears to have motivated the inclusion of the “original source” exception in the 1986 jurisdictional bar. See, e.g., Wang v. FMC Corp., 975 F.2d 1412, 1419 (CA9 1992); see also S. Rep., at 13 (noting resolution by the National Association of Attorneys General criticizing Dean and urging Congress to address the problem). 6 In introducing a later and near-final version of the bill, Senator Grassley described the reform effort as stemming “from a realization that the Government needs help—lots of help—to adequately protect taxpayer funds from growing and increasingly sophisticated fraud.” 132 Cong. Rec. 28580 (1986); see also United States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1347 (CA4 1994) (“By 1986, when section 3730(e)(4) was enacted, Congress had come to the conclu sion that fraud against the Government was apparently so rampant and difficult to identify that the Government could use all the help it could get from private citizens with knowledge of fraud” (internal quotation marks omitted)). 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting tam actions. By replacing the Government knowledge bar with the current text of §3730(e)(4)(A) and including an exception for “original source[s],” Congress “allowed pri vate parties to sue even based on information already in the Government’s possession.” Cook County v. United States ex rel. Chandler, 538 U.S. 119, 133 (2003). The 1986 amendments also established the right of qui tam relators to continue as a party to a suit after the Govern ment intervenes, 31 U.S. C. §3730(c)(1) (1988 ed.); in creased the percentage of recovery available as an incen tive for private suits, §3730(d)(1); and created a cause of action against employers who retaliate against qui tam relators, §3730(h).7 —————— 7 See also 1 J. Boese, Civil False Claims and Qui Tam Actions §1.04[G], p. 1–22 (Supp. 2007) (“[V]irtually all the changes introduced in th[e] section [of the 1986 amendments addressing qui tam actions] expanded the rights of qui tam relators”). The amendments also contained a number of provisions facilitating enforcement generally, e.g., lowering the requisite showing of intent by making clear that “knowing” violations require “no proof of specific intent to defraud,” 31 U.S. C. §3729(b)(1) (1988 ed.); lengthening the statute of limitations, §3731(b); and authorizing treble damages, §3729(a). The Court fairly observes that the addition of “news media” to the jurisdictional bar undercuts attributing to Congress a “single-minded” intent to expand the availability of qui tam relief. Ante, at 19. But neither does that provision support reading Category 2 to its broadest possible extent. Moreover, barring suits based on “news media” disclo sures may not have constituted a particularly significant expansion of existing law. Courts had applied the pre-1986 Government knowledge bar to dismiss actions based on information reported in the news media. In United States ex rel. Thompson v. Hays, 432 F. Supp. 253, 256, 255 (DC 1976), the court dismissed a suit based on evidence “gleaned from sources in the news media which received widespread public attention [alleging fraud by a Member of Congress],” when the Department of Justice “first obtained information regarding the claims . . . as a result of [a] Washington Post article.” Similarly, the court in United States v. Burmah Oil Co., 558 F.2d 43, 46, n. 1 (CA2 1977) (per curiam) characterized the Government knowledge bar as “dis courag[ing] the filing of actions by parties having no information of their own to contribute, but who merely plagiarized information in Cite as: 559 U. S. ____ (2010) 9 SOTOMAYOR, J., dissenting To be sure, Congress was also concerned in 1986, as in 1943, with guarding against purely opportunistic, “para sitic” qui tam relators. See S. Rep., at 10–11 (describing history of parasitic suits and the 1943 amendments); ante, at 12–13. Lower courts have viewed the 1986 amend ments as striking a balance between the “twin goals of rejecting suits which the government is capable of pursu ing itself, while promoting those which the government is not equipped to bring on its own.” United States ex rel. Springfield Terminal R. Co. v. Quinn, 14 F.3d 645, 651 (CADC 1994). But evidence that Congress sought to balance two competing goals supports moderation in interpreting an arguably ambiguous statutory text, rather than woodenly reading the statutory language to its fullest possible extent. Third, the legislative record “ ‘contains no hint of any intention’ ” to bar suits based on disclosures from state or local government sources. Brief for United States as Amicus Curiae 20 (quoting United States ex rel. Anti- Discrimination Center of Metro N. Y., Inc. v. Westchester Cty., 495 F. Supp. 2d 375, 383 (SDNY 2007)). Inclusion of state or local government sources would have constituted a significant departure from the Federal Government knowledge bar that had existed for four decades by 1986. But neither the initial bills reported by the Senate and House Committees nor statements by individual Members of Congress about subsequent versions of the legislation suggest any consideration or debate about expanding the pre-1986 bar to apply to state or local government —————— indictments returned in the courts, newspaper stories or congressional investigations.” Congress could have reasonably assumed in 1986 that news media would report on the kinds of high-profile frauds that would naturally—perhaps as a result of the reporting—come to the Govern ment’s attention, and thus would already have been covered under existing law. 10 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting sources.8 Although these points do not definitively resolve the question presented today, to my mind they counsel against reading §3730(e)(4)(A) (2006 ed.) so broadly as to disturb the balance Congress evidently sought to achieve through the 1986 amendments. Today’s decision risks such a result. The Court imposes a jurisdictional bar that is by all appearances more restrictive of qui tam suits than the pre-1986 regime. Construing §3730(e)(4)(A) to encompass the thousands of state and local government administra tive reports produced each year effectively imputes to the Federal Government knowledge of such sources, whether or not the Government is aware of the information or in a —————— 8 In June 1986, the House Committee on the Judiciary reported a bill that would have barred qui tam actions based on information “which the Government disclosed as a basis for allegations made in a prior administrative, civil, or criminal proceeding,” “disclosed during the course of a congressional investigation,” or “disseminated by any news media.” H. R. Rep. No. 99–660, pp. 2, 3 (internal quotation marks omitted). The references to information disclosed by the Government itself (with a capital “G”) and to “congressional investigation[s]” connote federal, not state or local, government sources. In July, the Senate Committee on the Judiciary reported its own version of the bill, barring actions “based upon allegations or transactions which are the subject of a civil suit in which the Government is already a party, or within six months of the disclosure of specific information relating to such allega tions or transactions in a criminal, civil, or administrative hearing, a congressional or Government Accounting Office report or hearing, or from the news media.” S. Rep., at 43. The reference to suits in which the Federal Government is a party and absence of the ambiguous term “administrative” in the bill’s reference to “congressional or [GAO]” reports or hearings, similarly tend to exclude disclosures from state or local government reports. The enacted legislation did differ in several respects from the reported bills, but the subsequent legislative record contains no reference to the inclusion of state or local government sources. See, e.g., 132 Cong. Rec. 20535–20537 (statement of Sen. Grassley); id., at 29321–29322 (statements of Reps. Glickman and Berman). Cite as: 559 U. S. ____ (2010) 11 SOTOMAYOR, J., dissenting position to act on it.9 The Solicitor General specifically warns that while information in federal administrative audits or investigations is “readily available” to attorneys at the Department of Justice, “many state and local re ports and investigations never come to the attention of federal authorities.” Brief for United States as Amicus Curiae 22. The Court dismisses this concern as “sheer conjecture,” postulating that Government lawyers “may” in fact learn about “quite a few” state or local reports and investigations, particularly in joint state-federal pro grams.10 Ante, at 18. Perhaps so. But absent any con crete reason to believe otherwise, I would not so readily dismiss the formal representation of the Executive Branch entity with responsibility for, and practical experience in, litigating FCA claims on behalf of the United States. In sum, the statute’s plain text, evidence of Congress’ intent to expand qui tam actions, and practical conse —————— 9 Of course, 31 U.S. C. §3730(e)(4)(A) (2006 ed.) speaks of “public disclosure,” not notice to the Government. But the requirement of a “public” disclosure countenances notice, both to the public and other wise. Indeed, a number of lower courts look to whether the Federal Government is “on notice” of alleged fraud before concluding that a particular source is a “public disclosure of allegations or transactions” under §3730(e)(4)(A). See, e.g., United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 512 (CA6 2009) (“[A] public disclosure reveals fraud if the information is sufficient to put the government on notice of the likelihood of related fraudulent activity” (internal quotation marks omitted)); United States v. Alcan Elec. & Eng., Inc., 197 F.3d 1014, 1020 (CA9 1999) (similar); United States ex rel. Fine v. Sandia Corp., 70 F.3d 568, 572 (CA10 1995) (similar). 10 The Court observes that federal law requires some recipients of federal funds to conduct audits, ante, at 18, n. 18, and amici States point to the auditing and reporting requirements of the Single Audit Act of 1984, Brief for State of Pennsylvania et al. as Amici Curiae 7–10 (hereinafter States Brief). But neither the Court nor the amici rebut the Solicitor General’s pragmatic observation that “the vague and summary nature of many of those reports . . . does not . . . alert the federal government of fraud.” Brief for United States as Amicus Curiae 31. 12 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting quences of a more expansive interpretation together sug gest Category 2 is most reasonably read to encompass federal, but not state or local, government sources.11 * * * For the reasons given above, I would affirm the judg ment of the Court of Appeals, and respectfully dissent. —————— 11 The majority notes in passing several policy arguments advanced by petitioners and their amici. Ante, at 20, n. 19. None merits much weight. Petitioners are concerned about a race to the courthouse, in which parasitic relators will capitalize on information released in a state or local government report to the disadvantage of a slow-moving insider. Brief for Petitioners 31. But the FCA’s first-to-file provision, 31 U.S. C. §3730(b)(5), reflects Congress’ explicit policy choice to encourage prompt filing and, in turn, prompt recovery of defrauded funds by the United States. Amici States are concerned that relators may interfere with ongoing state and local government investigations by “trolling state records and reports” for evidence of fraud. States Brief 11. But some state freedom-of-information laws exempt materials related to ongoing civil investigations. See, e.g., Kan. Stat. Ann. §45– 221(a)(11) (2008 Cum. Supp.); Pa. Stat. Ann., Tit. 65, §67.708(b)(17) (Purdon Supp. 2009). In any event, the FCA contains no provision giving state or local governments a privileged position as qui tam relators or, with respect to local governments, defendants

The False Claims Act (FCA) divests federal courts of jurisdiction to hear qui tam lawsuits based on allegations or transactions publicly disclosed in a “congressional, administrative, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation,” unless the qui tam relator is an “original source” of the information. 31 U.S. C. (footnote omitted). Today, the Court reads the phrase “administrative report, hear ing, audit, or investigation” to encompass not only federal, but also state and local, government In my view, the Court misreads the statutory text and gives insuffi cient weight to contextual and historical evidence of Con gress’ purpose in enacting I would affirm the judgment of the Court of Appeals and hold that “adminis trative” in the above-quoted provision refers only to Fed eral Government 1 —————— 1 As the Court notes, recent legislation amended the language of 31 U.S. C. See ante, at 1–2, n. 1 (citing Pub. L. 111–148, ). Like the Court, I use the present tense throughout this opinion in discussing the statute as it existed at the time this case was argued before this Court. 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting I Section 30(e)(4)(A) sets forth three categories of “pub lic disclosure[s]” that trigger the FCA’s jurisdictional bar: “allegations or transactions [1] in a criminal, civil, or administrative hearing, [2] in a congressional, administra tive, or [GAO] report, hearing, audit, or investigation, or [3] from the news media.”2 (Like the majority, I have inserted Arabic numerals and refer to the three phrases as “categories.”) “It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” ). No party here disputes that “congressional” and “[GAO]” refer only to Federal Government Ante, at 6, and nn. 5–6. As the Court acknowledges, ante, at 5, the word “administrative” is more capacious, potentially reaching not only federal, state, and local government sources but also disclosures by private entities. See, e.g., Black’s Law Dictionary 42 (5th ed. 1979) (defining “administrative” as “pertain[ing] to administration, especially management, [of] the execution, application or conduct of persons or things”). Like the Court of Appeals, I view Congress’ choice of two “clearly federal terms [to] bookend the not-so-clearly fed eral term” as a “very strong contextual cue about the meaning of ‘administrative.’ ” (CA4 2008). “ ‘The maxim noscitur a sociis, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of —————— 2 As the Court observes, in enacting Congress errone ously referred to the General Accounting Office—now renamed the Government Accountability Office—as the “Government Accounting Office.” Ante, at 6, n. 6. Cite as: 559 U. S. (2010) 3 SOTOMAYOR, J., dissenting unintended breadth to the Acts of Congress.’ ” Gutierrez v. Ada, ). Here, the imme diate proximity of “congressional” and “[GAO]” suggests that “administrative” should be read, like its neighbors, as referring to Federal Government If Congress had intended to include state or local government administra tive materials, it could have said so, for instance by refer ring generically to “governmental” See 528 F.3d, at 304–305. The Court applies the logic that underlies the noscitur a sociis canon in concluding that “administrative” does not refer to private entities because of the meaning suggested by the slightly more distant neighbors “report, hearing, audit, or investigation.” See ante, at 5. I agree with the majority that “administrative” in this context does not reach private entities. But in my view, “congressional” and “[GAO]” provide the better textual grounding for that conclusion. I see no reason why the “administrati[on]” of a private university, for instance, could not issue a “report,” order an “audit” or “investigation,” or conduct a “hearing.” Nor, contrary to the majority’s suggestion, are private entities—particularly those receiving federal funds or participating in federal programs—incapable of making “public disclosure[s]” of fraud on the Federal Government. Despite its own implicit reliance on the canon, the Court nevertheless rejects the Court of Appeals’ application of noscitur a sociis to interpret the three terms in Category 2, concluding that “[a] list of three items, each quite distinct from the other no matter how construed, is too short to be particularly illuminating.” Ante, at 6–7. The three terms in Category 2, the Court concludes, are “too few and too disparate” to justify invocation of noscitur a sociis. Ante, at 7. We have not previously constrained the canon in this way, and I would not do so here. To take just one example, in Jarecki we construed the 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting statutory term “ ‘abnormal income,’ ” which the statute defined to include income resulting from “ ‘exploration, discovery, or prospecting.’ ” –305 (quoting of the Internal Revenue Code of 1939). Recogniz ing that the word “ ‘[d]iscovery’ ” is “usable in many con texts and with various shades of meaning,” we observed that it “gathers meaning from the words around it” and concluded that “[t]he three words in conjunction all describe income-producing activity in the oil and gas and mining industries.” at As a result, and in light of other contextual evidence supporting the same conclusion, we held that sales of newly invented drugs or camera equipment did not give rise to “abnormal income” even if such inventions might otherwise be understood as “dis cover[ies].” See at –313. In my view, the three terms in Category 2 are no more “distinct” or “disparate,” ante, at 7, than the phrase at issue in Jarecki, particularly given the expansive plain meaning of “discovery.” Cf. ante, at 7, n. 7. Here, application of the noscitur a sociis principle readily yields a common feature: The sources at issue are federal in nature, not related to state or local governments or private entities. See Third Nat. Bank in 322–323, 315 (applying principle that “words grouped in a list should be given related meaning” where term “ ‘injunc tion’ ” was “sandwiched” between two other words in the statutory phrase “ ‘attachment, injunction, or execution’ ”).3 —————— 3 The Court relies on 338–339 (1979), for the proposition that we should not “ ‘rob’ ” any of the three terms in Category 2 of 31 U.S. C. of “ ‘its independent and ordinary significance.’ ” Ante, at 7. But Reiter involved the statu tory term “business or property.” Those two words less readily suggest a shared limiting principle than do “congressional, administrative, or [GAO].” Moreover, our concern about “rob[bing]” the word “ ‘property’ ” of its broader meaning rested on a desire not to “ignore the disjunctive ‘or’ ” in the statutory –339; see also (“Canons of construction ordinarily suggest that terms connected by a Cite as: 559 U. S. (2010) 5 SOTOMAYOR, J., dissenting The Court draws additional support for its conclusion from reference to the provision’s “larger scheme,” ante, at 8—i.e., the sources enumerated in Categories 1 and 3. Although the scope of Category 1 is not before us today (and although this Court has never addressed that ques tion), the Court believes that reading Category 2 as lim ited to Federal Government sources would be inconsistent with decisions of lower courts that have interpreted “criminal, civil, or administrative hearing[s]” in Category 1 to include both state and federal proceedings. There is no conflict, however, if both categories are read, as re spondent and the Solicitor General urge, as exclusively federal. See Brief for Respondent 23–24; Brief for United States as Amicus Curiae 25–26. Even reading Category 1 more broadly, however, does not change the exclusively federal nature of “congressional” and “[GAO],” which undermines whatever inference might be drawn from taking the statutory terms in strict succession. Treating the entirety of as an undifferentiated list of items gives short shrift to the syntactical choices Congress made in offsetting each category with commas and prepo sitions, and in providing distinct classes of adjectives that modify different nouns. Finally, the Court also views “news media” as “distinctly nonfederal in nature.” Ante, at 8–9. But “news media” does not seem particularly illuminating in this context. As the Court of Appeals observed, although media sources —————— disjunctive be given separate meanings”). Because Congress did not employ a completely disjunctive list in —i.e., “congres sional or administrative or [GAO]”—the Reiter principle applies with less force. Cf. (applying disjunctive principle in construing statutory prohibition on assault and robbery of any custodian of “ ‘mail matter or of any money or other property of the United States,’ ” and observing that “[t]he three classes of property are each separated by the conjunction ‘or’ ” (quoting 18 U.S. C. some emphasis deleted)). 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting may be national or local in scope, that distinction is not analogous to the difference between federal and state government II In my view, the statutory context and legislative history are also less “opaque,” cf. ante, at 17, and more supportive of the reading adopted by the Court of Appeals, than the majority today acknowledges. While the legislative record is concededly incomplete, it does provide reason to exercise caution before giving the statutory text its broadest possi ble meaning—i.e., to encompass not only federal, but also state and local, government Three points are particularly salient. First, prior to the 1986 amendments, the “Government knowledge” bar unquestionably referred only to information in the posses sion of the Federal Government.4 Even still, the bar was criticized as overly restrictive. A Senate Report on an initial version of the 1986 legislation, for instance, de scribed the FCA’s history and need for legislative reform, noting “several restrictive court interpretations of the act which tend to thwart the effectiveness of the statute.” S. Rep. No. 99–345, p. 4 (1986) (hereinafter S. Rep.). For instance, courts had applied the Government knowledge bar “even if the Government makes no effort to investigate or take action after original allegations [a]re received.” at 12 (citing United States ex rel. (Haw. 1980)).5 —————— 4 As originally enacted in 1943, the bar applied to suits “based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought.” In 1982, Congress recodified the provision to apply to suits “based on evidence or information the Government had when the action was brought.” 5 The Senate Report also discussed United States ex rel. Wisconsin v. Dean, in which the court barred Wisconsin Cite as: 559 U. S. (2010) 7 SOTOMAYOR, J., dissenting Second, there is more support than the Court recognizes for the proposition that Congress sought in the 1986 amendments to broaden the availability of qui tam relief. The Senate Report characterized the reform effort as intended to “enhance the Government’s ability to recover losses sustained as a result of fraud against the Govern ment” and dwelt at length on the “severe” and “growing” problem of “fraud in Federal programs.” S. Rep., at 1–2; accord, H. R. Rep. No. 99–660, p. 18 (1986) (“Evidence of fraud in Government programs and procurement is on a steady rise”). The Senate Report also articulated a desire to “encourage any individual knowing of Government fraud to bring that information forward,” and it identified as “perhaps the most serious problem plaguing effective enforcement [of antifraud laws] a lack of resources on the part of Federal enforcement agencies.” S. Rep., at 2, 7.6 Consistent with these expressed views, the enacted legislation was replete with provisions encouraging qui —————— from bringing a qui tam suit for Medicaid fraud because the State had previously disclosed the information to the Federal Government, even when the State’s own investigation had discovered the fraud. S. Rep., at 12–13. Lower courts have observed that the Dean decision was controversial and appears to have motivated the inclusion of the “original source” exception in the 1986 jurisdictional bar. See, e.g., ; see also S. Rep., at 13 (noting resolution by the National Association of Attorneys General criticizing Dean and urging Congress to address the problem). 6 In introducing a later and near-final version of the bill, Senator Grassley described the reform effort as stemming “from a realization that the Government needs help—lots of help—to adequately protect taxpayer funds from growing and increasingly sophisticated fraud.” 132 Cong. Rec. 28580 (1986); see also United States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 9, (“By 1986, when section 30(e)(4) was enacted, Congress had come to the conclu sion that fraud against the Government was apparently so rampant and difficult to identify that the Government could use all the help it could get from private citizens with knowledge of fraud” (internal quotation marks omitted)). 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting tam actions. By replacing the Government knowledge bar with the current text of and including an exception for “original source[s],” Congress “allowed pri vate parties to sue even based on information already in the Government’s possession.” Cook The 1986 amendments also established the right of qui tam relators to continue as a party to a suit after the Govern ment intervenes, 31 U.S. C. §30(c)(1) (1988 ed.); in creased the percentage of recovery available as an incen tive for private suits, §30(d)(1); and created a cause of action against employers who retaliate against qui tam relators, §30(h).7 —————— 7 See also 1 J. Boese, Civil False Claims and Qui Tam Actions p. 1–22 (“[V]irtually all the changes introduced in th[e] section [of the 1986 amendments addressing qui tam actions] expanded the rights of qui tam relators”). The amendments also contained a number of provisions facilitating enforcement generally, e.g., lowering the requisite showing of intent by making clear that “knowing” violations require “no proof of specific intent to defraud,” 31 U.S. C. (1988 ed.); lengthening the statute of limitations, §31(b); and authorizing treble damages, The Court fairly observes that the addition of “news media” to the jurisdictional bar undercuts attributing to Congress a “single-minded” intent to expand the availability of qui tam relief. Ante, at 19. But neither does that provision support reading Category 2 to its broadest possible extent. Moreover, barring suits based on “news media” disclo sures may not have constituted a particularly significant expansion of existing law. Courts had applied the pre-1986 Government knowledge bar to dismiss actions based on information reported in the news media. In United States ex rel. 256, (DC 1976), the court dismissed a suit based on evidence “gleaned from sources in the news media which received widespread public attention [alleging fraud by a Member of Congress],” when the Department of Justice “first obtained information regarding the claims as a result of [a] Washington Post article.” Similarly, the court in United (per curiam) characterized the Government knowledge bar as “dis courag[ing] the filing of actions by parties having no information of their own to contribute, but who merely plagiarized information in Cite as: 559 U. S. (2010) 9 SOTOMAYOR, J., dissenting To be sure, Congress was also concerned in 1986, as in 1943, with guarding against purely opportunistic, “para sitic” qui tam relators. See S. Rep., at 10–11 (describing history of parasitic suits and the 1943 amendments); ante, at 12–13. Lower courts have viewed the 1986 amend ments as striking a balance between the “twin goals of rejecting suits which the government is capable of pursu ing itself, while promoting those which the government is not equipped to bring on its own.” United States ex rel. Springfield Terminal R. But evidence that Congress sought to balance two competing goals supports moderation in interpreting an arguably ambiguous statutory text, rather than woodenly reading the statutory language to its fullest possible extent. Third, the legislative record “ ‘contains no hint of any intention’ ” to bar suits based on disclosures from state or local government Brief for United States as Amicus Curiae 20 ). Inclusion of state or local government sources would have constituted a significant departure from the Federal Government knowledge bar that had existed for four decades by 1986. But neither the initial bills reported by the Senate and House Committees nor statements by individual Members of Congress about subsequent versions of the legislation suggest any consideration or debate about expanding the pre-1986 bar to apply to state or local government —————— indictments returned in the courts, newspaper stories or congressional investigations.” Congress could have reasonably assumed in 1986 that news media would report on the kinds of high-profile frauds that would naturally—perhaps as a result of the reporting—come to the Govern ment’s attention, and thus would already have been covered under existing law. 10 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting 8 Although these points do not definitively resolve the question presented today, to my mind they counsel against reading (2006 ed.) so broadly as to disturb the balance Congress evidently sought to achieve through the 1986 amendments. Today’s decision risks such a result. The Court imposes a jurisdictional bar that is by all appearances more restrictive of qui tam suits than the pre-1986 regime. Construing to encompass the thousands of state and local government administra tive reports produced each year effectively imputes to the Federal Government knowledge of such sources, whether or not the Government is aware of the information or in a —————— 8 In June 1986, the House Committee on the Judiciary reported a bill that would have barred qui tam actions based on information “which the Government disclosed as a basis for allegations made in a prior administrative, civil, or criminal proceeding,” “disclosed during the course of a congressional investigation,” or “disseminated by any news media.” H. R. Rep. No. 99–660, pp. 2, 3 (internal quotation marks omitted). The references to information disclosed by the Government itself (with a capital “G”) and to “congressional investigation[s]” connote federal, not state or local, government In July, the Senate Committee on the Judiciary reported its own version of the bill, barring actions “based upon allegations or transactions which are the subject of a civil suit in which the Government is already a party, or within six months of the disclosure of specific information relating to such allega tions or transactions in a criminal, civil, or administrative hearing, a congressional or Government Accounting Office report or hearing, or from the news media.” S. Rep., at 43. The reference to suits in which the Federal Government is a party and absence of the ambiguous term “administrative” in the bill’s reference to “congressional or [GAO]” reports or hearings, similarly tend to exclude disclosures from state or local government reports. The enacted legislation did differ in several respects from the reported bills, but the subsequent legislative record contains no reference to the inclusion of state or local government See, e.g., 132 Cong. Rec. 20535–20537 (statement of Sen. Grassley); at 29321–29322 (statements of Reps. Glickman and Berman). Cite as: 559 U. S. (2010) 11 SOTOMAYOR, J., dissenting position to act on it.9 The Solicitor General specifically warns that while information in federal administrative audits or investigations is “readily available” to attorneys at the Department of Justice, “many state and local re ports and investigations never come to the attention of federal authorities.” Brief for United States as Amicus Curiae 22. The Court dismisses this concern as “sheer conjecture,” postulating that Government lawyers “may” in fact learn about “quite a few” state or local reports and investigations, particularly in joint state-federal pro grams.10 Ante, at 18. Perhaps so. But absent any con crete reason to believe otherwise, I would not so readily dismiss the formal representation of the Executive Branch entity with responsibility for, and practical experience in, litigating FCA claims on behalf of the United States. In sum, the statute’s plain text, evidence of Congress’ intent to expand qui tam actions, and practical conse —————— 9 Of course, 31 U.S. C. (2006 ed.) speaks of “public disclosure,” not notice to the Government. But the requirement of a “public” disclosure countenances notice, both to the public and other wise. Indeed, a number of lower courts look to whether the Federal Government is “on notice” of alleged fraud before concluding that a particular source is a “public disclosure of allegations or transactions” under See, e.g., United States ex rel. (“[A] public disclosure reveals fraud if the information is sufficient to put the government on notice of the likelihood of related fraudulent activity” (internal quotation marks omitted)); United 1020 (CA9 1999) ; United States ex rel. 10 The Court observes that federal law requires some recipients of federal funds to conduct audits, ante, at 18, n. 18, and amici States point to the auditing and reporting requirements of the Single Audit Act of Brief for State of Pennsylvania et al. as Amici Curiae 7–10 (hereinafter States Brief). But neither the Court nor the amici rebut the Solicitor General’s pragmatic observation that “the vague and summary nature of many of those reports does not alert the federal government of fraud.” Brief for United States as Amicus Curiae 31. 12 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON SOTOMAYOR, J., dissenting quences of a more expansive interpretation together sug gest Category 2 is most reasonably read to encompass federal, but not state or local, government 11 * * * For the reasons given above, I would affirm the judg ment of the Court of Appeals, and respectfully dissent. —————— 11 The majority notes in passing several policy arguments advanced by petitioners and their amici. Ante, at 20, n. 19. None merits much weight. Petitioners are concerned about a race to the courthouse, in which parasitic relators will capitalize on information released in a state or local government report to the disadvantage of a slow-moving insider. Brief for Petitioners 31. But the FCA’s first-to-file provision, 31 U.S. C. §30(b)(5), reflects Congress’ explicit policy choice to encourage prompt filing and, in turn, prompt recovery of defrauded funds by the United States. Amici States are concerned that relators may interfere with ongoing state and local government investigations by “trolling state records and reports” for evidence of fraud. States Brief 11. But some state freedom-of-information laws exempt materials related to ongoing civil investigations. See, e.g., – 221(a)(11) (2008 Cum. Supp.); Pa. Stat. Ann., Tit. 65, In any event, the FCA contains no provision giving state or local governments a privileged position as qui tam relators or, with respect to local governments, defendants

Justice Alito

majority

Hawaii v. Office of Hawaiian Affairs

2009-03-31

https://www.courtlistener.com/opinion/145894/hawaii-v-office-of-hawaiian-affairs/

https://www.courtlistener.com/api/rest/v3/clusters/145894/

2008-037

This case presents the question whether Congress stripped the State of Hawaii of its authority to alienate its sovereign territory by passing a joint resolution to apolo gize for the role that the United States played in over throwing the Hawaiian monarchy in the late 19th century. Relying on Congress’ joint resolution, the Supreme Court of Hawaii permanently enjoined the State from alienating certain of its lands, pending resolution of native Hawai ians’ land claims that the court described as “unrelin quished.” We reverse. I A In 1893, “[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.” Rice v. Cayetano, 528 U.S. 495, 504–505 (2000). “That government sought annexation by the United States,” id., at 505, which the United States granted, see Joint Resolu tion to Provide for Annexing the Hawaiian Islands to the 2 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court United States, No. 55, 30 Stat. 750 (hereinafter Newlands Resolution). Pursuant to the Newlands Resolution, the Republic of Hawaii “cede[d] absolutely and without re serve to the United States of America all rights of sover eignty of whatsoever kind” and further “cede[d] and trans fer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining” (hereinafter ceded lands).1 Ibid. The Newlands Resolution further provided that all “prop erty and rights” in the ceded lands “are vested in the United States of America.” Ibid. Two years later, Congress established a government for the Territory of Hawaii. See Act of Apr. 30, 1900, ch. 339, 31 Stat. 141 (hereinafter Organic Act). The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in “absolute fee” under that resolution. See §2, ibid. The Organic Act further provided: “[T]he portion of the public domain heretofore known as Crown land is hereby declared to have been, on [the effective date of the Newlands Resolution], and prior thereto, the property of the Hawaiian government, and to be free and clear from any trust of or concern ing the same, and from all claim of any nature what soever, upon the rents, issues, and profits thereof. It shall be subject to alienation and other uses as may be provided by law.” §99, id., at 161; see also §91, id., at 159. —————— 1 “Crown lands” were lands formerly held by the Hawaiian monarchy. “Public” and “Government” lands were other lands held by the Hawai ian government. Cite as: 556 U. S. ____ (2009) 3 Opinion of the Court In 1959, Congress admitted Hawaii to the Union. See Pub. L. 86–3, 73 Stat. 4 (hereinafter Admission Act). Under the Admission Act, with exceptions not relevant here, “the United States grant[ed] to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all the public lands and other public prop erty within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” §5(b), id., at 5. These lands, “together with the proceeds from the sale or other disposi tion of [these] lands and the income therefrom, shall be held by [the] State as a public trust” to promote various public purposes, including supporting public education, bettering conditions of Native Hawaiians, developing home ownership, making public improvements, and pro viding lands for public use. §5(f), id., at 6. Hawaii state law also authorizes the State to use or sell the ceded lands, provided that the proceeds are held in trust for the benefit of the citizens of Hawaii. See, e.g., Haw. Rev. Stat. §§171–45, 171–18 (1993). In 1993, Congress enacted a joint resolution “to ac knowledge the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the United Church of Christ with Native Hawaiians.” Joint Resolution to Ac knowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103–150, 107 Stat. 1510, 1513 (hereinafter Apology Resolution). In a series of the preambular “whereas” clauses, Congress made various observations about Hawaii’s history. For example, the Apology Resolution states that “the indige nous Hawaiian people never directly relinquished their claims . . . over their national lands to the United States” and that “the health and well-being of the Native Hawai ian people is intrinsically tied to their deep feelings and 4 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court attachment to the land.” Id., at 1512. In the same vein, the resolution’s only substantive section—entitled “Ac knowledgement and Apology”—states that Congress: “(1) . . . acknowledges the historical significance of this event which resulted in the suppression of the in herent sovereignty of the Native Hawaiian people; “(2) recognizes and commends efforts of reconcilia tion initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians; “(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the par ticipation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination; “(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Ha waii, in order to provide a proper foundation for rec onciliation between the United States and the Native Hawaiian people; and “(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation ef forts between the United States and the Native Ha waiian people.” Id., at 1513. Finally, §3 of the Apology Resolution states that “Nothing in this Joint Resolution is intended to serve as a settle ment of any claims against the United States.” Id., at 1514. B This suit involves a tract of former crown land on Maui, now known as the “Leiali’i parcel,” that was ceded in “absolute fee” to the United States at annexation and has been held by the State since 1959 as part of the trust Cite as: 556 U. S. ____ (2009) 5 Opinion of the Court established by §5(f) of the Admission Act. The Housing Finance and Development Corporation (HFDC)—Hawaii’s affordable housing agency—received approval to remove the Leiali’i parcel from the §5(f) trust and redevelop it. In order to transfer the Leiali’i parcel out of the public trust, HFDC was required to compensate respondent Office of Hawaiian Affairs (OHA), which was established to receive and manage funds from the use or sale of the ceded lands for the benefit of native Hawaiians. Haw. Const., Art. XII, §§4–6. In this case, however, OHA demanded more than mone tary compensation. Relying on the Apology Resolution, respondent OHA demanded that HFDC include a dis claimer preserving any native Hawaiian claims to owner ship of lands transferred from the public trust for redevel opment. HFDC declined to include the requested disclaimer because “to do so would place a cloud on title, rendering title insurance unavailable.” App. to Pet. for Cert. 207a. Again relying on the Apology Resolution, respondents then sued the State, its Governor, HFDC (since renamed), and its officials. Respondents sought “to enjoin the defen dants from selling or otherwise transferring the Leiali’i parcel to third parties and selling or otherwise transfer ring to third parties any of the ceded lands in general until a determination of the native Hawaiians’ claims to the ceded lands is made.” Office of Hawaiian Affairs v. Hous ing and Community Development Corp. of Hawaii, 117 Haw. 174, 189, 177 P.3d 884, 899 (2008). Respondents “alleged that an injunction was proper because, in light of the Apology Resolution, any transfer of ceded lands by the State to third-parties would amount to a breach of trust . . . .” Id., at 188, 177 P. 3d, at 898. The state trial court entered judgment against respon dents, but the Supreme Court of Hawaii vacated the lower court’s ruling. Relying on a “plain reading of the Apology 6 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court Resolution,” which “dictate[d]” its conclusion, id., at 212, 177 P. 3d, at 988, the State Supreme Court ordered “an injunction against the defendants from selling or other wise transferring to third parties (1) the Leiali’i parcel and (2) any other ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands have been resolved,” id., at 218, 177 P. 3d, at 928. In doing so, the court rejected petitioners’ argument that “the State has the undoubted and explicit power to sell ceded lands pursuant to the terms of the Admission Act and pursuant to state law.” Id., at 211, 177 P. 3d, at 920 (internal quo tation marks and alterations omitted). We granted certio rari. 555 U. S. ___ (2008). II Before turning to the merits, we first must address our jurisdiction. According to respondents, the Supreme Court of Hawaii “merely held that, in light of the ongoing recon ciliation process, the sale of ceded lands would constitute a breach of the State’s fiduciary duty to Native Hawaiians under state law.” Brief for Respondents 17. Because respondents believe that this case does not raise a federal question, they urge us to dismiss for lack of jurisdiction. Although respondents dwell at length on that argument, see id., at 19–34, we need not tarry long to reject it. This Court has jurisdiction whenever “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Michigan v. Long, 463 U.S. 1032, 1040–1041 (1983). Far from providing a “plain statement” that its decision rested on state law, id., at 1041, the State Supreme Court plainly held that its deci sion was “dictate[d]” by federal law—in particular, the Apology Resolution, see 117 Haw., at 212, 177 P. 3d, at 922. Indeed, the court explained that the Apology Resolu Cite as: 556 U. S. ____ (2009) 7 Opinion of the Court tion lies “[a]t the heart of [respondents’] claims,” that respondents’ “current claim for injunctive relief is . . . based largely upon the Apology Resolution,” and that respondents’ arguments presuppose that the Apology Resolution “changed the legal landscape and restructured the rights and obligations of the State.” Id., at 189–190, 177 P. 3d, at 899–900 (internal quotation marks omitted). The court noted that “[t]he primary question before this court on appeal is whether, in light of the Apology Resolu tion, this court should issue an injunction” against sale of the trust lands, id., at 210, 177 P. 3d, at 920, and it con cluded, “[b]ased on a plain reading” of the Apology Resolu tion, that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands,” id., at 191, 177 P. 3d, at 901. Based on these and the remainder of the State Supreme Court’s 77 references to the Apology Resolution, we have no doubt that the decision below rested on federal law.2 We are therefore satisfied that this Court has jurisdiction. See 28 U.S. C. §1257. III Turning to the merits, we must decide whether the Apology Resolution “strips Hawaii of its sovereign author ity to sell, exchange, or transfer” (Pet. for Cert. i) the lands —————— 2 Respondents argue that the Supreme Court of Hawaii relied on the Apology Resolution “simply to support its factual determination that Native Hawaiians have unresolved claims to the ceded lands.” Brief for Respondents 21. Regardless of its factual determinations, however, the lower court’s legal conclusions were, at the very least, “interwoven with the federal law.” Michigan v. Long, 463 U.S. 1032, 1040 (1983). See Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, 117 Haw. 174, 217, 218, 177 P.3d 884, 927, 928 (2008) (“hold[ing]” that respondents’ legal claim “arose” only when “the Apol ogy Resolution was signed into law on November 23, 1993”); id., at 211, n. 25, 177 P.3d, at 921, n. 25 (emphasizing that “our holding is grounded in Hawai‘i and federal law”). See also n. 4, infra. 8 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court that the United States held in “absolute fee” (30 Stat. 750) and “grant[ed] to the State of Hawaii, effective upon its admission into the Union” (73 Stat. 5). We conclude that the Apology Resolution has no such effect. A “We begin, as always, with the text of the statute.” Permanent Mission of India to United Nations v. City of New York, 551 U.S. 193, 197 (2007). The Apology Resolu tion contains two substantive provisions. See 107 Stat. 1513–1514. Neither justifies the judgment below. The resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifi cally, Congress “acknowledge[d] the historical signifi cance” of the Hawaiian monarchy’s overthrow, “recog nize[d] and commend[ed] efforts of reconciliation” with native Hawaiians, “apologize[d] to [n]ative Hawaiians” for the monarchy’s overthrow, “expresse[d] [Congress’s] com mitment to acknowledge the ramifications of the over throw,” and “urge[d] the President of the United States to also acknowledge the ramifications of the overthrow . . . .” §1. Such terms are not the kind that Congress uses to create substantive rights—especially those that are en forceable against the cosovereign States. See, e.g., Penn hurst State School and Hospital v. Halderman, 451 U.S. 1, 17–18 (1981).3 —————— 3 TheApology Resolution’s operative provisions thus stand in sharp contrast with those of other “apologies,” which Congress intended to have substantive effect. See, e.g., Civil Liberties Act of 1988, 102 Stat. 903, 50 U.S. C. App. §1989 (2000 ed.) (acknowledging and apologizing “for the evacuation, relocation and internment” of Japanese citizens during World War II and providing $20,000 in restitution to each eligible individual); Radiation Exposure Compensation Act, 104 Stat. 920, notes following 42 U.S. C. §2210 (2000 ed. and Supp. V) (“apolo giz[ing] on behalf of the Nation . . . for the hardships” endured by those exposed to radiation from above-ground nuclear testing facilities and providing $100,000 in compensation to each eligible individual). Cite as: 556 U. S. ____ (2009) 9 Opinion of the Court The Apology Resolution’s second and final substantive provision is a disclaimer, which provides: “Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.” §3. By its terms, §3 speaks only to those who may or may not have “claims against the United States.” The court below, however, held that the only way to save §3 from superfluity is to construe it as a congressional recognition—and preserva tion—of claims against Hawaii and as “the foundation (or starting point) for reconciliation” between the State and native Hawaiians. 117 Haw., at 192, 177 P. 3d, at 902. “We must have regard to all the words used by Con gress, and as far as possible give effect to them,” Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467, 475 (1911), but that maxim is not a judicial license to turn an irrele vant statutory provision into a relevant one. And we know of no justification for turning an express disclaimer of claims against one sovereign into an affirmative recogni tion of claims against another.4 Cf. Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. ___, ___ —————— 4 The court below held that respondents “prevailed on the merits” by showing that “Congress has clearly recognized that the native Hawai ian people have unrelinquished claims over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations.” 117 Haw., at 212, 177 P.3d, at 922. And it further held that petitioners failed to show that the State has the “power to sell ceded lands pursuant to the terms of the Admission Act.” Id., at 211, 177 P. 3d, at 921 (internal quotation marks and alterations omitted). Respondents now insist, however, that their claims are “nonjusticiable” to the extent that they are grounded on “broader moral and political” bases. Brief for Respondents 18. No matter how respon dents characterize their claims, it is undeniable that they have asserted title to the ceded lands throughout this litigation, see id., at 40, n. 15 (conceding the point), and it is undeniable that the Supreme Court of Hawaii relied on those claims in issuing an injunction, which is a legal (and hence justiciable) remedy—not a moral, political, or nonjusticiable one. 10 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court (2009) (slip op., at 17) (“Two wrong claims do not make one that is right”). The Supreme Court of Hawaii erred in reading §3 as recognizing claims inconsistent with the title held in “absolute fee” by the United States (30 Stat. 750) and conveyed to the State of Hawaii at statehood. See supra, at 2–3. B Rather than focusing on the operative words of the law, the court below directed its attention to the 37 “whereas” clauses that preface the Apology Resolution. See 107 Stat. 1510–1513. “Based on a plain reading of” the “whereas” clauses, the Supreme Court of Hawaii held that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands.” 117 Haw., at 191, 177 P.3d, at 901. That conclusion is wrong for at least three reasons. First, “whereas” clauses like those in the Apology Reso lution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation . . . , a court has no license to make it do what it was not designed to do.” District of Columbia v. Heller, 554 U. S. ___, ___, n. 3 (2008) (slip op., at 4, n. 3). See also Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U.S. 174, 188 (1889) (“[A]s the preamble is no part of the act, and cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous, the necessity of resorting to it to assist in ascertaining the true intent and meaning of the legislature is in itself fatal to the claim set up”). Second, even if the “whereas” clauses had some legal effect, they did not “chang[e] the legal landscape and restructur[e] the rights and obligations of the State.” 117 Haw., at 190, 177 P. 3d, at 900. As we have emphasized, Cite as: 556 U. S. ____ (2009) 11 Opinion of the Court “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (internal quotation marks omitted). The Apology Resolution reveals no indication—much less a “clear and manifest” one—that Congress intended to amend or repeal the State’s rights and obligations under Admission Act (or any other federal law); nor does the Apology Resolution reveal any evidence that Congress intended sub silentio to “cloud” the title that the United States held in “absolute fee” and transferred to the State in 1959. On that score, we find it telling that even respondent OHA has now abandoned its argument, made below, that “Congress . . . enacted the Apology Reso lution and thus . . . change[d]” the Admission Act. App. 114a; see also Tr. of Oral Arg. 31, 37–38. Third, the Apology Resolution would raise grave consti tutional concerns if it purported to “cloud” Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that “Congress cannot, after statehood, reserve or convey sub merged lands that have already been bestowed upon a State.” Idaho v. United States, 533 U.S. 262, 280, n. 9 (2001) (internal quotation marks and alteration omitted); see also id., at 284 (Rehnquist, C. J., dissenting) (“[T]he consequences of admission are instantaneous, and it ig nores the uniquely sovereign character of that event . . . to suggest that subsequent events somehow can diminish what has already been bestowed”). And that proposition applies a fortiori where virtually all of the State’s public lands—not just its submerged ones—are at stake. In light of those concerns, we must not read the Apology Resolu tion’s nonsubstantive “whereas” clauses to create a retro active “cloud” on the title that Congress granted to the State of Hawaii in 1959. See, e.g., Clark v. Martinez, 543 U.S. 371, 381–382 (2005) (the canon of constitutional 12 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court avoidance “is a tool for choosing between competing plau sible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”). * * * When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Re spondents 18. But we have no authority to decide ques tions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judg ment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered

This case presents the question whether Congress stripped the State of Hawaii of its authority to alienate its sovereign territory by passing a joint resolution to apolo gize for the role that the United States played in over throwing the Hawaiian monarchy in the late 19th century. Relying on Congress’ joint resolution, the Supreme Court of Hawaii permanently enjoined the State from alienating certain of its lands, pending resolution of native Hawai ians’ land claims that the court described as “unrelin quished.” We reverse. I A In 1893, “[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.” “That government sought annexation by the United States,” 05, which the United States granted, see Joint Resolu tion to Provide for Annexing the Hawaiian Islands to the 2 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court United States, No. 55, (hereinafter Newlands Resolution). Pursuant to the Newlands Resolution, the Republic of Hawaii “cede[d] absolutely and without re serve to the United States of America all rights of sover eignty of whatsoever kind” and further “cede[d] and trans fer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining” (hereinafter ceded lands).1 The Newlands Resolution further provided that all “prop erty and rights” in the ceded lands “are vested in the United States of America.” Two years later, Congress established a government for the Territory of Hawaii. See Act of Apr. 30, 0, ch. 339, The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in “absolute fee” under that resolution. See The Organic Act further provided: “[T]he portion of the public domain heretofore known as Crown land is hereby declared to have been, on [the effective date of the Newlands Resolution], and prior thereto, the property of the Hawaiian government, and to be free and clear from any trust of or concern ing the same, and from all claim of any nature what soever, upon the rents, issues, and profits thereof. It shall be subject to alienation and other uses as may be provided by law.” ; see also at 159. —————— 1 “Crown lands” were lands formerly held by the Hawaiian monarchy. “Public” and “Government” lands were other lands held by the Hawai ian government. Cite as: 556 U. S. (2009) 3 Opinion of the Court In 1959, Congress admitted Hawaii to the Union. See Pub. L. 86–3, Under the Admission Act, with exceptions not relevant here, “the United States grant[ed] to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all the public lands and other public prop erty within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” These lands, “together with the proceeds from the sale or other disposi tion of [these] lands and the income therefrom, shall be held by [the] State as a public trust” to promote various public purposes, including supporting public education, bettering conditions of Native Hawaiians, developing home ownership, making public improvements, and pro viding lands for public use. Hawaii state law also authorizes the State to use or sell the ceded lands, provided that the proceeds are held in trust for the benefit of the citizens of Hawaii. See, e.g., Haw. Rev. Stat. 171–18 (1993). In 1993, Congress enacted a joint resolution “to ac knowledge the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the United Church of Christ with Native ” Joint Resolution to Ac knowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103–150, 1513 (hereinafter Apology Resolution). In a series of the preambular “whereas” clauses, Congress made various observations about Hawaii’s history. For example, the Apology Resolution states that “the indige nous Hawaiian people never directly relinquished their claims over their national lands to the United States” and that “the health and well-being of the Native Hawai ian people is intrinsically tied to their deep feelings and 4 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court attachment to the land.” In the same vein, the resolution’s only substantive section—entitled “Ac knowledgement and Apology”—states that Congress: “(1) acknowledges the historical significance of this event which resulted in the suppression of the in herent sovereignty of the Native Hawaiian people; “(2) recognizes and commends efforts of reconcilia tion initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians; “(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the par ticipation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination; “(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Ha waii, in order to provide a proper foundation for rec onciliation between the United States and the Native Hawaiian people; and “(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation ef forts between the United States and the Native Ha waiian people.” Finally, of the Apology Resolution states that “Nothing in this Joint Resolution is intended to serve as a settle ment of any claims against the United States.” at 1514. B This suit involves a tract of former crown land on Maui, now known as the “Leiali’i parcel,” that was ceded in “absolute fee” to the United States at annexation and has been held by the State since 1959 as part of the trust Cite as: 556 U. S. (2009) 5 Opinion of the Court established by of the Admission Act. The Housing Finance and Development Corporation (HFDC)—Hawaii’s affordable housing agency—received approval to remove the Leiali’i parcel from the trust and redevelop it. In order to transfer the Leiali’i parcel out of the public trust, HFDC was required to compensate respondent Office of Hawaiian Affairs (OHA), which was established to receive and manage funds from the use or sale of the ceded lands for the benefit of native Haw. Const., Art. XII, In this case, however, OHA demanded more than mone tary compensation. Relying on the Apology Resolution, respondent OHA demanded that HFDC include a dis claimer preserving any native Hawaiian claims to owner ship of lands transferred from the public trust for redevel opment. HFDC declined to include the requested disclaimer because “to do so would place a cloud on title, rendering title insurance unavailable.” App. to Pet. for Cert. 207a. Again relying on the Apology Resolution, respondents then sued the State, its Governor, HFDC (since renamed), and its officials. Respondents sought “to enjoin the defen dants from selling or otherwise transferring the Leiali’i parcel to third parties and selling or otherwise transfer ring to third parties any of the ceded lands in general until a determination of the native Hawaiians’ claims to the ceded lands is made.” Office of Hawaiian Respondents “alleged that an injunction was proper because, in light of the Apology Resolution, any transfer of ceded lands by the State to third-parties would amount to a breach of trust” The state trial court entered judgment against respon dents, but the Supreme Court of Hawaii vacated the lower court’s ruling. Relying on a “plain reading of the Apology 6 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court Resolution,” which “dictate[d]” its conclusion, the State Supreme Court ordered “an injunction against the defendants from selling or other wise transferring to third parties (1) the Leiali’i parcel and (2) any other ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands have been resolved,” In doing so, the court rejected petitioners’ argument that “the State has the undoubted and explicit power to sell ceded lands pursuant to the terms of the Admission Act and pursuant to state law.” (internal quo tation marks and alterations omitted). We granted certio rari. 555 U. S. II Before turning to the merits, we first must address our jurisdiction. According to respondents, the Supreme Court of Hawaii “merely held that, in light of the ongoing recon ciliation process, the sale of ceded lands would constitute a breach of the State’s fiduciary duty to Native Hawaiians under state law.” Brief for Respondents 17. Because respondents believe that this case does not raise a federal question, they urge us to dismiss for lack of jurisdiction. Although respondents dwell at length on that argument, see at 19–34, we need not tarry long to reject it. This Court has jurisdiction whenever “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” 463 U.S. 1032, –1041 Far from providing a “plain statement” that its decision rested on state law, at 1041, the State Supreme Court plainly held that its deci sion was “dictate[d]” by federal law—in particular, the Apology Resolution, see 117 Haw., 177 P. 3d, at 922. Indeed, the court explained that the Apology Resolu Cite as: 556 U. S. (2009) 7 Opinion of the Court tion lies “[a]t the heart of [respondents’] claims,” that respondents’ “current claim for injunctive relief is based largely upon the Apology Resolution,” and that respondents’ arguments presuppose that the Apology Resolution “changed the legal landscape and restructured the rights and obligations of the State.” at 189–, 177 P. 3d, at –900 (internal quotation marks omitted). The court noted that “[t]he primary question before this court on appeal is whether, in light of the Apology Resolu tion, this court should issue an injunction” against sale of the trust lands, and it con cluded, “[b]ased on a plain reading” of the Apology Resolu tion, that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands,” Based on these and the remainder of the State Supreme Court’s 77 references to the Apology Resolution, we have no doubt that the decision below rested on federal law.2 We are therefore satisfied that this Court has jurisdiction. See 28 U.S. C. III Turning to the merits, we must decide whether the Apology Resolution “strips Hawaii of its sovereign author ity to sell, exchange, or transfer” (Pet. for Cert. i) the lands —————— 2 Respondents argue that the Supreme Court of Hawaii relied on the Apology Resolution “simply to support its factual determination that Native Hawaiians have unresolved claims to the ceded lands.” Brief for Respondents 21. Regardless of its factual determinations, however, the lower court’s legal conclusions were, at the very least, “interwoven with the federal law.” See Office of Hawaiian 217, (“hold[ing]” that respondents’ legal claim “arose” only when “the Apol ogy Resolution was signed into law on November 23, 1993”); n. n. (emphasizing that “our holding is grounded in Hawai‘i and federal law”). See also n. 4, infra. 8 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court that the United States held in “absolute fee” () and “grant[ed] to the State of Hawaii, effective upon its admission into the Union” (). We conclude that the Apology Resolution has no such effect. A “We begin, as always, with the text of the statute.” Permanent Mission of India to United The Apology Resolu tion contains two substantive provisions. See 107 Stat. 1513–1514. Neither justifies the judgment below. The resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifi cally, Congress “acknowledge[d] the historical signifi cance” of the Hawaiian monarchy’s overthrow, “recog nize[d] and commend[ed] efforts of reconciliation” with native Hawaiians, “apologize[d] to [n]ative Hawaiians” for the monarchy’s overthrow, “expresse[d] [Congress’s] com mitment to acknowledge the ramifications of the over throw,” and “urge[d] the President of the United States to also acknowledge the ramifications of the overthrow” Such terms are not the kind that Congress uses to create substantive rights—especially those that are en forceable against the cosovereign States. See, e.g., Penn hurst State School and Hospital v. Halderman, 451 U.S. 1, 17–18 (1981).3 —————— 3 TheApology Resolution’s operative provisions thus stand in sharp contrast with those of other “apologies,” which Congress intended to have substantive effect. See, e.g., Civil Liberties Act of 1988, 102 Stat. 903, 50 U.S. C. App. (2000 ed.) (acknowledging and apologizing “for the evacuation, relocation and internment” of Japanese citizens during World War II and providing $20,000 in restitution to each eligible individual); Radiation Exposure Compensation Act, 104 Stat. 920, notes following 42 U.S. C. §2 (2000 ed. and Supp. V) (“apolo giz[ing] on behalf of the Nation for the hardships” endured by those exposed to radiation from above-ground nuclear testing facilities and providing $100,000 in compensation to each eligible individual). Cite as: 556 U. S. (2009) 9 Opinion of the Court The Apology Resolution’s second and final substantive provision is a disclaimer, which provides: “Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.” By its terms, speaks only to those who may or may not have “claims against the United States.” The court below, however, held that the only way to save from superfluity is to construe it as a congressional recognition—and preserva tion—of claims against Hawaii and as “the foundation (or starting point) for reconciliation” between the State and native “We must have regard to all the words used by Con gress, and as far as possible give effect to them,” Louisville & Nashville R. (1), but that maxim is not a judicial license to turn an irrele vant statutory provision into a relevant one. And we know of no justification for turning an express disclaimer of claims against one sovereign into an affirmative recogni tion of claims against another.4 Cf. Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. —————— 4 The court below held that respondents “prevailed on the merits” by showing that “Congress has clearly recognized that the native Hawai ian people have unrelinquished claims over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations.” 117 Haw., And it further held that petitioners failed to show that the State has the “power to sell ceded lands pursuant to the terms of the Admission Act.” (internal quotation marks and alterations omitted). Respondents now insist, however, that their claims are “nonjusticiable” to the extent that they are grounded on “broader moral and political” bases. Brief for Respondents 18. No matter how respon dents characterize their claims, it is undeniable that they have asserted title to the ceded lands throughout this litigation, see (conceding the point), and it is undeniable that the Supreme Court of Hawaii relied on those claims in issuing an injunction, which is a legal (and hence justiciable) remedy—not a moral, political, or nonjusticiable one. 10 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court (2009) (slip op., at 17) (“Two wrong claims do not make one that is right”). The Supreme Court of Hawaii erred in reading as recognizing claims inconsistent with the title held in “absolute fee” by the United States () and conveyed to the State of Hawaii at statehood. See at 2–3. B Rather than focusing on the operative words of the law, the court below directed its attention to the 37 “whereas” clauses that preface the Apology Resolution. See 107 Stat. 1510–1513. “Based on a plain reading of” the “whereas” clauses, the Supreme Court of Hawaii held that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands.” 117 Haw., That conclusion is wrong for at least three reasons. First, “whereas” clauses like those in the Apology Reso lution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation a court has no license to make it do what it was not designed to do.” District of Columbia v. Heller, 554 U. S. n. 3 (slip op., at 4, n. 3). See also Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U.S. 174, (9) (“[A]s the preamble is no part of the act, and cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous, the necessity of resorting to it to assist in ascertaining the true intent and meaning of the legislature is in itself fatal to the claim set up”). Second, even if the “whereas” clauses had some legal effect, they did not “chang[e] the legal landscape and restructur[e] the rights and obligations of the State.” 117 Haw., at As we have emphasized, Cite as: 556 U. S. (2009) 11 Opinion of the Court “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” National Assn. of Home Builders v. Defenders of Wildlife, (internal quotation marks omitted). The Apology Resolution reveals no indication—much less a “clear and manifest” one—that Congress intended to amend or repeal the State’s rights and obligations under Admission Act (or any other federal law); nor does the Apology Resolution reveal any evidence that Congress intended sub silentio to “cloud” the title that the United States held in “absolute fee” and transferred to the State in 1959. On that score, we find it telling that even respondent OHA has now abandoned its argument, made below, that “Congress enacted the Apology Reso lution and thus change[d]” the Admission Act. App. 114a; see also Tr. of Oral Arg. 31, 37–38. Third, the Apology Resolution would raise grave consti tutional concerns if it purported to “cloud” Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that “Congress cannot, after statehood, reserve or convey sub merged lands that have already been bestowed upon a State.” (2001) (internal quotation marks and alteration omitted); see also (“[T]he consequences of admission are instantaneous, and it ig nores the uniquely sovereign character of that event to suggest that subsequent events somehow can diminish what has already been bestowed”). And that proposition applies a fortiori where virtually all of the State’s public lands—not just its submerged ones—are at stake. In light of those concerns, we must not read the Apology Resolu tion’s nonsubstantive “whereas” clauses to create a retro active “cloud” on the title that Congress granted to the State of Hawaii in 1959. See, e.g., Clark v. Martinez, 543 U.S. 371, 381–382 (2005) (the canon of constitutional 12 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court avoidance “is a tool for choosing between competing plau sible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”). * * * When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Re spondents 18. But we have no authority to decide ques tions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judg ment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered

Justice Thomas

majority

Susan B. Anthony List v. Driehaus

2014-06-16

https://www.courtlistener.com/opinion/2678466/susan-b-anthony-list-v-driehaus/

https://www.courtlistener.com/api/rest/v3/clusters/2678466/

2013-060

Petitioners in this case seek to challenge an Ohio stat- ute that prohibits certain “false statements” during the course of a political campaign. The question in this case is whether their preenforcement challenge to that law is justiciable—and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have. I The Ohio statute at issue prohibits certain “false state- ment[s]” “during the course of any campaign for nomina- tion or election to public office or office of a political party.” Ohio Rev. Code Ann. §3517.21(B) (Lexis 2013). As rele- vant here, the statute makes it a crime for any person to “[m]ake a false statement concerning the voting record of a candidate or public official,” §3517.21(B)(9), or to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether 2 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court it was false or not,” §3517.21(B)(10).1 “[A]ny person” acting on personal knowledge may file a complaint with the Ohio Elections Commission (or Com- mission) alleging a violation of the false statement statute. §3517.153(A) (Lexis Supp. 2014). If filed within 60 days of a primary election or 90 days of a general election, the complaint is referred to a panel of at least three Commis- sion members. §§3517.156(A), (B)(1) (Lexis 2013). The panel must then hold an expedited hearing, generally within two business days, §3517.156(B)(1), to determine whether there is probable cause to believe the alleged violation occurred, §3517.156(C). Upon a finding of proba- ble cause, the full Commission must, within 10 days, hold a hearing on the complaint. §3517.156(C)(2); see also Ohio Admin. Code §3517–1–10(E) (2008). The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev. Code Ann. §3517.153(B) (Lexis Supp. 2014). At the full hearing, the parties may make opening and closing state- ments and present evidence. Ohio Admin. Code §§3517– 1–11(B)(2)(c), (d), (g). If the Commission determines by “clear and convincing evidence” that a party has violated —————— 1 Section 3517.21(B) provides in relevant part: “No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of cam- paign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press re- lease, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following: . . . . . “(9) Make a false statement concerning the voting record of a candi- date or public official; “(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Cite as: 573 U. S. ____ (2014) 3 Opinion of the Court the false statement law, the Commission “shall” refer the matter to the relevant county prosecutor. Ohio Rev. Code Ann. §§3517.155(D)(1)–(2) (Lexis Supp. 2014). Alterna- tively, the Commission’s regulations state that it may simply issue a reprimand. See Ohio Admin. Code §3517– 1–14(D). Violation of the false statement statute is a first- degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev. Code Ann. §§3599.40 (Lexis 2013), 3517.992(V) (Lexis Supp. 2014). A second conviction under the false state- ment statute is a fourth-degree felony that carries a man- datory penalty of disfranchisement. §3599.39. II Petitioner Susan B. Anthony List (SBA) is a “pro-life advocacy organization.” 525 Fed. Appx. 415, 416 (CA6 2013). During the 2010 election cycle, SBA publicly criti- cized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to “educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion.” App. 49–50. The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus’ district condemning that vote. The planned billboard would have read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Id., at 37. The advertising company that owned the billboard space re- fused to display that message, however, after Driehaus’ counsel threatened legal action. On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated §§3517.21(B)(9) and (10) by falsely 4 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court stating that he had voted for “taxpayer-funded abortion.”2 Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA’s communications with allied organizations, political party committees, and Members of Congress and their staffs. On October 18, 2010—after the panel’s probable-cause determination, but before the scheduled Commission hearing—SBA filed suit in Federal District Court, seek- ing declaratory and injunctive relief on the ground that §§3517.21(B)(9) and (10) violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action under Younger v. Harris, 401 U.S. 37 (1971), pending completion of the Commission proceedings. The Sixth Circuit denied SBA’s motion for an injunction pending appeal. Driehaus and SBA eventually agreed to postpone the full Commission hearing until after the election. When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA’s consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As —————— 2 The dispute about the falsity of SBA’s speech concerns two different provisions of the ACA: (1) the subsidy to assist lower income individ- uals in paying insurance premiums, and (2) the direct appropriation of federal money for certain health programs such as community health centers. See Brief for Petitioners 4–5. Cite as: 573 U. S. ____ (2014) 5 Opinion of the Court relevant here, the amended complaint alleged that Ohio Rev. Code Ann. §§3517.21(B)(9) and (10) are unconstitu- tional both facially and as applied. Specifically, the com- plaint alleged that SBA’s speech about Driehaus had been chilled; that SBA “intends to engage in substantially similar activity in the future”; and that it “face[d] the prospect of its speech and associational rights again being chilled and burdened,” because “[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself.” App. 121–122. The District Court consolidated SBA’s suit with a sepa- rate suit brought by petitioner Coalition Opposed to Ad- ditional Spending and Taxes (COAST), an advocacy orga- nization that also alleged that the same Ohio false statement provisions are unconstitutional both facially and as applied.3 According to its amended complaint, COAST intended to disseminate a mass e-mail and other materials criticizing Driehaus’ vote for the ACA as a vote “to fund abortions with tax dollars,” but refrained from doing so because of the Commission proceedings against SBA. Id., at 146, 148, 162. COAST further alleged that it “desires to make the same or similar statements about other federal candidates who voted for” the ACA, but that fear “of finding itself subject to the same fate” as SBA has deterred it from doing so. Id., at 149, 157.4 —————— 3 Petitioners also challenged a related “disclaimer provision,” App. 126–127, 156–157, under Ohio Rev. Code Ann. §3517.20, and COAST raised pre-emption and due process claims. Reply Brief 21, n. 7. Petitioners do not pursue their “disclaimer,” pre-emption, or due process claims before us. Ibid. We also need not address SBA’s sepa- rate challenge to the Commission’s investigatory procedures; petition- ers have conceded that the procedures claim stands or falls with the substantive prohibition on false statements. Ibid.; see Tr. of Oral Arg. 19. Finally, the parties agree that petitioners’ as-applied claims “are better read as facial objections to Ohio’s law.” Reply Brief 19. Accord- ingly, we do not separately address the as-applied claims. 4 SBA named Driehaus, the Commission’s members and its staff at- 6 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court The District Court dismissed both suits as non- justiciable, concluding that neither suit presented a suffi- ciently concrete injury for purposes of standing or ripe- ness. The Sixth Circuit affirmed on ripeness grounds. 525 Fed. Appx. 415. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied. Regarding the first factor, the Sixth Circuit concluded that SBA’s prior injuries—the probable-cause determina- tion and the billboard rejection—“do not help it show an imminent threat of future prosecution,” particularly where “the Commission never found that SBA . . . violated Ohio’s false-statement law.” Id., at 420. The court further rea- soned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that “it plans to lie or recklessly disregard the veracity of its speech” in the future, but rather maintains that the statements it in- tends to make are factually true. Id., at 422. As for the remaining factors, the court concluded that the factual record was insufficiently developed with re- spect to the content of SBA’s future speech, and that with- holding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit —————— torney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. COAST named the Commission, the Commission’s members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. All named defendants are respondents here. Cite as: 573 U. S. ____ (2014) 7 Opinion of the Court therefore determined that SBA’s suit was not ripe for review, and that its analysis as to SBA compelled the same conclusion with respect to COAST. We granted certiorari, 571 U. S. ___ (2014), and now reverse. III A Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U. S. Const., Art. III, §2. The doctrine of standing gives mean- ing to these constitutional limits by “identify[ing] those disputes which are appropriately resolved through the judicial process.”5 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___, (2013) (slip op., at 9). To establish Article III standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a favorable decision.” Lujan, supra, at 560–561 (internal quotation marks omitted). This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a “personal stake in the outcome of the controversy.” Warth v. Seldin, 422 —————— 5 The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U.S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U.S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion. 8 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court U. S. 490, 498 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not ‘conjec- tural’ or ‘hypothetical.’ ” Lujan, supra, at 560 (some inter- nal question marks omitted). An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “ ‘substantial risk’ that the harm will occur.” Clapper, 568 U. S., at ___, ___, n. 5 (slip op., at 10, 15, n. 5) (emphasis deleted and internal quotation marks omitted). “ ‘ The party invoking federal jurisdiction bears the burden of establishing’ standing.” Id., at ___ (slip op., at 12). “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the bur- den of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, supra, at 561. B One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); see also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–129 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose him- self to liability before bringing suit to challenge the basis for the threat”). Instead, we have permitted pre- enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact Cite as: 573 U. S. ____ (2014) 9 Opinion of the Court requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979). Several of our cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent with Article III. In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing hand- bills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a de- claratory judgment that the trespass statute was uncon- stitutional as applied to him. We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop hand- billing and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his compan- ion’s prosecution showed that his “concern with arrest” was not “ ‘ chimerical.’ ” 415 U.S., at 459. Under those circumstances, we said, “it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Ibid. In Babbitt, we considered a preenforcement challenge to a statute that made it an unfair labor practice to encour- age consumers to boycott an “agricultural product . . . by the use of dishonest, untruthful and deceptive publicity.’ ” 442 U.S., at 301. The plaintiffs contended that the law “unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals.” Ibid. Building on Steffel, we explained that a plaintiff could bring a preenforcement suit when he “has alleged an intention to engage in a course of conduct arguably af- 10 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court fected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbit, supra, at 298. We found those cir- cumstances present in Babbitt. In that case, the law “on its face proscribe[d] dishonest, untruthful, and deceptive publicity.” 442 U.S., at 302. The plaintiffs had “actively engaged in consumer publicity campaigns in the past” and alleged “an intention to continue” those campaigns in the future. Id., at 301. And although they did not “plan to propagate untruths,” they argued that “ ‘ erroneous state- ment is inevitable in free debate.’ ” Ibid. We concluded that the plaintiffs’ fear of prosecution was not “imaginary or wholly speculative,” and that their challenge to the consumer publicity provision presented an Article III case or controversy. Id., at 302. Two other cases bear mention. In Virginia v. American Booksellers Assn. Inc., 484 U.S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to “ ‘knowingly display for commercial purpose’ ” material that is “ ‘harmful to juveniles’ ” as defined by the statute. Id., at 386. At trial, the booksellers introduced 16 books they believed were cov- ered by the statute and testified that costly compliance measures would be necessary to avoid prosecution for displaying such books. Just as in Babbitt and Steffel, we determined that the “pre-enforcement nature” of the suit was not “troubl[ing]” because the plaintiffs had “alleged an actual and well-founded fear that the law will be enforced against them.” 484 U.S., at 393. Finally, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), we considered a preenforcement challenge to a law that criminalized “ ‘ knowingly provid[ing] mate- rial support or resources to a foreign terrorist organiza- tion.’ ” Id., at 8. The plaintiffs claimed that they had provided support to groups designated as terrorist organi- zations prior to the law’s enactment and would provide Cite as: 573 U. S. ____ (2014) 11 Opinion of the Court similar support in the future. The Government had charged 150 persons with violating the law and declined to disavow prosecution if the plaintiffs resumed their support of the designated organizations. We held that the claims were justiciable: The plaintiffs faced a “ ‘credible threat’ ” of enforcement and “ ‘should not be required to await and undergo a criminal prosecution as the sole means of seek- ing relief.’ ” Id., at 15. IV Here, SBA and COAST contend that the threat of en- forcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have al- leged a credible threat of enforcement. See Babbitt, 442 U.S., at 298. A First, petitioners have alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Ibid. Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported “taxpayer-funded abortion,” and it has alleged an “inten[t] to engage in substantially similar activity in the future.” App. 49–50, 122. See also Human- itarian Law Project, supra, at 15–16 (observing that plain- tiffs had previously provided support to groups designated as terrorist organizations and alleged they “would provide similar support [to the same terrorist organizations] again if the statute’s allegedly unconstitutional bar were lifted”). COAST has alleged that it previously intended to dissemi- nate materials criticizing a vote for the ACA as a vote “to fund abortions with tax dollars,” and that it “desires to make the same or similar statements about other federal candidates who voted for [the ACA].” App. 146, 149, 162. Because petitioners’ intended future conduct concerns 12 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court political speech, it is certainly “affected with a constitu- tional interest.” Babbitt, supra, at 298; see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (“[T]he consti- tutional guarantee has its fullest and most urgent applica- tion precisely to the conduct of campaigns for political office”). B Next, petitioners’ intended future conduct is “argua- bly. . . proscribed by [the] statute” they wish to challenge. Babbitt, supra, at 298. The Ohio false statement law sweeps broadly, see supra, at 1–2, and n. 1., and covers the subject matter of petitioners’ intended speech. Both SBA and COAST have alleged an intent to “[m]ake” statements “concerning the voting record of a candidate or public official,” §3517.21(B)(9), and to “disseminate” statements “concerning a candidate . . . to promote the election, nomination, or defeat of the candidate,” §3517.21(B)(10). And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported “taxpayer-funded abortion”—the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that peti- tioners’ intended speech is “arguably proscribed” by the law. Respondents incorrectly rely on Golden v. Zwickler, 394 U.S. 103 (1969). In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particular Congressman who had since left office. Id., at 104–106, and n. 2. The Court dismissed the plaintiff ’s challenge to the electoral leafletting ban as nonjusticiable because his “sole concern was literature relating to the Congressman and his record,” and “it was most unlikely that the Con- gressman would again be a candidate.” Id., at 109 (em- phasis added). Under those circumstances, any threat of Cite as: 573 U. S. ____ (2014) 13 Opinion of the Court future prosecution was “wholly conjectural.” Ibid. Here, by contrast, petitioners’ speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. See Reply Brief 4–5 (identify- ing other elected officials who plan to seek reelection as potential objects of SBA’s criticisms). Because petitioners’ alleged future speech is not directed exclusively at Driehaus, it does not matter whether he “may run for office again.” Brief for Respondents 33 (internal quotation marks omitted). As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio’s false statement statute. Respondents, echoing the Sixth Circuit, contend that SBA’s fears of enforcement are misplaced because SBA has not said it “ ‘plans to lie or recklessly disregard the veracity of its speech.’ ” Id., at 15 (quoting 525 Fed. Appx., at 422). The Sixth Circuit reasoned that because SBA “can only be liable for making a statement ‘knowing’ it is false,” SBA’s insistence that its speech is factually true “makes the possibility of prosecution for uttering such statements exceedingly slim.” Id., at 422. The Sixth Circuit misses the point. SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceed- ings, notwithstanding SBA’s belief in the truth of its alle- gations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law. See, e.g., Babbitt, 442 U.S., at 301 (case was justiciable even though plaintiffs disavowed any intent to “propagate untruths”). 14 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court C Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not “ ‘ chimeri- cal.’ ” Steffel, 415 U.S., at 459; cf. Clapper, 568 U. S., at ___ (slip op., at 12) (plaintiffs’ theory of standing was “substantially undermine[d]” by their “fail[ure] to offer any evidence that their communications ha[d] been moni- tored” under the challenged statute). Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA’s speech violated the false statement statute. Indeed future com- plainants may well “invoke the prior probable-cause find- ing to prove that SBA knowingly lied.” Brief for Petition- ers 32. The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows “any person” with knowledge of the purported violation to file a complaint. §3517.153(A). Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents. See Brief for Michael DeWine, Attorney General of Ohio, as Amicus Curiae 8 (hereinafter DeWine Brief); see also id., at 6 (noting that “the Commission has no system for weed- ing out frivolous complaints”). And petitioners, who in- tend to criticize candidates for political office, are easy targets. Finally, Commission proceedings are not a rare occur- rence. Petitioners inform us that the Commission “ ‘han- dles about 20 to 80 false statement complaints per year,’ ” Cite as: 573 U. S. ____ (2014) 15 Opinion of the Court Brief for Petitioners 46, and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Cf. Humani- tarian Law Project, 561 U.S., at 16 (noting that there had been numerous prior prosecutions under the challenged statute). Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. See Tr. of Oral Arg. 29–30; see also Humanitarian Law Project, supra, at 16 (“The Government has not ar- gued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do”). In fact, the spec- ter of enforcement is so substantial that the owner of the billboard refused to display SBA’s message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from “imag- inary or speculative.” Babbitt, supra, at 298. We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre- enforcement review. See Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 625–626, n. 1 (1986) (“If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not”). The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement.” DeWine Brief 7. “[C]omplainants may time their submis- sions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant elec- tion.” Id., at 14–15. Moreover, the target of a false state- ment complaint may be forced to divert significant time 16 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court and resources to hire legal counsel and respond to discov- ery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelec- tion probable-cause finding, “such a determination itself may be viewed [by the electorate] as a sanction by the State.” Id., at 13. Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case. See Babbitt, supra, at 302, n. 13 (In addition to the threat of criminal sanctions, “the prospect of issuance of an ad- ministrative cease-and-desist order or a court-ordered injunction against such prohibited conduct provides sub- stantial additional support for the conclusion that appel- lees’ challenge . . . is justiciable” (citations omitted)). That conclusion holds true as to both SBA and COAST. Respondents, relying on Younger v. Harris, 401 U.S. 37 (1971), appear to suggest that COAST lacks standing because it refrained from actually disseminating its planned speech in order to avoid Commission proceedings of its own. See Brief for Respondents 26–27, 34. In Younger, the plaintiff had been indicted for distributing leaflets in violation of the California Criminal Syndicalism Act. When he challenged the constitutionality of the law in federal court, several other plaintiffs intervened, argu- ing that their own speech was inhibited by Harris’ prose- cution. The Court concluded that only the plaintiff had standing because the intervenors “d[id] not claim that they ha[d] ever been threatened with prosecution, that a prosecution [wa]s likely, or even that a prosecution [wa]s remotely possible.” 401 U.S., at 42. That is not this case. Unlike the intervenors in Younger, Cite as: 573 U. S. ____ (2014) 17 Opinion of the Court COAST has alleged an intent to engage in the same speech that was the subject of a prior enforcement pro- ceeding. Also unlike the intervenors in Younger, who had never been threatened with prosecution, COAST has been the subject of Commission proceedings in the past. See, e.g., COAST Candidates PAC v. Ohio Elections Comm’n, 543 Fed. Appx. 490 (CA6 2013). COAST is far more akin to the plaintiff in Steffel, who was not arrested alongside his handbilling companion but was nevertheless threat- ened with prosecution for similar speech. 415 U.S., at 459. In sum, we find that both SBA and COAST have alleged a credible threat of enforcement. V In concluding that petitioners’ claims were not justicia- ble, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently devel- oped, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings. 525 Fed. Appx., at 419. Respondents contend that these “prudential ripeness” factors confirm that the claims at issue are nonjusticiable. Brief for Respondents 17. But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners’ claims nonjusticiable “on grounds that are ‘prudential,’ rather than constitutional,” “[t]hat request is in some tension with our recent reaffir- mation of the principle that ‘a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging.’ ” Lexmark Int’l, Inc. v. Static Control Compo- nents, Inc., 572 U. S. ___, ___ (2014) (slip op., at 6) (quot- ing Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) (slip op., at 6); some internal quotation marks omitted). In any event, we need not resolve the continuing vitality 18 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court of the prudential ripeness doctrine in this case because the “fitness” and “hardship” factors are easily satisfied here. First, petitioners’ challenge to the Ohio false statement statute presents an issue that is “purely legal, and will not be clarified by further factual development.” Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 581 (1985). And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other. * * * Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Ap- peals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met. It is so ordered

Petitioners in this case seek to challenge an Ohio stat- ute that prohibits certain “false statements” during the course of a political campaign. The question in this case is whether their preenforcement challenge to that law is justiciable—and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have. I The Ohio statute at issue prohibits certain “false state- ment[s]” “during the course of any campaign for nomina- tion or election to public office or office of a political party.” (B) As rele- vant here, the statute makes it a crime for any person to “[m]ake a false statement concerning the voting record of a candidate or public official,” or to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether 2 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court it was false or not,” “[A]ny person” acting on personal knowledge may file a complaint with the Ohio Elections Commission (or Com- mission) alleging a violation of the false statement statute. (Lexis Supp. 2014). If filed within 60 days of a primary election or 90 days of a general election, the complaint is referred to a panel of at least three Commis- sion members. (B)(1) The panel must then hold an expedited hearing, generally within two business days, to determine whether there is probable cause to believe the alleged violation occurred, Upon a finding of proba- ble cause, the full Commission must, within 10 days, hold a hearing on the complaint. see also Ohio Admin. Code (2008). The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev. Code Ann. (Lexis Supp. 2014). At the full hearing, the parties may make opening and closing state- ments and present evidence. Ohio Admin. Code 1–11(B)(2)(c), (d), (g). If the Commission determines by “clear and convincing evidence” that a party has violated —————— 1 Section 3517.21(B) provides in relevant part: “No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of cam- paign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press re- lease, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following: “(9) Make a false statement concerning the voting record of a candi- date or public official; “(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Cite as: 573 U. S. (2014) 3 Opinion of the Court the false statement law, the Commission “shall” refer the matter to the relevant county prosecutor. Ohio Rev. Code Ann. (Lexis Supp. 2014). Alterna- tively, the Commission’s regulations state that it may simply issue a reprimand. See Ohio Admin. Code 1–14(D). Violation of the false statement statute is a first- degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev. Code Ann. 3517.992(V) (Lexis Supp. 2014). A second conviction under the false state- ment statute is a fourth-degree felony that carries a man- datory penalty of disfranchisement. II Petitioner Susan B. Anthony List (SBA) is a “pro-life advocacy organization.” During the 2010 election cycle, SBA publicly criti- cized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to “educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion.” App. 49–50. The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus’ district condemning that vote. The planned billboard would have read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The advertising company that owned the billboard space re- fused to display that message, however, after Driehaus’ counsel threatened legal action. On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated and (10) by falsely 4 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court stating that he had voted for “taxpayer-funded abortion.”2 Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA’s communications with allied organizations, political party committees, and Members of Congress and their staffs. On October 18, 2010—after the panel’s probable-cause determination, but before the scheduled Commission hearing—SBA filed suit in Federal District Court, seek- ing declaratory and injunctive relief on the ground that and (10) violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action under pending completion of the Commission proceedings. The Sixth Circuit denied SBA’s motion for an injunction pending appeal. Driehaus and SBA eventually agreed to postpone the full Commission hearing until after the election. When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA’s consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As —————— 2 The dispute about the falsity of SBA’s speech concerns two different provisions of the ACA: (1) the subsidy to assist lower income individ- uals in paying insurance premiums, and (2) the direct appropriation of federal money for certain health programs such as community health centers. See Brief for Petitioners 4–5. Cite as: 573 U. S. (2014) 5 Opinion of the Court relevant here, the amended complaint alleged that Ohio Rev. Code Ann. and (10) are unconstitu- tional both facially and as applied. Specifically, the com- plaint alleged that SBA’s speech about Driehaus had been chilled; that SBA “intends to engage in substantially similar activity in the future”; and that it “face[d] the prospect of its speech and associational rights again being chilled and burdened,” because “[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself.” App. 121–122. The District Court consolidated SBA’s suit with a sepa- rate suit brought by petitioner Coalition Opposed to Ad- ditional Spending and Taxes (COAST), an advocacy orga- nization that also alleged that the same Ohio false statement provisions are unconstitutional both facially and as applied.3 According to its amended complaint, COAST intended to disseminate a mass e-mail and other materials criticizing Driehaus’ vote for the ACA as a vote “to fund abortions with tax dollars,” but refrained from doing so because of the Commission proceedings against SBA. COAST further alleged that it “desires to make the same or similar statements about other federal candidates who voted for” the ACA, but that fear “of finding itself subject to the same fate” as SBA has deterred it from doing so.4 —————— 3 Petitioners also challenged a related “disclaimer provision,” App. 126–127, 156–157, under and COAST raised pre-emption and due process claims. Reply Brief 21, n. 7. Petitioners do not pursue their “disclaimer,” pre-emption, or due process claims before us. We also need not address SBA’s sepa- rate challenge to the Commission’s investigatory procedures; petition- ers have conceded that the procedures claim stands or falls with the substantive prohibition on false statements. ; see Tr. of Oral Arg. 19. Finally, the parties agree that petitioners’ as-applied claims “are better read as facial objections to Ohio’s law.” Reply Brief 19. Accord- ingly, we do not separately address the as-applied claims. 4 SBA named Driehaus, the Commission’s members and its staff at- 6 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court The District Court dismissed both suits as non- justiciable, concluding that neither suit presented a suffi- ciently concrete injury for purposes of standing or ripe- ness. The Sixth Circuit affirmed on ripeness grounds. 525 Fed. Appx. 415. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied. Regarding the first factor, the Sixth Circuit concluded that SBA’s prior injuries—the probable-cause determina- tion and the billboard rejection—“do not help it show an imminent threat of future prosecution,” particularly where “the Commission never found that SBA violated Ohio’s false-statement law.” The court further rea- soned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that “it plans to lie or recklessly disregard the veracity of its speech” in the future, but rather maintains that the statements it in- tends to make are factually true. As for the remaining factors, the court concluded that the factual record was insufficiently developed with re- spect to the content of SBA’s future speech, and that with- holding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit —————— torney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. COAST named the Commission, the Commission’s members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. All named defendants are respondents here. Cite as: 573 U. S. (2014) 7 Opinion of the Court therefore determined that SBA’s suit was not ripe for review, and that its analysis as to SBA compelled the same conclusion with respect to COAST. We granted certiorari, 571 U. S. (2014), and now reverse. III A Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U. S. Const., Art. III, The doctrine of standing gives mean- ing to these constitutional limits by “identify[ing] those disputes which are appropriately resolved through the judicial process.”5 v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U. S. (slip op., at 9). To establish Article III standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a favorable decision.” –561 (internal quotation marks omitted). This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a “personal stake in the outcome of the controversy.” Warth v. Seldin, 422 —————— 5 The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, ; see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 392 and n. 11 we use the term “standing” in this opinion. 8 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court U. S. 490, 498 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not ‘conjec- tural’ or ‘hypothetical.’ ” (some inter- nal question marks omitted). An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “ ‘substantial risk’ that the harm will occur.” Clapper, 568 U. S., at n. 5 (slip op., at 10, 15, n. 5) (emphasis deleted and internal quotation marks omitted). “ ‘ The party invoking federal jurisdiction bears the burden of establishing’ standing.” at (slip op., at 12). “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the bur- den of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” B One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See v. (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); see also MedImmune, 128–129 (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose him- self to liability before bringing suit to challenge the basis for the threat”). Instead, we have permitted pre- enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact Cite as: 573 U. S. (2014) 9 Opinion of the Court requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” t v. Farm Workers, Several of our cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent with Article III. In for example, police officers threatened to arrest petitioner and his companion for distributing hand- bills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a de- claratory judgment that the trespass statute was uncon- stitutional as applied to him. We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop hand- billing and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his compan- ion’s prosecution showed that his “concern with arrest” was not “ ‘ chimerical.’ ” Under those circumstances, we said, “it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” In t, we considered a preenforcement challenge to a statute that made it an unfair labor practice to encour- age consumers to boycott an “agricultural product by the use of dishonest, untruthful and deceptive publicity.’ ” The plaintiffs contended that the law “unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals.” Building on we explained that a plaintiff could bring a preenforcement suit when he “has alleged an intention to engage in a course of conduct arguably af- 10 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court fected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” at We found those cir- cumstances present in t. In that case, the law “on its face proscribe[d] dishonest, untruthful, and deceptive publicity.” The plaintiffs had “actively engaged in consumer publicity campaigns in the past” and alleged “an intention to continue” those campaigns in the future. And although they did not “plan to propagate untruths,” they argued that “ ‘ erroneous state- ment is inevitable in free debate.’ ” We concluded that the plaintiffs’ fear of prosecution was not “imaginary or wholly speculative,” and that their challenge to the consumer publicity provision presented an Article III case or controversy. Two other cases bear mention. In we held that booksellers could seek preenforcement review of a law making it a crime to “ ‘knowingly display for commercial purpose’ ” material that is “ ‘harmful to juveniles’ ” as defined by the statute. At trial, the booksellers introduced 16 books they believed were cov- ered by the statute and testified that costly compliance measures would be necessary to avoid prosecution for displaying such books. Just as in t and we determined that the “pre-enforcement nature” of the suit was not “troubl[ing]” because the plaintiffs had “alleged an actual and well-founded fear that the law will be enforced against them.” Finally, in Holder v. Humanitarian Law 561 U.S. 1 (2010), we considered a preenforcement challenge to a law that criminalized “ ‘ knowingly provid[ing] mate- rial support or resources to a foreign terrorist organiza- tion.’ ” The plaintiffs claimed that they had provided support to groups designated as terrorist organi- zations prior to the law’s enactment and would provide Cite as: 573 U. S. (2014) 11 Opinion of the Court similar support in the future. The Government had charged 150 persons with violating the law and declined to disavow prosecution if the plaintiffs resumed their support of the designated organizations. We held that the claims were justiciable: The plaintiffs faced a “ ‘credible threat’ ” of enforcement and “ ‘should not be required to await and undergo a criminal prosecution as the sole means of seek- ing relief.’ ” IV Here, SBA and COAST contend that the threat of en- forcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have al- leged a credible threat of enforcement. See t, 442 U.S., at A First, petitioners have alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported “taxpayer-funded abortion,” and it has alleged an “inten[t] to engage in substantially similar activity in the future.” App. 49–50, 122. See also Human- itarian Law –16 (observing that plain- tiffs had previously provided support to groups designated as terrorist organizations and alleged they “would provide similar support [to the same terrorist organizations] again if the statute’s allegedly unconstitutional bar were lifted”). COAST has alleged that it previously intended to dissemi- nate materials criticizing a vote for the ACA as a vote “to fund abortions with tax dollars,” and that it “desires to make the same or similar statements about other federal candidates who voted for [the ACA].” App. 146, 149, 162. Because petitioners’ intended future conduct concerns 12 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court political speech, it is certainly “affected with a constitu- tional interest.” t, at ; see also Monitor Patriot (“[T]he consti- tutional guarantee has its fullest and most urgent applica- tion precisely to the conduct of campaigns for political office”). B Next, petitioners’ intended future conduct is “argua- bly. proscribed by [the] statute” they wish to challenge. t, at The Ohio false statement law sweeps broadly, see at 1–2, and n. 1., and covers the subject matter of petitioners’ intended speech. Both SBA and COAST have alleged an intent to “[m]ake” statements “concerning the voting record of a candidate or public official,” and to “disseminate” statements “concerning a candidate to promote the election, nomination, or defeat of the candidate,” And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported “taxpayer-funded abortion”—the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that peti- tioners’ intended speech is “arguably proscribed” by the law. Respondents incorrectly rely on Golden v. Zwickler, 394 U.S. 103 (1969). In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particular Congressman who had since left office. at 104–106, and n. 2. The Court dismissed the plaintiff ’s challenge to the electoral leafletting ban as nonjusticiable because his “sole concern was literature relating to the Congressman and his record,” and “it was most unlikely that the Con- gressman would again be a candidate.” (em- phasis added). Under those circumstances, any threat of Cite as: 573 U. S. (2014) 13 Opinion of the Court future prosecution was “wholly conjectural.” Here, by contrast, petitioners’ speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. See Reply Brief 4–5 (identify- ing other elected officials who plan to seek reelection as potential objects of SBA’s criticisms). Because petitioners’ alleged future speech is not directed exclusively at Driehaus, it does not matter whether he “may run for office again.” Brief for Respondents 33 (internal quotation marks omitted). As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio’s false statement statute. Respondents, echoing the Sixth Circuit, contend that SBA’s fears of enforcement are misplaced because SBA has not said it “ ‘plans to lie or recklessly disregard the veracity of its speech.’ ” (quoting 525 Fed. Appx., ). The Sixth Circuit reasoned that because SBA “can only be liable for making a statement ‘knowing’ it is false,” SBA’s insistence that its speech is factually true “makes the possibility of prosecution for uttering such statements exceedingly slim.” The Sixth Circuit misses the point. SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceed- ings, notwithstanding SBA’s belief in the truth of its alle- gations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law. See, e.g., t, (case was justiciable even though plaintiffs disavowed any intent to “propagate untruths”). 14 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court C Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not “ ‘ chimeri- cal.’ ” ; cf. Clapper, 568 U. S., at (slip op., at 12) (plaintiffs’ theory of standing was “substantially undermine[d]” by their “fail[ure] to offer any evidence that their communications ha[d] been moni- tored” under the challenged statute). Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA’s speech violated the false statement statute. Indeed future com- plainants may well “invoke the prior probable-cause find- ing to prove that SBA knowingly lied.” Brief for Petition- ers 32. The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows “any person” with knowledge of the purported violation to file a complaint. Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents. See Brief for Michael DeWine, Attorney General of Ohio, as Amicus Curiae 8 (hereinafter DeWine Brief); see also at 6 (noting that “the Commission has no system for weed- ing out frivolous complaints”). And petitioners, who in- tend to criticize candidates for political office, are easy targets. Finally, Commission proceedings are not a rare occur- rence. Petitioners inform us that the Commission “ ‘han- dles about 20 to 80 false statement complaints per year,’ ” Cite as: 573 U. S. (2014) 15 Opinion of the Court Brief for Petitioners 46, and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Cf. Humani- tarian Law (noting that there had been numerous prior prosecutions under the challenged statute). Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. See Tr. of Oral Arg. 29–30; see also Humanitarian Law (“The Government has not ar- gued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do”). In fact, the spec- ter of enforcement is so substantial that the owner of the billboard refused to display SBA’s message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from “imag- inary or speculative.” t, at We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre- enforcement review. See Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 625–626, n. 1 (1986) (“If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not”). The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant to gain a campaign advantage without ever having to prove the falsity of a statement.” DeWine Brief 7. “[C]omplainants may time their submis- sions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant elec- tion.” at 14–15. Moreover, the target of a false state- ment complaint may be forced to divert significant time 16 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court and resources to hire legal counsel and respond to discov- ery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelec- tion probable-cause finding, “such a determination itself may be viewed [by the electorate] as a sanction by the State.” Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case. See t, n. 13 (In addition to the threat of criminal sanctions, “the prospect of issuance of an ad- ministrative cease-and-desist order or a court-ordered injunction against such prohibited conduct provides sub- stantial additional support for the conclusion that appel- lees’ challenge is justiciable” (citations omitted)). That conclusion holds true as to both SBA and COAST. Respondents, relying on appear to suggest that COAST lacks standing because it refrained from actually disseminating its planned speech in order to avoid Commission proceedings of its own. See Brief for Respondents 26–27, 34. In Younger, the plaintiff had been indicted for distributing leaflets in violation of the California Criminal Syndicalism Act. When he challenged the constitutionality of the law in federal court, several other plaintiffs intervened, argu- ing that their own speech was inhibited by Harris’ prose- cution. The Court concluded that only the plaintiff had standing because the intervenors “d[id] not claim that they ha[d] ever been threatened with prosecution, that a prosecution [wa]s likely, or even that a prosecution [wa]s remotely possible.” That is not this case. Unlike the intervenors in Younger, Cite as: 573 U. S. (2014) 17 Opinion of the Court COAST has alleged an intent to engage in the same speech that was the subject of a prior enforcement pro- ceeding. Also unlike the intervenors in Younger, who had never been threatened with prosecution, COAST has been the subject of Commission proceedings in the past. See, e.g., COAST Candidates COAST is far more akin to the plaintiff in who was not arrested alongside his handbilling companion but was nevertheless threat- ened with prosecution for similar speech. 415 U.S., at 459. In sum, we find that both SBA and COAST have alleged a credible threat of enforcement. V In concluding that petitioners’ claims were not justicia- ble, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently devel- oped, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings. Respondents contend that these “prudential ripeness” factors confirm that the claims at issue are nonjusticiable. Brief for Respondents 17. But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners’ claims nonjusticiable “on grounds that are ‘prudential,’ rather than constitutional,” “[t]hat request is in some tension with our recent reaffir- mation of the principle that ‘a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging.’ ” Lexmark Int’l, Inc. v. Static Control Compo- nents, Inc., 572 U. S. (2014) (slip op., at 6) (slip op., at 6); some internal quotation marks omitted). In any event, we need not resolve the continuing vitality 18 SUSAN B. ANTHONY LIST v. DRIEHAUS Opinion of the Court of the prudential ripeness doctrine in this case because the “fitness” and “hardship” factors are easily satisfied here. First, petitioners’ challenge to the Ohio false statement statute presents an issue that is “purely legal, and will not be clarified by further factual development.” Thomas v. Union Carbide Agricultural Products Co., 581 (1985). And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other. * * * Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Ap- peals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met. It is so ordered

Justice Breyer

majority

Rehaif v. United States

2019-06-24

https://www.courtlistener.com/opinion/4632236/rehaif-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4632236/

A federal statute, 18 U.S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess fire- arms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid. A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.) The question here concerns the scope of the word “know- ingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the rele- vant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a de- fendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. 2 REHAIF v. UNITED STATES Opinion of the Court I Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be termi- nated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither. Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of §922(g) and §924(a)(2). At the close of Rehaif ’s trial, the judge instructed the jury (over Rehaif ’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omit- ted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment. Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif ’s conviction. See 888 F.3d 1138, 1148 (2018). The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Gov- ernment to establish a defendant’s knowledge of his status in the analogous context of felon-in-possession prosecu- tions. Id., at 1145–1146. We granted certiorari to consider whether, in prosecu- tions under §922(g) and §924(a)(2), the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse. Cite as: 588 U. S. ____ (2019) 3 Opinion of the Court II Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See Staples v. United States, 511 U.S. 600, 605 (1994). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994); see also Morissette v. United States, 342 U.S. 246, 256–258 (1952). We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014). We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statu- tory text. See Staples, 511 U.S., at 606. But the pre- sumption applies with equal or greater force when Con- gress includes a general scienter provision in the statute itself. See ALI, Model Penal Code §2.02(4), p. 22 (1985) (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distin- guishing among the material elements thereof, such provi- sion shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”). A Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statu- tory text supports the presumption. The text of §924(a)(2) says that “[w]hoever knowingly violates” certain subsec- tions of §922, including §922(g), “shall be” subject to penal- 4 REHAIF v. UNITED STATES Opinion of the Court ties of up to 10 years’ imprisonment. The text of §922(g) in turn provides that it “shall be unlawful for any person . . . , being an alien . . . illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” in §924(a)(2) modifies the verb “violates” and its direct object, which in this case is §922(g). The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” §922(g). With some here-irrelevant omis- sions, §922(g) makes possession of a firearm or ammuni- tion unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien . . . ille- gally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “fire- arm or ammunition”). No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional ele- ments do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defend- ant’s conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch, 578 U. S. ___, ___– ___ (2016) (slip op., at 15–16). Because jurisdictional elements normally have nothing to do with the wrongful- ness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. See id., at ___ (slip op., at 16). Jurisdictional element aside, however, the text of §922(g) simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘know- ingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also id., at 652 (we “ordinarily read a Cite as: 588 U. S. ____ (2019) 5 Opinion of the Court phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See id., at 659 (ALITO, J., concurring in part). And everyone agrees that the word “knowingly” applies to §922(g)’s possession ele- ment, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second §922(g) element but not the first. See United States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring). To the contrary, we think that by specify- ing that a defendant may be convicted only if he “knowingly violates” §922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of §922(g). B Beyond the text, our reading of §922(g) and §924(a)(2) is consistent with a basic principle that underlies the crimi- nal law, namely, the importance of showing what Black- stone called “a vicious will.” 4 W. Blackstone, Commen- taries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is crimi- nal only if inflicted knowingly “is as universal and persis- tent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the nor- mal individual to choose between good and evil.” Moris- sette, 342 U.S., at 250. Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement Video, 513 U.S., at 72–73, n. 3. The cases in which we have emphasized scienter’s im- portance in separating wrongful from innocent acts are 6 REHAIF v. UNITED STATES Opinion of the Court legion. See, e.g., id., at 70; Staples, 511 U.S., at 610; Liparota v. United States, 471 U.S. 419, 425 (1985); United States v. Bailey, 444 U.S. 394, 406, n. 6 (1980); United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978); Morissette, 342 U.S., at 250–251. We have inter- preted statutes to include a scienter requirement even where the statutory text is silent on the question. See Staples, 511 U.S., at 605. And we have interpreted stat- utes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement Video, 513 U.S., at 70. Applying the word “knowingly” to the defendant’s status in §922(g) helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See Staples, 511 U.S., at 611. It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”). We have sometimes declined to read a scienter require- ment into criminal statutes. See United States v. Balint, 258 U.S. 250, 254 (1922). But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regula- tory” or “public welfare” program and carry only minor penalties. See Staples, 511 U.S., at 606; Morissette, 342 U.S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Video, 513 U.S., at 72. Hence, this exception to the presumption Cite as: 588 U. S. ____ (2019) 7 Opinion of the Court in favor of scienter does not apply. III The Government’s arguments to the contrary do not convince us that Congress sought to depart from the nor- mal presumption in favor of scienter. The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U.S. C. §1924(a). Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U.S. C. §861(a)(2). A third applies to a “parent [or] legal guardian” who al- lows his child to be used for child pornography. 18 U.S. C. §2251(b). We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful con- duct. X-Citement Video, 513 U.S., at 73. But in the stat- utes cited by the Government, the conduct prohibited— misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the de- fendant’s status. This difference assures us that the presumption in favor of scienter applies here even assum- ing the Government is right that these other statutes do not require knowledge of status. Nor do we believe that Congress would have expected defendants under §922(g) and §924(a)(2) to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to 8 REHAIF v. UNITED STATES Opinion of the Court an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his un- lawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punish- able by imprisonment for a term exceeding one year.” §922(g)(1) (emphasis added); see also Games-Perez, 667 F.3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See Staples, 511 U.S., at 615, n. 11 (“knowledge can be inferred from circumstantial evidence”). The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. Cheek v. United States, 498 U.S. 192, 199 (1991). This maxim, however, normally applies where a defend- ant has the requisite mental state in respect to the ele- ments of the crime but claims to be “unaware of the exist- ence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of law is a defense if the mistake negates the “knowledge . . . required to establish a material element of the offense”). Cite as: 588 U. S. ____ (2019) 9 Opinion of the Court Much of the confusion surrounding the ignorance-of-the- law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law §5.1(d), at 585. We applied this distinction in Liparota, where we con- sidered a statute that imposed criminal liability on “who- ever knowingly uses, transfers, acquires, alters, or pos- sesses” food stamps “in any manner not authorized by the statute or the regulations.” 471 U.S., at 420 (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.” Id., at 425, n. 9. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law. See ibid. This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commenta- tors refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlaw- fully in the United States” does not have the guilty state of mind that the statute’s language and purposes require. The Government finally turns for support to the statu- tory and legislative history. Congress first enacted a crimi- nal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, 52 Stat. 1250. In 1968, Congress added new cate- gories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, 82 Stat. 197. Then, in 1986, Congress passed the statute at issue here, the Fire- arms Owners’ Protection Act, 100 Stat. 449, note following 18 U.S. C. §921, which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition “knowingly” may be 10 REHAIF v. UNITED STATES Opinion of the Court held criminally liable. The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant’s status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that “same language,” courts should presume that Congress intended to ratify the judi- cial consensus. Helsinn Healthcare S. A. v. Teva Pharma- ceuticals USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 7). Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g., United States v. Pruner, 606 F.2d 871, 874 (CA9 1979). But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant “may not be aware of the fact” that barred him from possessing a firearm. United States v. Renner, 496 F.2d 922, 926 (1974). And the Fourth Circuit had found that knowledge of a defendant’s status was not needed because the statute “[b]y its terms” did not require knowledge of status. United States v. Williams, 588 F.2d 92 (1978) (per curiam). This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986—without any explicit scienter provision. But Con- gress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession “knowingly.” This addition, which would serve no apparent purpose under the Government’s view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute. Cite as: 588 U. S. ____ (2019) 11 Opinion of the Court The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove “that the defendant’s conduct was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em- phasis added). Although this statement speaks of “con- duct” rather than “status,” context suggests that the Re- port may have meant the former to include the latter. In any event, other statements suggest that the word “know- ingly” was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude “individuals who lack all criminal intent and knowledge,” without distinguishing between conduct and status. S. Rep. No. 97–476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in “severe penalties for unintentional mis- steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch). Thus, assuming without deciding that statutory or legislative history could overcome the longstanding pre- sumption in favor of scienter, that history here is at best inconclusive. * * * The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA, 587 U. S. ___, ___ (2019) (slip op., at 10) (citing Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005)). We conclude that in a prosecution under 18 U.S. C. §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must 12 REHAIF v. UNITED STATES Opinion of the Court prove to establish a defendant’s knowledge of status in respect to other §922(g) provisions not at issue here. See post, at 13–15 (ALITO, J., dissenting) (discussing other statuses listed in §922(g) not at issue here). We accordingly reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. ____ (2019) 13 Opinion Appendix of the of to opinion Court the Court APPENDIX 18 U.S. C. §924(a)(2) “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S. C. §922(g) “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any con- trolled substance . . . ; “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien—(A) is illegally or unlawfully in the United States; or (B) . . . has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonorable conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual no- tice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such per- son or child of such intimate partner or person, or engag- ing in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate 14 REHAIF v. UNITED STATES Appendix to opinion of the Court partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reason- ably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misde- meanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammuni- tion; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Cite as: 588 U. S. ____ (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–9560 _________________ HAMID MOHAMED AHMED ALI REHAIF, PETITIONER v.

A federal statute, 18 U.S. C. provides that “[i]t shall be unlawful” for certain individuals to possess fire- arms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” A separate provision, adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.) The question here concerns the scope of the word “know- ingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the rele- vant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a de- fendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. 2 REHAIF v. UNITED STATES Opinion of the Court I Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be termi- nated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither. Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of and At the close of Rehaif ’s trial, the judge instructed the jury (over Rehaif ’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omit- ted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment. Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif ’s conviction. See The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Gov- ernment to establish a defendant’s knowledge of his status in the analogous context of felon-in-possession prosecu- tions. at 1145–1146. We granted certiorari to consider whether, in prosecu- tions under and the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse. Cite as: 588 U. S. (2019) 3 Opinion of the Court II Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See v. United States, 511 U.S. 600, 605 (4). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Inc., 513 U.S. 64, 72 (4); see also We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014). We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statu- tory text. See But the pre- sumption applies with equal or greater force when Con- gress includes a general scienter provision in the statute itself. See ALI, Model Penal Code p. 22 (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distin- guishing among the material elements thereof, such provi- sion shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”). A Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statu- tory text supports the presumption. The text of says that “[w]hoever knowingly violates” certain subsec- tions of including “shall be” subject to penal- 4 REHAIF v. UNITED STATES Opinion of the Court ties of up to 10 years’ imprisonment. The text of in turn provides that it “shall be unlawful for any person being an alien illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” in modifies the verb “violates” and its direct object, which in this case is The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” With some here-irrelevant omis- sions, makes possession of a firearm or ammuni- tion unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien ille- gally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “fire- arm or ammunition”). No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional ele- ments do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defend- ant’s conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch, 578 U. S. – (2016) (slip op., at 15–16). Because jurisdictional elements normally have nothing to do with the wrongful- ness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. See at (slip op., at 16). Jurisdictional element aside, however, the text of simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘know- ingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also (we “ordinarily read a Cite as: 588 U. S. (2019) 5 Opinion of the Court phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See (ALITO, J., concurring in part). And everyone agrees that the word “knowingly” applies to ’s possession ele- ment, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second element but not the first. See United States v. Games-Perez, (Gorsuch, J., concurring). To the contrary, we think that by specify- ing that a defendant may be convicted only if he “knowingly violates” Congress intended to require the Government to establish that the defendant knew he violated the material elements of B Beyond the text, our reading of and is consistent with a basic principle that underlies the crimi- nal law, namely, the importance of showing what Black- stone called “a vicious will.” 4 W. Blackstone, Commen- taries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is crimi- nal only if inflicted knowingly “is as universal and persis- tent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the nor- mal individual to choose between good and evil.” Moris- Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement 513 U.S., at 72–73, n. 3. The cases in which we have emphasized scienter’s im- portance in separating wrongful from innocent acts are 6 REHAIF v. UNITED STATES Opinion of the Court legion. See, e.g., ; ; ; United ; United (1978); Moris, –251. We have inter- preted statutes to include a scienter requirement even where the statutory text is silent on the question. See And we have interpreted stat- utes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement 513 U.S., Applying the word “knowingly” to the defendant’s status in helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”). We have sometimes declined to read a scienter require- ment into criminal statutes. See United But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regula- tory” or “public welfare” program and carry only minor penalties. See ; Moris, 342 U.S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Hence, this exception to the presumption Cite as: 588 U. S. (2019) 7 Opinion of the Court in favor of scienter does not apply. III The Government’s arguments to the contrary do not convince us that Congress sought to depart from the nor- mal presumption in favor of scienter. The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U.S. C. Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U.S. C. A third applies to a “parent [or] legal guardian” who al- lows his child to be used for child pornography. 18 U.S. C. We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful con- duct. X-Citement But in the stat- utes cited by the Government, the conduct prohibited— misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the de- fendant’s status. This difference assures us that the presumption in favor of scienter applies here even assum- ing the Government is right that these other statutes do not require knowledge of status. Nor do we believe that Congress would have expected defendants under and to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to 8 REHAIF v. UNITED STATES Opinion of the Court an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his un- lawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punish- able by imprisonment for a term exceeding one year.” (1) (emphasis added); see also Games-Perez, 667 F.3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See n. 11 (“knowledge can be inferred from circumstantial evidence”). The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. This maxim, however, normally applies where a defend- ant has the requisite mental state in respect to the ele- ments of the crime but claims to be “unaware of the exist- ence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. ; see also Model Penal Code at 27 (a mistake of law is a defense if the mistake negates the “knowledge required to establish a material element of the offense”). Cite as: 588 U. S. (2019) 9 Opinion of the Court Much of the confusion surrounding the ignorance-of-the- law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law at 585. We applied this distinction in Liparota, where we con- sidered a statute that imposed criminal liability on “who- ever knowingly uses, transfers, acquires, alters, or pos- sesses” food stamps “in any manner not authorized by the statute or the regulations.” (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.” at n. 9. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law. See This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commenta- tors refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlaw- fully in the United States” does not have the guilty state of mind that the statute’s language and purposes require. The Government finally turns for support to the statu- tory and legislative history. Congress first enacted a crimi- nal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, In 1968, Congress added new cate- gories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, Then, in 1986, Congress passed the statute at issue here, the Fire- arms Owners’ Protection Act, note following 18 U.S. C. which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition “knowingly” may be 10 REHAIF v. UNITED STATES Opinion of the Court held criminally liable. The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant’s status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that “same language,” courts should presume that Congress intended to ratify the judi- cial consensus. Helsinn Healthcare S. A. v. Teva Pharma- ceuticals USA, Inc., 586 U. S. (2019) (slip op., at 7). Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g., United States v. Pruner, But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant “may not be aware of the fact” that barred him from possessing a firearm. United States v. Renner, And the Fourth Circuit had found that knowledge of a defendant’s status was not needed because the statute “[b]y its terms” did not require knowledge of status. United States v. Williams, 588 F.2d 92 (1978) (per curiam). This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986—without any explicit scienter provision. But Con- gress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession “knowingly.” This addition, which would serve no apparent purpose under the Government’s view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute. Cite as: 588 U. S. (2019) 11 Opinion of the Court The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove “that the defendant’s conduct was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em- phasis added). Although this statement speaks of “con- duct” rather than “status,” context suggests that the Re- port may have meant the former to include the latter. In any event, other statements suggest that the word “know- ingly” was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude “individuals who lack all criminal intent and knowledge,” without distinguishing between conduct and status. S. Rep. No. 97–476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in “severe penalties for unintentional mis- steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch). Thus, assuming without deciding that statutory or legislative history could overcome the longstanding pre- sumption in favor of scienter, that history here is at best inconclusive. * * * The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA, 587 U. S. (2019) (slip op., at 10) ). We conclude that in a prosecution under 18 U.S. C. and the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must 12 REHAIF v. UNITED STATES Opinion of the Court prove to establish a defendant’s knowledge of status in respect to other provisions not at issue here. See post, at 13–15 (ALITO, J., dissenting) (discussing other statuses listed in not at issue here). We accordingly reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. (2019) 13 Opinion Appendix of the of to opinion Court the Court APPENDIX 18 U.S. C. “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S. C. “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any con- trolled substance ; “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien—(A) is illegally or unlawfully in the United States; or (B) has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonorable conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual no- tice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such per- son or child of such intimate partner or person, or engag- ing in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate 14 REHAIF v. UNITED STATES Appendix to opinion of the Court partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reason- ably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misde- meanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammuni- tion; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Cite as: 588 U. S. (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–9560 HAMID MOHAMED AHMED ALI REHAIF, PETITIONER v.

Justice Alito

dissenting

Rehaif v. United States

2019-06-24

https://www.courtlistener.com/opinion/4632236/rehaif-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4632236/

The Court casually overturns the long-established in- terpretation of an important criminal statute, 18 U.S. C. §922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with re- spect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of 2 REHAIF v. UNITED STATES ALITO, J., dissenting harmless-error review. See ante, at 11. If today’s decision were compelled by the text of §922(g) or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today’s decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of §922(g) had worked any serious injustice. The push for us to grant review was based on the super- ficially appealing but ultimately fallacious argument that the text of §922(g) dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today’s decision, while casting aside the established inter- pretation of §922(g), does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent. And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor. I The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this peti- tioner’s claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of “an alien who was brought into the United States un- lawfully as a small child and was therefore unaware of his unlawful status.” Ante, at 8. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up. Here is what really happened. Petitioner, a citizen of Cite as: 588 U. S. ____ (2019) 3 ALITO, J., dissenting the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. 888 F.3d 1138, 1140 (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4–5. After he was condi- tionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not ap- peal. The school sent him e-mails informing him that he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be termi- nated. 888 F.3d, at 1140–1141. Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that peti- tioner claimed to have weapons in his room. Arrested and charged under §922(g) for possession of a firearm by an illegal alien, petitioner claimed at trial that the Govern- ment had to prove beyond a reasonable doubt that he actually knew that his lawful status had been terminated. Following what was then the universal and long- established interpretation of §922(g), the District Court rejected this argument, and a jury found him guilty. 888 F.3d, at 1141. The Eleventh Circuit affirmed. Id., at 1140. Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student. 4 REHAIF v. UNITED STATES ALITO, J., dissenting II A Petitioner claims that the texts of §922(g) and a com- panion provision, 18 U.S. C. §924(a)(2), dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows: “Whoever knowingly violates subsection . . . (g) of sec- tion 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both.” (Emphasis added.) Section 922(g), in turn, makes it unlawful for nine cate- gories of persons to engage in certain interstate- commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U. S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misde- meanor crime of domestic violence.1 Persons falling into —————— 1 Title 18 U.S. C. §922(g) provides as follows: “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. §802)); “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien— “(A) is illegally or unlawfully in the United States; or “(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in Cite as: 588 U. S. ____ (2019) 5 ALITO, J., dissenting these categories are forbidden, as relevant here, to “pos- sess in or affecting commerce, any firearm.” Petitioner argues that, when §924(a)(2) and §922(g) are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enu- merated categories. But this purportedly textual argu- ment requires some moves that cannot be justified on the basis of the statutory text. Petitioner’s argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival. Petitioner begins by extracting the term “knowingly” from §924(a)(2). He then transplants it into the beginning of §922(g), ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because “know- ingly” appears at the beginning of the enumeration of the —————— section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C. §1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonor- able conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 6 REHAIF v. UNITED STATES ALITO, J., dissenting elements of the §922(g) offense, we must assume that it modifies the first of those elements, i.e., being a convicted felon, illegal alien, etc. To conclude otherwise, he con- tends, is to commit the sin of having the term “knowingly” leap over that element and then land conveniently in front of the second. Pet. for Cert. 8. But petitioner’s reading is guilty of the very sort of leaping that it condemns—and then some. It has “know- ingly” performed a jump of Olympian proportions, taking off from §924(a)(2), sailing backward over more than 9,000 words in the U. S. Code, and then landing—conveniently— at the beginning of the enumeration of the elements of the §922(g) offense. Of course, there is no logical reason why this jump has to land at that particular point in §922(g). That is petitioner’s first sleight of hand. But there is another. What petitioner and those who have pressed this leap- ing argument want §922(g) to say is essentially this: Who- ever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant’s status as an illegal alien must actually be known to him. That is es- sentially what we held in Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009). But when the term “knowingly” is excised from §924(a)(2) and inserted at the beginning of §922(g), what we get is something quite different: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien—is illegally or unlawfully in the United States . . . to possess in or affecting commerce, any firearm or ammunition . . . . Congress did not—and certainly would not—enact a statute that reads like that. To convert this garbled con- glomeration into intelligible prose, editing is obviously Cite as: 588 U. S. ____ (2019) 7 ALITO, J., dissenting needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating §924(a)(1) and §922(g) that minimizes the changes in the language of the two provisions: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien—is illegally or unlawfully in the United States . . . and possesses in or affecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] The most natural reading of this version is that the de- fendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien’s possession of the firearm or ammunition must be knowing—even though everyone agrees that this is required. Here are two other possibilities that require more changes. The first is this: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien who—is illegally or un- lawfully in the United States . . . to possesses in or af- fecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] The second, which differs from the first only in that the clause “who is illegally or unlawfully in the United States” is set off by commas, is this: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien, who—is illegally or un- lawfully in the United States, . . . to possesses in or affecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] A strict grammarian, noting that the clause “who is legally or unlawfully in the United States” is restrictive in the 8 REHAIF v. UNITED STATES ALITO, J., dissenting first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these ver- sions, it is again unclear whether a defendant’s possession of the firearm or ammunition must be knowing. All of the versions discussed so far place the term “knowingly” at the beginning of our transformed version of §922(g), but as noted, there is no reason why this term’s leap from §924(a)(2) must land at that point. So our new version of §922(g) could just as logically read like this: Whoever . . . It is unlawful for any person . . . who, being an alien who—is illegally or unlawfully in the United States . . . to knowingly possesses in or af- fecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] That would make it clear that the long-established inter- pretation of §922(g) is correct. What these possibilities show is that any attempt to combine the relevant language from §924(a)(2) with the language of §922(g) necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If §§922(g) and 924(a)(2) are arbitrarily combined in the way that peti- tioner prefers, then, presto chango, they support petition- er’s interpretation. What a magic trick! B The truth behind the illusion is that the terms used in §§924(a)(2) and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways. First, the language of §§924(a)(2) and 922(g) can be read to require that a defendant know that his conduct is a violation of §922(g). In ordinary speech, to knowingly Cite as: 588 U. S. ____ (2019) 9 ALITO, J., dissenting violate a rule may mean to violate a known rule. (“He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.”) Neither petitioner nor the Gov- ernment suggests that this is the proper interpretation of §§922(g) and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be “willful.” In ordinary speech, “will- fulness” does not require or even suggest knowledge of illegality. See Webster’s Third New International Dic- tionary 2617 (1976). But we have construed the term as used in statutes to mean the “intentional violation of a known legal duty.” United States v. Bishop, 412 U.S. 346, 360 (1973). Thus, the pointed use of the term “knowingly,” as opposed to “willfully,” in §922(g), provides a ground to infer that Congress did not mean to require knowledge of illegality. Second, a “knowing” violation could require knowledge of every element that makes up the offense. As applied to §922(g), that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien “illegally or unlawfully in the United States,” (2) knew that the thing he “possess[ed]” was “a firearm or ammunition,” and (3) knew that what he did was “in or affecting commerce.” But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate- commerce element of the offense. To reach this conclu- sion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term “knowingly” at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to 10 REHAIF v. UNITED STATES ALITO, J., dissenting the interstate-commerce element just like the others. Once again, the conclusion that “knowingly” does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammu- nition was “in or affecting commerce” is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g., Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 15). But the inference that this is not what Congress intended is in no way com- pelled by the text of §922(g), which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2 Third, a “knowing” violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it incorporated the term “knowingly” into §922(g), would have placed it at the beginning of that provision. As I have explained, there is no textual basis for that assumption. Fourth, a “knowing” violation could require knowledge of the conduct element—the possession of a firearm or ammunition—but not the others. Putting aside the ques- —————— 2 Indeed, the jurisdictional element is listed before the firearm ele- ment of the offense, to which everyone agrees the mens rea requirement applies. The text alone does not explain why the word “knowingly” would “leapfro[g]” over the middle element, which is perhaps why the majority does not adopt the novel “grammatical gravity” canon. United States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring); see also Tr. of Oral Arg. 32. Cite as: 588 U. S. ____ (2019) 11 ALITO, J., dissenting tion of the jurisdictional element, that is how one would naturally read §922(g) if Congress had incorporated the knowledge requirement into §922(g) after the status ele- ment and just before the conduct element. Of course, Congress did not do that—but neither did it place “know- ingly” at the beginning of the list of elements. As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of §922(g) to which the term “know- ingly” applies. And once it is recognized that the statutory text does not specify the mens rea applicable to §922(g)’s status element, there is no reason to assume that what Congress wanted was either a very high mens rea re- quirement (actual knowledge) or no mens rea at all. See infra, at 22. However, if we limit ourselves to those op- tions, as the parties and the majority assume we must, the latter is more likely. C 1 That is so for at least six reasons. First, in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defend- ant’s own status. Nor has petitioner pointed to any stat- ute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has ex- pressly incorporated a mens rea requirement into a provi- sion with an element involving the defendant’s status, it has placed the mens rea requirement after the status element. For example, 18 U.S. C. §2251(b) punishes any “person having custody or control of a minor who know- ingly permits such minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the 12 REHAIF v. UNITED STATES ALITO, J., dissenting issue of a defendant’s status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S. C. §1924(a) punishes an “officer, employee, contrac- tor, or consultant of the United States [who] knowingly removes [classified] documents or materials without au- thority.” And 21 U.S. C. §861(a) prohibits “any person at least eighteen years of age [from] knowingly and inten- tionally . . . receiv[ing] a controlled substance from a per- son under 18 years of age.” So what the majority has done in this case is groundbreaking. Second, there are sound reasons for treating §922(g)’s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satis- fied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U. S. ___; United States v. Yermian, 468 U.S. 63 (1984); United States v. Feola, 420 U.S. 671 (1975). We have never provided a compre- hensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of as- saulting a federal officer in violation of 18 U.S. C. §111, is instructive. Agreeing with the interpretation that had been adopted with “practical unanimity” by the courts of appeals, Feola held that an accused need not be shown to have been aware of his victim’s status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute’s dual objectives of protecting federal officers and preventing the obstruc- tion of law enforcement. 420 U.S., at 679. A similar consideration appears to provide the basis for the conclusion that a §922(g) defendant need not know that his possession of a gun is “in or affecting commerce.” Whether or not conduct satisfies that requirement in- volves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost Cite as: 588 U. S. ____ (2019) 13 ALITO, J., dissenting everyone but students of constitutional law from the stat- ute’s reach; and that would obviously defeat the statute’s objectives. The reason for the rule exempting knowledge of jurisdic- tional elements supports the conclusion that knowledge of §922(g)’s status element is also not required. Whether a defendant falls into one of the §922(g) categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute’s goals. Take the category defined in §922(g)(4), which applies to a person who has been “adjudicated as a mental defective,” a term that is defined by regulation to mean “(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, in- competency, condition, or disease: “(1) Is a danger to himself or to others; or “(2) Lacks the mental capacity to contract or manage his own affairs.” 27 CFR §478.11(a) (2019). Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted §922(g) to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a “danger . . . to others” due to mental illness or incompetency, should he escape the reach of §922(g) because he does not know that a court has so found? Or consider the category defined by §922(g)(8), which applies to a person “who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had 14 REHAIF v. UNITED STATES ALITO, J., dissenting an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person repre- sents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, at- tempted use, or threatened use of physical force against such intimate partner or child that would rea- sonably be expected to cause bodily injury . . . .” Under this reticulated provision, does the majority’s inter- pretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammuni- tion, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hear- ing, (3) that he had been given an opportunity to partici- pate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his “intimate partner,” and (6) that the order explicitly prohibited the “use, attempted use, or threatened use of physical force”? Did Congress want a person who terrorized an intimate partner to escape con- viction under §922(g) by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun? What about the category defined by §922(g)(9), which covers a person “who has been convicted in any court of a misdemeanor crime of domestic violence”? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were con- victed falls within the complicated definition of a “crime of Cite as: 588 U. S. ____ (2019) 15 ALITO, J., dissenting domestic violence”? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United States v. Hayes, 555 U.S. 415 (2009), the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States, 579 U. S. ___ (2016), the Court said yes, but JUSTICE THOMAS and JUSTICE SOTOMAYOR dissented. Does this provision apply if only slight force is required for convic- tion by the misdemeanor provision under which the de- fendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman, 572 U.S. 157, 162 (2014) (opinion of the Court), with id., at 175 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a “crime of domestic violence,” would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in 1996 to combat domestic violence? Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his con- tinued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admit- ted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student. Does that take him 16 REHAIF v. UNITED STATES ALITO, J., dissenting outside §922(g)(8)? Is it likely that this is what Congress wanted? That is most doubtful. Congress enacted §922(g)’s status- based restrictions because of its judgment that specific classes of people are “potentially irresponsible and dan- gerous” and therefore should be prohibited from owning or possessing firearms and ammunition. Barrett v. United States, 423 U.S. 212, 218 (1976). It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status. Third, while the majority’s interpretation would frus- trate Congress’s public safety objectives in cases involving some of the §922(g) status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority’s interpretation will pro- duce perverse results. A felony conviction is almost al- ways followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old Chief v. United States, 519 U.S. 172 (1997), it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a §922(g) defendant’s detriment. Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the oppos- ing party offers to stipulate to that fact, id., at 186–190, but the Court held that a §922(g) defendant’s offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the Cite as: 588 U. S. ____ (2019) 17 ALITO, J., dissenting identity of that offense. This holding appears to rest on the understanding that §922(g) requires proof of status but not of knowledge. See id., at 190 (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant’s knowledge is now neces- sary, the logic of Old Chief is undermined. Fourth, the majority’s interpretation of §922(g) would lead to an anomaly that Congress is unlikely to have intended. Another provision of §922—i.e., §922(d)(5)(A)— prohibits firearms sellers from selling to persons who fall within a §922(g) category, but this provision does not require proof that the seller had actual knowledge of the purchaser’s status. It is enough if the seller had “reason- able cause” to know that a purchaser fell into a prohibited category. A person who falls into one of the §922(g) cate- gories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the §922(g) categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority’s interpretation leads. Fifth, the legal landscape at the time of §922(g)’s enact- ment weighs strongly against the majority’s reading. Long before Congress added the term “knowingly” to §924(a)(2), federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, 52 Stat. 1250; Act of Oct. 3, 1961, Pub. L. 87–342, 75 Stat. 757; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90–351, 82 Stat. 197; Gun Control Act of 1968, Pub. L. 90–618, 82 Stat. 1213, note following 18 U.S. C. §921. These predecessors of §922(g) did not ex- pressly include any mens rea requirement, but courts generally interpreted them to require proof that a defend- ant acted knowingly in receiving, transporting, or pos- sessing a firearm. The courts did not, however, require 18 REHAIF v. UNITED STATES ALITO, J., dissenting proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the stat- utes’ interstate-commerce requirement. See, e.g., United States v. Santiesteban, 825 F.2d 779, 782–783 (CA4 1987); United States v. Schmitt, 748 F.2d 249, 252 (CA5 1984); United States v. Oliver, 683 F.2d 224, 229 (CA7 1982); United States v. Lupino, 480 F.2d 720, 723–724 (CA8 1973); United States v. Pruner, 606 F.2d 871, 873–874 (CA9 1979).3 During this same period, many States adopted similar laws,4 and no State’s courts interpreted such a law to require knowledge of the defendant’s status. See, e.g., People v. Nieto, 247 Cal. App. 2d 364, 368, 55 Cal. Rptr. 546, 549 (1966). People v. Tenorio, 197 Colo. 137, 144–145, 590 P.2d 952, 957 (1979); State v. Harmon, 25 Ariz. App. 137, 139, 541 P.2d 600, 602 (1975); State v. Heald, 382 A.2d 290, 297 (Me. 1978); Williams v. State, 565 P.2d 46, 49 (Okla. Crim. App. 1977). All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted §924(a)(2)’s mens rea requirement in 1986. See Firearms Owners’ Protection Act, 100 Stat. 449, note following 18 U.S. C. §921. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” Ryan v. Valencia Gonzales, 568 U.S. 57, 66 (2013) (inter- nal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of —————— 3 The majority highlights a single case where the Sixth Circuit did require knowledge that the defendant was under indictment, out of a concern about secret indictments. Ante, at 10 (citing United States v. Renner, 496 F.2d 922, 924, 927 (1974)). But Congress addressed this concern separately when it enacted the mens rea requirement. It moved the provision involving indictments to its own statutory subsec- tion, §922(n), and punished only willful violations, see §924(a)(1)(D). 4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8. Cite as: 588 U. S. ____ (2019) 19 ALITO, J., dissenting persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provi- sion in §924(a)(2) “clarif[ied]” that knowledge is the re- quired mens rea with respect to a defendant’s conduct, ante, at 10, but it did not indicate any disagreement with the established consensus that already applied that mens rea to §922(g)’s conduct element but not to the element of the defendant’s status.5 Finally, the judgment of the courts of appeals should count for something. In Feola, the Court cited the “practi- cal unanimity” of the courts of appeals, 420 U.S., at 676; see also Luna Torres, 578 U. S., at ___, ___ (slip op., at 15– 16), and here, even after Congress added the mens rea requirement, all the courts of appeals to address the ques- tion have held that it does not apply to the defendant’s status.6 In addition, the decisions of the highest courts of —————— 5 Contrary to the majority’s suggestion, ante, at 10, the addition of the mens rea requirement does serve a purpose under this interpretation: It codifies the holdings of the lower courts that knowledge is required for the conduct element. If Congress had left §922(g) off the list of offenses requiring knowledge in §924(a)(2), some may have invoked expressio unius to argue that a violation of §922(g) required no mens rea at all. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). 6 See United States v. Smith, 940 F.2d 710, 713 (CA1 1991); United States v. Huet, 665 F.3d 588, 596 (CA3 2012); United States v. Langley, 62 F.3d 602, 604–608 (CA4 1995) (en banc); United States v. Rose, 587 F.3d 695, 705–706, and n. 9 (CA5 2009) (per curiam); United States v. Dancy, 861 F.2d 77, 80–82 (CA5 1988) (per curiam); United States v. Lane, 267 F.3d 715, 720 (CA7 2001); United States v. Thomas, 615 F. 3d 895, 899 (CA8 2010); United States v. Kind, 194 F.3d 900, 907 (CA8 1999); United States v. Miller, 105 F.3d 552, 555 (CA9 1997); United States v. Games-Perez, 667 F.3d 1136, 1142 (CA10 2012); United States v. Capps, 77 F.3d 350, 352–354 (CA10 1996); United States v. Jackson, 120 F.3d 1226, 1229 (CA11 1997) (per curiam); United States v. Bryant, 523 F.3d 349, 354 (CADC 2008). 20 REHAIF v. UNITED STATES ALITO, J., dissenting States with laws similar to §922(g) have continued to unanimously interpret those provisions in the same way.7 2 Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the pre- sumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States, 575 U. S. ___ (2015); United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Morissette v. United States, 342 U.S. 246 (1952). This concern, which also animates much of the majority’s analysis, is overstated. The majority does not claim that the Constitution re- quires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other rea- son. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. “ ‘The majority rule in the United States is that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. . . . A defendant’s good faith or reasonable belief that the victim is over the age of consent is simply no defense.’ ” United States v. Gomez- Mendez, 486 F.3d 599, 603, n. 7 (CA9 2007) (citation omitted). Similarly, 18 U.S. C. §2243(a) makes it a crime, punishable by up to 15 years’ imprisonment, knowingly to engage in a sexual act with a person who is between the —————— 7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19 (collecting cases). Cite as: 588 U. S. ____ (2019) 21 ALITO, J., dissenting ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim’s age need not be proved. §2241(d). I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid. Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes be- tween lawful and unlawful conduct, but petitioner exag- gerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this “rule” because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. 41 CFR §102–74.400 (2018). Jurisdictional elements may also drastically in- crease the punishment for a wrongful act. For example, the statute at issue in Feola, which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S. C. §111 and §113. Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties. Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes is rebut- ted. This rebuttal can be done by the statutory text or other persuasive factors. See Liparota v. United States, 471 U.S. 419, 425 (1985) (applying presumption “[a]bsent indication of contrary purpose in the language or legisla- tive history”); X-Citement Video, 513 U.S., at 70–72 (dis- cussing statutory context in reaching conclusion); Flores- 22 REHAIF v. UNITED STATES ALITO, J., dissenting Figueroa, 556 U.S., at 652; id., at 660 (ALITO, J., concur- ring in part and concurring in judgment). And here, for the reasons discussed above, §922(g) is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories. I add one last point about what can be inferred regard- ing Congress’s intent. Once it becomes clear that statu- tory text alone does not answer the question that we face and we are left to infer Congress’s intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the §922(g) offense. As we said in Staples v. United States, 511 U.S. 600, 609 (1994), “different elements of the same offense can require different mental states.” And if Congress wanted to require proof of some mens rea with respect to the categories in §922(g), there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea—actual knowledge. Why not require reason to know or recklessness or negli- gence? To this question, neither petitioner nor the major- ity has any answer. D Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitu- tionality of some strict-liability offenses in the past. See United States v. Freed, 401 U.S. 601 (1971); United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Balint, 258 U.S. 250 (1922); United States v. Behrman, 258 U.S. 280 (1922). In any event, if the avoidance of a serious constitutional question required us to infer that some mens rea applies to §922(g)’s status element, that Cite as: 588 U. S. ____ (2019) 23 ALITO, J., dissenting would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge. As for the rule of lenity, we resort to it “only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” Muscarello v. United States, 524 U.S. 125, 138 (1998) (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge. III Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S. C. §922(g).8 It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S. C. §2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. Bousley v. United States, 523 U.S. 614, 618–619 (1998). If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the dis- trict courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court —————— 8 The U. S. Sentencing Commission reports that in fiscal year 2017 there were 6,032 offenders convicted under 18 U.S. C. §922(g), with an average sentence of 64 months, https:// www.ussc.gov / sites / default / files / pdf / research - and - publications / quick - facts / Felon_in_Possession_ FY17.pdf (as last visited June 19, 2019). 24 REHAIF v. UNITED STATES ALITO, J., dissenting from a distant place of confinement, and make a credibil- ity determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth, 188 F.3d 99, 109 (CA3 1999); United States v. Jones, 172 F.3d 381, 384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d 782, 784 (CA8 1998); United States v. Benboe, 157 F.3d 1181, 1184 (CA9 1998). This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.” Cf. Mathis v. United States, 579 U. S. ___, ___–___ (2016) (ALITO, J., dissenting) (slip op., at 5–6). Nor is there any reason to think that the Court’s reason- ing here will necessarily be limited to §922(g). The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea. Ante, at 7. * * * The majority today opens the gates to a flood of litiga- tion that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubt- ing the defendant’s knowledge. The majority’s interpreta- tion of §922(g) is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended. I respectfully dissent

The Court casually overturns the long-established in- terpretation of an important criminal statute, 18 U.S. C. an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with re- spect to the thousands of prisoners currently serving terms for convictions. Applications for relief by federal prisoners sentenced under will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of 2 REHAIF v. UNITED STATES ALITO, J., dissenting harmless-error review. See ante, at 11. If today’s decision were compelled by the text of or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today’s decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of had worked any serious injustice. The push for us to grant review was based on the super- ficially appealing but ultimately fallacious argument that the text of dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today’s decision, while casting aside the established inter- pretation of does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent. And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor. I The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this peti- tioner’s claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of “an alien who was brought into the United States un- lawfully as a small child and was therefore unaware of his unlawful status.” Ante, at 8. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up. Here is what really happened. Petitioner, a citizen of Cite as: 588 U. S. (2019) 3 ALITO, J., dissenting the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4–5. After he was condi- tionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not ap- peal. The school sent him e-mails informing him that he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be termi- 888 F.3d, at –1141. Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that peti- tioner claimed to have weapons in his room. Arrested and charged under for possession of a firearm by an illegal alien, petitioner claimed at trial that the Govern- ment had to prove beyond a reasonable doubt that he actually knew that his lawful status had been termi Following what was then the universal and long- established interpretation of the District Court rejected this argument, and a jury found him guilty. 888 F.3d, at 1141. The Eleventh Circuit affirmed. at Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student. 4 REHAIF v. UNITED STATES ALITO, J., dissenting II A Petitioner claims that the texts of and a com- panion provision, 18 U.S. C. dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows: “Whoever knowingly violates subsection (g) of sec- tion 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both.” (Emphasis added.) Section 922(g), in turn, makes it unlawful for nine cate- gories of persons to engage in certain interstate- commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U. S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misde- meanor crime of domestic violence.1 Persons falling into —————— 1 Title 18 U.S. C. provides as follows: “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien— “(A) is illegally or unlawfully in the United States; or “(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in Cite as: 588 U. S. (2019) 5 ALITO, J., dissenting these categories are forbidden, as relevant here, to “pos- sess in or affecting commerce, any firearm.” Petitioner argues that, when and are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enu- merated categories. But this purportedly textual argu- ment requires some moves that cannot be justified on the basis of the statutory text. Petitioner’s argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival. Petitioner begins by extracting the term “knowingly” from He then transplants it into the beginning of ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because “know- ingly” appears at the beginning of the enumeration of the —————— section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C. “(6) who has been discharged from the Armed Forces under dishonor- able conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 6 REHAIF v. UNITED STATES ALITO, J., dissenting elements of the offense, we must assume that it modifies the first of those elements, i.e., being a convicted felon, illegal alien, etc. To conclude otherwise, he con- tends, is to commit the sin of having the term “knowingly” leap over that element and then land conveniently in front of the second. Pet. for Cert. 8. But petitioner’s reading is guilty of the very sort of leaping that it condemns—and then some. It has “know- ingly” performed a jump of Olympian proportions, taking off from sailing backward over more than 9,000 words in the U. S. Code, and then landing—conveniently— at the beginning of the enumeration of the elements of the offense. Of course, there is no logical reason why this jump has to land at that particular point in That is petitioner’s first sleight of hand. But there is another. What petitioner and those who have pressed this leap- ing argument want to say is essentially this: Who- ever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant’s status as an illegal alien must actually be known to him. That is es- sentially what we held in But when the term “knowingly” is excised from and inserted at the beginning of what we get is something quite different: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States to possess in or affecting commerce, any firearm or ammunition Congress did not—and certainly would not—enact a statute that reads like that. To convert this garbled con- glomeration into intelligible prose, editing is obviously Cite as: 588 U. S. (2019) 7 ALITO, J., dissenting needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating and that minimizes the changes in the language of the two provisions: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States and possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] The most natural reading of this version is that the de- fendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien’s possession of the firearm or ammunition must be knowing—even though everyone agrees that this is required. Here are two other possibilities that require more changes. The first is this: Whoever knowingly It is unlawful for any per- son who, being an alien who—is illegally or un- lawfully in the United States to possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] The second, which differs from the first only in that the clause “who is illegally or unlawfully in the United States” is set off by commas, is this: Whoever knowingly It is unlawful for any per- son who, being an alien, who—is illegally or un- lawfully in the United States, to possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] A strict grammarian, noting that the clause “who is legally or unlawfully in the United States” is restrictive in the 8 REHAIF v. UNITED STATES ALITO, J., dissenting first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these ver- sions, it is again unclear whether a defendant’s possession of the firearm or ammunition must be knowing. All of the versions discussed so far place the term “knowingly” at the beginning of our transformed version of but as noted, there is no reason why this term’s leap from must land at that point. So our new version of could just as logically read like this: Whoever It is unlawful for any person who, being an alien who—is illegally or unlawfully in the United States to knowingly possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] That would make it clear that the long-established inter- pretation of is correct. What these possibilities show is that any attempt to combine the relevant language from with the language of necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If § and 924(a)(2) are arbitrarily combined in the way that peti- tioner prefers, then, presto chango, they support petition- er’s interpretation. What a magic trick! B The truth behind the illusion is that the terms used in § and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways. First, the language of § and 922(g) can be read to require that a defendant know that his conduct is a violation of In ordinary speech, to knowingly Cite as: 588 U. S. (2019) 9 ALITO, J., dissenting violate a rule may mean to violate a known rule. (“He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.”) Neither petitioner nor the Gov- ernment suggests that this is the proper interpretation of § and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be “willful.” In ordinary speech, “will- fulness” does not require or even suggest knowledge of illegality. See Webster’s Third New International Dic- tionary 2617 But we have construed the term as used in statutes to mean the “intentional violation of a known legal duty.” United 360 (1973). Thus, the pointed use of the term “knowingly,” as opposed to “willfully,” in provides a ground to infer that Congress did not mean to require knowledge of illegality. Second, a “knowing” violation could require knowledge of every element that makes up the offense. As applied to that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien “illegally or unlawfully in the United States,” (2) knew that the thing he “possess[ed]” was “a firearm or ammunition,” and (3) knew that what he did was “in or affecting commerce.” But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate- commerce element of the offense. To reach this conclu- sion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term “knowingly” at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to 10 REHAIF v. UNITED STATES ALITO, J., dissenting the interstate-commerce element just like the others. Once again, the conclusion that “knowingly” does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammu- nition was “in or affecting commerce” is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g., Luna Torres v. Lynch, 578 U. S. (2016) (slip op., at 15). But the inference that this is not what Congress intended is in no way com- pelled by the text of which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2 Third, a “knowing” violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it incorporated the term “knowingly” into would have placed it at the beginning of that provision. As I have explained, there is no textual basis for that assumption. Fourth, a “knowing” violation could require knowledge of the conduct element—the possession of a firearm or ammunition—but not the others. Putting aside the ques- —————— 2 Indeed, the jurisdictional element is listed before the firearm ele- ment of the offense, to which everyone agrees the mens rea requirement applies. The text alone does not explain why the word “knowingly” would “leapfro[g]” over the middle element, which is perhaps why the majority does not adopt the novel “grammatical gravity” canon. United (Gorsuch, J., concurring); see also Tr. of Oral Arg. 32. Cite as: 588 U. S. (2019) 11 ALITO, J., dissenting tion of the jurisdictional element, that is how one would naturally read if Congress had incorporated the knowledge requirement into after the status ele- ment and just before the conduct element. Of course, Congress did not do that—but neither did it place “know- ingly” at the beginning of the list of elements. As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of to which the term “know- ingly” applies. And once it is recognized that the statutory text does not specify the mens rea applicable to ’s status element, there is no reason to assume that what Congress wanted was either a very high mens rea re- quirement (actual knowledge) or no mens rea at all. See infra, at 22. However, if we limit ourselves to those op- tions, as the parties and the majority assume we must, the latter is more likely. C 1 That is so for at least six reasons. First, in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defend- ant’s own status. Nor has petitioner pointed to any stat- ute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has ex- pressly incorporated a mens rea requirement into a provi- sion with an element involving the defendant’s status, it has placed the mens rea requirement after the status element. For example, 18 U.S. C. punishes any “person having custody or control of a minor who know- ingly permits such minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the 12 REHAIF v. UNITED STATES ALITO, J., dissenting issue of a defendant’s status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S. C. punishes an “officer, employee, contrac- tor, or consultant of the United States [who] knowingly removes [classified] documents or materials without au- thority.” And 21 U.S. C. prohibits “any person at least eighteen years of age [from] knowingly and inten- tionally receiv[ing] a controlled substance from a per- son under 18 years of age.” So what the majority has done in this case is groundbreaking. Second, there are sound reasons for treating ’s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satis- fied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U. S. ; United States v. Yermian, ; United We have never provided a compre- hensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of as- saulting a federal officer in violation of 18 U.S. C. is instructive. Agreeing with the interpretation that had been adopted with “practical unanimity” by the courts of Feola held that an accused need not be shown to have been aware of his victim’s status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute’s dual objectives of protecting federal officers and preventing the obstruc- tion of law A similar consideration appears to provide the basis for the conclusion that a defendant need not know that his possession of a gun is “in or affecting commerce.” Whether or not conduct satisfies that requirement in- volves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost Cite as: 588 U. S. (2019) 13 ALITO, J., dissenting everyone but students of constitutional law from the stat- ute’s reach; and that would obviously defeat the statute’s objectives. The reason for the rule exempting knowledge of jurisdic- tional elements supports the conclusion that knowledge of ’s status element is also not required. Whether a defendant falls into one of the categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute’s goals. Take the category defined in (4), which applies to a person who has been “adjudicated as a mental defective,” a term that is defined by regulation to mean “(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, in- competency, condition, or disease: “(1) Is a danger to himself or to others; or “(2) Lacks the mental capacity to contract or manage his own affairs.” (a) (2019). Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a “danger to others” due to mental illness or incompetency, should he escape the reach of because he does not know that a court has so found? Or consider the category defined by (8), which applies to a person “who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had 14 REHAIF v. UNITED STATES ALITO, J., dissenting an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person repre- sents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, at- tempted use, or threatened use of physical force against such intimate partner or child that would rea- sonably be expected to cause bodily injury” Under this reticulated provision, does the majority’s inter- pretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammuni- tion, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hear- ing, (3) that he had been given an opportunity to partici- pate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his “intimate partner,” and (6) that the order explicitly prohibited the “use, attempted use, or threatened use of physical force”? Did Congress want a person who terrorized an intimate partner to escape con- viction under by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun? What about the category defined by (9), which covers a person “who has been convicted in any court of a misdemeanor crime of domestic violence”? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were con- victed falls within the complicated definition of a “crime of Cite as: 588 U. S. (2019) 15 ALITO, J., dissenting domestic violence”? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States, 579 U. S. (2016), the Court said yes, but JUSTICE THOMAS and JUSTICE SOTOMAYOR dissented. Does this provision apply if only slight force is required for convic- tion by the misdemeanor provision under which the de- fendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman, 572 U.S. 157, 162 (2014) (opinion of the Court), with at 175 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a “crime of domestic violence,” would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in to combat domestic violence? Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his con- tinued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admit- ted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student. Does that take him 16 REHAIF v. UNITED STATES ALITO, J., dissenting outside (8)? Is it likely that this is what Congress wanted? That is most doubtful. Congress enacted ’s status- based restrictions because of its judgment that specific classes of people are “potentially irresponsible and dan- gerous” and therefore should be prohibited from owning or possessing firearms and ammunition. It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status. Third, while the majority’s interpretation would frus- trate Congress’s public safety objectives in cases involving some of the status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority’s interpretation will pro- duce perverse results. A felony conviction is almost al- ways followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a defendant’s detriment. Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the oppos- ing party offers to stipulate to that fact, at 186–190, but the Court held that a defendant’s offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the Cite as: 588 U. S. (2019) 17 ALITO, J., dissenting identity of that offense. This holding appears to rest on the understanding that requires proof of status but not of knowledge. See (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant’s knowledge is now neces- sary, the logic of Old Chief is undermined. Fourth, the majority’s interpretation of would lead to an anomaly that Congress is unlikely to have intended. Another provision of prohibits firearms sellers from selling to persons who fall within a category, but this provision does not require proof that the seller had actual knowledge of the purchaser’s status. It is enough if the seller had “reason- able cause” to know that a purchaser fell into a prohibited category. A person who falls into one of the cate- gories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority’s interpretation leads. Fifth, the legal landscape at the time of ’s enact- ment weighs strongly against the majority’s reading. Long before Congress added the term “knowingly” to federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, ; Act of Oct. 3, 1961, Pub. L. 87–342, 75 Stat. 757; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90–351, ; Gun Control Act of 1968, Pub. L. 90–618, note following 18 U.S. C. These predecessors of did not ex- pressly include any mens rea requirement, but courts generally interpreted them to require proof that a defend- ant acted knowingly in receiving, transporting, or pos- sessing a firearm. The courts did not, however, require 18 REHAIF v. UNITED STATES ALITO, J., dissenting proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the stat- utes’ interstate-commerce requirement. See, e.g., United ; United ; United ; United 723–724 (CA8 1973); United 873–8743 During this same period, many States adopted similar laws,4 and no State’s courts interpreted such a law to require knowledge of the defendant’s status. See, e.g., 55 Cal. Rptr. 546, 549 (19). 144–145, ; ; State v. Heald, 382 A.2d 290, 297 (Me. 1978); 49 (Okla. Crim. App. 1977). All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted ’s mens rea requirement in 1986. See Firearms Owners’ Protection Act, note following 18 U.S. C. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” (inter- nal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of —————— 3 The majority highlights a single case where the Sixth Circuit did require knowledge that the defendant was under indictment, out of a concern about secret indictments. Ante, at 10 ). But Congress addressed this concern separately when it enacted the mens rea requirement. It moved the provision involving indictments to its own statutory subsec- tion, and punished only willful violations, see (D). 4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8. Cite as: 588 U. S. (2019) 19 ALITO, J., dissenting persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provi- sion in “clarif[ied]” that knowledge is the re- quired mens rea with respect to a defendant’s conduct, ante, at 10, but it did not indicate any disagreement with the established consensus that already applied that mens rea to ’s conduct element but not to the element of the defendant’s status.5 Finally, the judgment of the courts of should count for something. In Feola, the Court cited the “practi- cal unanimity” of the courts of ; see also Luna Torres, 578 U. S., at (slip op., at 15– 16), and here, even after Congress added the mens rea requirement, all the courts of to address the ques- tion have held that it does not apply to the defendant’s status.6 In addition, the decisions of the highest courts of —————— 5 Contrary to the majority’s suggestion, ante, at 10, the addition of the mens rea requirement does serve a purpose under this interpretation: It codifies the holdings of the lower courts that knowledge is required for the conduct element. If Congress had left off the list of offenses requiring knowledge in some may have invoked expressio unius to argue that a violation of required no mens rea at all. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 6 See United ; United 5 F.3d 588, ; United 62 F.3d ; United States v. Rose, 587 F.3d 695, 705–706, and n. 9 ; United States v. Dancy, ; United States v. Lane, ; United States v. Thomas, 615 F. 3d 895, 899 (CA8 2010); United (CA8 1999); United ; United ; United States v. Capps, ; United 1 ; United 20 REHAIF v. UNITED STATES ALITO, J., dissenting States with laws similar to have continued to unanimously interpret those provisions in the same way.7 2 Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the pre- sumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States, 575 U. S. (2015); United ; Morissette v. United States, 342 U.S. 246 (1952). This concern, which also animates much of the majority’s analysis, is overstated. The majority does not claim that the Constitution re- quires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other rea- son. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. “ ‘The majority rule in the United States is that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. A defendant’s good faith or reasonable belief that the victim is over the age of consent is simply no defense.’ ” United (citation omitted). Similarly, 18 U.S. C. makes it a crime, punishable by up to 15 years’ imprisonment, knowingly to engage in a sexual act with a person who is between the —————— 7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19 (collecting cases). Cite as: 588 U. S. (2019) 21 ALITO, J., dissenting ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim’s age need not be proved. I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid. Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes be- tween lawful and unlawful conduct, but petitioner exag- gerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this “rule” because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. –74.400 (2018). Jurisdictional elements may also drastically in- crease the punishment for a wrongful act. For example, the statute at issue in Feola, which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S. C. and Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties. Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes is rebut- ted. This rebuttal can be done by the statutory text or other persuasive factors. See (applying presumption “[a]bsent indication of contrary purpose in the language or legisla- tive history”); X-Citement –72 (dis- cussing statutory context in reaching conclusion); Flores- 22 REHAIF v. UNITED STATES ALITO, J., dissenting 556 U.S., at ; at 0 (ALITO, J., concur- ring in part and concurring in judgment). And here, for the reasons discussed above, is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories. I add one last point about what can be inferred regard- ing Congress’s intent. Once it becomes clear that statu- tory text alone does not answer the question that we face and we are left to infer Congress’s intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the offense. As we said in Staples v. United States, “different elements of the same offense can require different mental states.” And if Congress wanted to require proof of some mens rea with respect to the categories in there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea—actual knowledge. Why not require reason to know or recklessness or negli- gence? To this question, neither petitioner nor the major- ity has any answer. D Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitu- tionality of some strict-liability offenses in the past. See United ; United States v. Dotterweich, ; United States v. Balint, ; United In any event, if the avoidance of a serious constitutional question required us to infer that some mens rea applies to ’s status element, that Cite as: 588 U. S. (2019) 23 ALITO, J., dissenting would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge. As for the rule of lenity, we resort to it “only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge. III Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S. C.8 It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S. C. and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. 618–619 If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the dis- trict courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court —————— 8 The U. S. Sentencing Commission reports that in fiscal year 2017 there were 6,032 offenders convicted under 18 U.S. C. with an average sentence of 64 months, https:// www.ussc.gov / sites / default / files / pdf / research - and - publications / quick - facts / Felon_in_Possession_ FY17.pdf (as last visited June 19, 2019). 24 REHAIF v. UNITED STATES ALITO, J., dissenting from a distant place of confinement, and make a credibil- ity determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth, 188 F.3d 99, 109 (CA3 1999); United 384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d 782, 784 ; United States v. Benboe, 157 F.3d 1181, 1184 This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.” Cf. Mathis v. United States, 579 U. S. – (2016) (ALITO, J., dissenting) (slip op., at 5–6). Nor is there any reason to think that the Court’s reason- ing here will necessarily be limited to The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea. Ante, at 7. * * * The majority today opens the gates to a flood of litiga- tion that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubt- ing the defendant’s knowledge. The majority’s interpreta- tion of is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended. I respectfully dissent

Justice Rehnquist

majority

Seminole Tribe of Fla. v. Florida

1996-03-27

https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/

https://www.courtlistener.com/api/rest/v3/clusters/118011/

1995-037

The Indian Gaming Regulatory Act provides that an Indian tribe may conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 102 Stat. 2475, 25 U.S. C. § 2710(d)(1)(C). The Act, passed by Congress under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3,imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact, § 2710(d)(3)(A), and authorizes a tribe to bring suit in federal court against a State in order to compel performance of that duty, § 2710(d)(7). We hold that notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore § 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued. We further hold that the doctrine of Ex parte Young, 209 U.S. 123 (1908), may not be used to enforce § 2710(d)(3) against a state official. *48 I Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U.S. C. § 2702. The Act divides gaming on Indian lands into three classes—I, II, and III—and provides a different regulatory scheme for each class. Class III gaming—the type with which we are here concerned—is defined as "all forms of gaming that are not class I gaming or class II gaming," § 2703(8), and includes such things as slot machines, casino games, banking card games, dog racing, and lotteries.[1] It is the most heavily regulated of the three classes. The Act provides that class III gaming is lawful only where it is: (1) authorized by an ordinance or resolution that (a) is adopted by the governing body of the Indian tribe, (b) satisfies certain statutorily prescribed requirements, and (c) is approved by the National Indian Gaming Commission; (2) located in a State that permits such gaming for any purpose by any person, organization, or entity; and (3) "conducted in conformance with a Tribal-State compact entered into by the *49 Indian tribe and the State under paragraph (3) that is in effect." § 2710(d)(1). The "paragraph (3)" to which the last prerequisite of § 2710(d)(1) refers is § 2710(d)(3), which describes the permissible scope of a Tribal-State compact, see § 2710(d)(3)(C), and provides that the compact is effective "only when notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register," § 2710(d)(3)(B). More significant for our purposes, however, is that § 2710(d)(3) describes the process by which a State and an Indian tribe begin negotiations toward a Tribal-State compact: "(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact." The State's obligation to "negotiate with the Indian tribe in good faith" is made judicially enforceable by §§ 2710(d) (7)(A)(i) and (B)(i): "(A) The United States district courts shall have jurisdiction over— "(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith . . . . "(B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the *50 Indian tribe requested the State to enter into negotiations under paragraph (3)(A)." Sections 2710(d)(7)(B)(ii)-(vii) describe an elaborate remedial scheme designed to ensure the formation of a Tribal-State compact. A tribe that brings an action under § 2710(d) (7)(A)(i) must show that no Tribal-State compact has been entered and that the State failed to respond in good faith to the tribe's request to negotiate; at that point, the burden then shifts to the State to prove that it did in fact negotiate in good faith. § 2710(d)(7)(B)(ii). If the district court concludes that the State has failed to negotiate in good faith toward the formation of a Tribal-State compact, then it "shall order the State and Indian Tribe to conclude such a compact within a 60-day period." § 2710(d)(7)(B)(iii). If no compact has been concluded 60 days after the court's order, then "the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact." § 2710(d)(7) (B)(iv). The mediator chooses from between the two proposed compacts the one "which best comports with the terms of [the Act] and any other applicable Federal law and with the findings and order of the court," ibid. , and submits it to the State and the Indian tribe, § 2710(d)(7)(B)(v). If the State consents to the proposed compact within 60 days of its submission by the mediator, then the proposed compact is "treated as a Tribal-State compact entered into under paragraph (3)." § 2710(d)(7)(B)(vi). If, however, the State does not consent within that 60-day period, then the Act provides that the mediator "shall notify the Secretary [of the Interior]" and that the Secretary "shall prescribe . . . procedures. . . under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction." § 2710(d)(7)(B)(vii).[2] *51 In September 1991, the Seminole Tribe of Florida, petitioner, sued the State of Florida and its Governor, Lawton Chiles, respondents. Invoking jurisdiction under 25 U.S. C. *52 § 2710(d)(7)(A), as well as 28 U.S. C. §§ 1331 and 1362, petitioner alleged that respondents had "refused to enter into any negotiation for inclusion of [certain gaming activities] in a tribal-state compact," thereby violating the "requirement of good faith negotiation" contained in § 2710(d)(3). Petitioner's Complaint ¶ 24, see App. 18. Respondents moved to dismiss the complaint, arguing that the suit violated the State's sovereign immunity from suit in federal court. The District Court denied respondents' motion, 801 F. Supp. 655 (SD Fla. 1992), and respondents took an interlocutory appeal of that decision. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) (collateral order doctrine allows immediate appellate review of order denying claim of Eleventh Amendment immunity). The Court of Appeals for the Eleventh Circuit reversed the decision of the District Court, holding that the Eleventh Amendment barred petitioner's suit against respondents.[3] 11 F.3d 1016 (1994). The court agreed with the District Court that Congress in § 2710(d)(7) intended to abrogate the States' sovereign immunity, and also agreed that the Act had been passed pursuant to Congress' power under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. The court disagreed with the District Court, however, that the Indian *53 Commerce Clause grants Congress the power to abrogate a State's Eleventh Amendment immunity from suit, and concluded therefore that it had no jurisdiction over petitioner's suit against Florida. The court further held that Ex parte Young, 209 U.S. 123 (1908), does not permit an Indian tribe to force good-faith negotiations by suing the Governor of a State. Finding that it lacked subject-matter jurisdiction, the Eleventh Circuit remanded to the District Court with directions to dismiss petitioner's suit.[4] Petitioner sought our review of the Eleventh Circuit's decision,[5] and we granted certiorari, 513 U.S. 1125 (1995), in order to consider two questions: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit suits against a State's Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act? We answer the first question in the affirmative, the second in the negative, and we therefore affirm the Eleventh Circuit's dismissal of petitioner's suit.[6] *54 The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition. . . which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U.S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that "`[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,' " id., at 13 (emphasis deleted), quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton). See also Puerto Rico Aqueduct and Sewer Authority, supra, at 146 ("The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity"). For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States." Hans, supra, at 15.[7] *55 Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. See Blatchford, supra, at 782 (States by entering into the Constitution did not consent to suit by Indian tribes). Petitioner nevertheless contends that its suit is not barred by state sovereign immunity. First, it argues that Congress through the Act abrogated the States' sovereign immunity. Alternatively, petitioner maintains that its suit against the Governor may go forward under Ex parte Young, supra. We consider each of those arguments in turn. II Petitioner argues that Congress through the Act abrogated the States' immunity from suit. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has "unequivocally expresse[d] its intent to abrogate the immunity," Green v. Mansour, 474 U.S. 64, 68 (1985); and second, whether Congress has acted "pursuant to a valid exercise of power," ibid. A Congress' intent to abrogate the States' immunity from suit must be obvious from "a clear legislative statement." Blatchford, supra, at 786. This rule arises from a recognition of the important role played by the Eleventh Amendment *56 and the broader principles that it reflects. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238-239 (1985); Quern v. Jordan, 440 U.S. 332, 345 (1979). In Atascadero , we held that "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." 473 U.S., at 246; see also Blatchford, supra, at 786, n. 4 ("The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim") (emphases deleted). Rather, as we said in Dellmuth v. Muth, 491 U.S. 223 (1989): "To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: `Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.' " Id., at 227-228. See also Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 474 (1987) (plurality opinion). Here, we agree with the parties, with the Eleventh Circuit in the decision below, 11 F.3d, at 1024, and with virtually every other court that has confronted the question[8] that Congress has in § 2710(d)(7) provided an "unmistakably clear" statement of its intent to abrogate. Section 2710(d)(7)(A)(i) *57 vests jurisdiction in "[t]he United States district courts . . . over any cause of action . . . arising from the failure of a State to enter into negotiations . . . or to conduct such negotiations in good faith." Any conceivable doubt as to the identity of the defendant in an action under § 2710(d)(7)(A)(i) is dispelled when one looks to the various provisions of § 2710(d)(7)(B), which describe the remedial scheme available to a tribe that files suit under § 2710(d)(7)(A)(i). Section 2710(d)(7)(B)(ii)(II) provides that if a suing tribe meets its burden of proof, then the "burden of proof shall be upon the State . . ."; § 2710(d)(7)(B)(iii) states that if the court "finds that the State has failed to negotiate in good faith . . . , the court shall order the State . . ."; § 2710(d)(7)(B)(iv) provides that "the State shall . . . submit to a mediator appointed by the court" and subsection (B)(v) of § 2710(d)(7) states that the mediator "shall submit to the State." Sections 2710(d) (7)(B)(vi) and (vii) also refer to the "State" in a context that makes it clear that the State is the defendant to the suit brought by an Indian tribe under § 2710(d)(7)(A)(i). In sum, we think that the numerous references to the "State" in the text of § 2710(d)(7)(B) make it indubitable that Congress intended through the Act to abrogate the States' sovereign immunity from suit.[9] B Having concluded that Congress clearly intended to abrogate the States' sovereign immunity through § 2710(d)(7), we *58 turn now to consider whether the Act was passed "pursuant to a valid exercise of power." Green v. Mansour, 474 U. S., at 68. Before we address that question here, however, we think it necessary first to define the scope of our inquiry. Petitioner suggests that one consideration weighing in favor of finding the power to abrogate here is that the Act authorizes only prospective injunctive relief rather than retroactive monetary relief. But we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See, e. g., Cory v. White, 457 U.S. 85, 90 (1982) ("It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought"). We think it follows a fortiori from this proposition that the type of relief sought is irrelevant to whether Congress has power to abrogate States' immunity. The Eleventh Amendment does not exist solely in order to "preven[t] federal-court judgments that must be paid out of a State's treasury," Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 48 (1994); it also serves to avoid "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at 146 (internal quotation marks omitted). Similarly, petitioner argues that the abrogation power is validly exercised here because the Act grants the States a power that they would not otherwise have, viz., some measure of authority over gaming on Indian lands. It is true enough that the Act extends to the States a power withheld from them by the Constitution. See California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Nevertheless, we do not see how that consideration is relevant to the question whether Congress may abrogate state sovereign immunity. The Eleventh Amendment immunity may not be lifted by Congress unilaterally deciding that it will be replaced *59 by grant of some other authority. Cf. Atascadero, 473 U. S., at 246-247 ("[T]he mere receipt of federal funds cannot establish that a State has consented to suit in federal court"). Thus our inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. Id., at 455. We noted that § 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that § 5 of the Amendment expressly provided that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." See id., at 453 (internal quotation marks omitted). We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment. In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages." 491 U.S., at 19-20. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express *60 that he "[did] not agree with much of [the plurality's] reasoning." Id., at 57 (opinion concurring in judgment in part and dissenting in part). In arguing that Congress through the Act abrogated the States' sovereign immunity, petitioner does not challenge the Eleventh Circuit's conclusion that the Act was passed pursuant to neither the Fourteenth Amendment nor the Interstate Commerce Clause. Instead, accepting the lower court's conclusion that the Act was passed pursuant to Congress' power under the Indian Commerce Clause, petitioner now asks us to consider whether that Clause grants Congress the power to abrogate the States' sovereign immunity. Petitioner begins with the plurality decision in Union Gas and contends that "[t]here is no principled basis for finding that congressional power under the Indian Commerce Clause is less than that conferred by the Interstate Commerce Clause." Brief for Petitioner 17. Noting that the Union Gas plurality found the power to abrogate from the "plenary" character of the grant of authority over interstate commerce, petitioner emphasizes that the Interstate Commerce Clause leaves the States with some power to regulate, see, e. g., West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994), whereas the Indian Commerce Clause makes "Indian relations . . . the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 234 (1985). Contending that the Indian Commerce Clause vests the Federal Government with "the duty of protect[ing]" the tribes from "local ill feeling" and "the people of the States," United States v. Kagama, 118 U.S. 375, 383-384 (1886), petitioner argues that the abrogation power is necessary "to protect the tribes from state action denying federally guaranteed rights." Brief for Petitioner 20. Respondents dispute petitioner's analogy between the Indian Commerce Clause and the Interstate Commerce Clause. They note that we have recognized that "the Interstate Commerce and Indian Commerce Clauses have very different *61 applications," Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989), and from that they argue that the two provisions are "wholly dissimilar." Brief for Respondents 21. Respondents contend that the Interstate Commerce Clause grants the power of abrogation only because Congress' authority to regulate interstate commerce would be "incomplete" without that "necessary" power. Id., at 23, citing Union Gas, supra, at 19-20. The Indian Commerce Clause is distinguishable, respondents contend, because it gives Congress complete authority over the Indian tribes. Therefore, the abrogation power is not "necessary" to Congress' exercise of its power under the Indian Commerce Clause.[10] Both parties make their arguments from the plurality decision in Union Gas, and we, too, begin there. We think it clear that Justice Brennan's opinion finds Congress' power to abrogate under the Interstate Commerce Clause from the States' cession of their sovereignty when they gave Congress plenary power to regulate interstate commerce. See Union Gas, 491 U. S., at 17 ("The important point . . . is that the provision both expands federal power and contracts state power"). Respondents' focus elsewhere is misplaced. While the plurality decision states that Congress' power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress' authority over interstate commerce. Id., at 19-20. Moreover, respondents' rationale would mean that where Congress has *62 less authority, and the States have more, Congress' means for exercising that power must be greater. We read the plurality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abrogate most necessary. Id., at 20 ("Since the States may not legislate at all in [the aforementioned] situations, a conclusion that Congress may not create a cause of action for money damages against the States would mean that no one could do so. And in many situations, it is only money damages that will carry out Congress' legitimate objectives under the Commerce Clause"). Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union Gas, if the States' partial cession of authority over a particular area includes cession of the immunity from suit, then their virtually total cession of authority over a different area must also include cession of the immunity from suit. See id., at 42 (Scalia, J., joined by Rehnquist, C. J., and O'Connor and Kennedy, JJ., dissenting) ("[I]f the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers"); see Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422, 1428 (CA10 1994) (Indian Commerce Clause grants power to abrogate), cert. pending, No. 94-1029; Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 281 (CA8 1993) (same); cf. Chavez v. Arte Publico *63 Press, 59 F.3d 539, 546-547 (CA5 1995) (After Union Gas, Copyright Clause, U. S. Const., Art. I, § 8, cl. 8, must grant Congress power to abrogate). We agree with petitioner that the plurality opinion in Union Gas allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause. Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abrogate the States' sovereign immunity. Instead, they contend that if we find the rationale of the Union Gas plurality to extend to the Indian Commerce Clause, then "Union Gas should be reconsidered and overruled." Brief for Respondents 25. Generally, the principle of stare decisis, and the interests that it serves, viz., "the evenhanded, predictable, and consistent development of legal principles, . . . reliance on judicial decisions, and . . . the actual and perceived integrity of the judicial process," Payne v. Tennessee, 501 U.S. 808, 827 (1991), counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U.S. 106, 119 (1940), and not as an "inexorable command," Payne, 501 U. S., at 828. "[W]hen governing decisions are unworkable or are badly reasoned, `this Court has never felt constrained to follow precedent.' " Id., at 827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases `correction through legislative action is practically impossible.' " Payne, supra, at 828 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407 (1932) (Brandeis, J., dissenting)). The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan's opinion received the support of only three other Justices. See Union Gas, 491 U. S., at 5 (Marshall, Blackmun, and Stevens, JJ., *64 joined Justice Brennan). Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality's rationale, id. , at 57 (opinion concurring in judgment and dissenting in part), and four Justices joined together in a dissent that rejected the plurality's rationale, id., at 35-45 (Scalia, J., dissenting, joined by Rehnquist, C. J., and O'Connor and Kennedy, JJ.). Since it was issued, Union Gas has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision. See, e. g., Chavez v. Arte Publico Press, supra, at 543-545 ("Justice White's concurrence must be taken on its face to disavow" the plurality's theory); 11 F.3d, at 1027 (Justice White's "vague concurrence renders the continuing validity of Union Gas in doubt"). The plurality's rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in Hans. See Union Gas, supra, at 36 ("If Hans means only that federal-question suits for money damages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all") (Scalia, J., dissenting). It was well established in 1989 when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: "The Judicial power of the United States shall not be construed to extend to any suit . . . ." And our decisions since Hans had been equally clear that the Eleventh Amendment reflects "the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Art. III," Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 97-98 (1984); see Union Gas, supra, at 38 ("`[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . . ` ") (Scalia, *65 J., dissenting) (quoting Ex parte New York, 256 U.S. 490, 497 (1921)); see also cases cited at n. 7, supra. As the dissent in Union Gas recognized, the plurality's conclusion—that Congress could under Article I expand the scope of the federal courts' jurisdiction under Article III—"contradict[ed] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction." Union Gas, supra, at 39. Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. Marbury v. Madison, 1 Cranch 137 (1803). The plurality's citation of prior decisions for support was based upon what we believe to be a misreading of precedent. See Union Gas, 491 U. S., at 40-41 (Scalia, J., dissenting). The plurality claimed support for its decision from a case holding the unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity, see id., at 14-15 (citing Parden v. Terminal Railway of Ala. Docks Dept., 377 U.S. 184 (1964)), and cited as precedent propositions that had been merely assumed for the sake of argument in earlier cases, see 491 U.S., at 15 (citing Welch v. Texas Dept. of Highways and Public Transp., 483 U. S., at 475-476, and n. 5, and County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S., at 252). The plurality's extended reliance upon our decision in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that Congress could under the Fourteenth Amendment abrogate the States' sovereign immunity was also, we believe, misplaced. Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated *66 to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment. Id., at 454. As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify "limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution." Union Gas, supra, at 42 (Scalia, J., dissenting). In the five years since it was decided, Union Gas has proved to be a solitary departure from established law. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. , 506 U.S. 139 (1993). Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. See Nichols v. United States, 511 U.S. 738, 746 (1994) (the "degree of confusion following a splintered decision . . . is itself a reason for reexamining that decision"). The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality's rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled. The dissent makes no effort to defend the decision in Union Gas, see post, at 100, but nonetheless would find congressional power to abrogate in this case.[11] Contending that our decision is a novel extension of the Eleventh Amendment, the dissent chides us for "attend[ing]" to dicta. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the *67 Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 613 (1990) (exclusive basis of a judgment is not dicta) (plurality); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) ("As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law") (Kennedy, J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U.S. 421, 490 (1986) ("Although technically dicta, . . . an important part of the Court's rationale for the result that it reache[s] . . . is entitled to greater weight . . .") (O'Connor, J., concurring). For over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment. In Principality of Monaco v. Mississippi, 292 U.S. 313 (1934), the Court held that the Eleventh Amendment barred a suit brought against a State by a foreign state. Chief Justice Hughes wrote for a unanimous Court: "[N]either the literal sweep of the words of Clause one of § 2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclusion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. Thus Clause one specifically provides that the judicial Power shall extend `to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' But, although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is *68 sought to be prosecuted against a State, without her consent, by one of her own citizens. . . . "Manifestly, we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a `surrender of this immunity in the plan of the convention.' " Id., at 321-323 (citations and footnote omitted). See id., at 329-330; see also Pennhurst, 465 U. S., at 98 ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U. S., at 497 ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . ."). It is true that we have not had occasion previously to apply established Eleventh Amendment principles to the question whether Congress has the power to abrogate state sovereign immunity (save in Union Gas ). But consideration of that question must proceed with fidelity to this century-old doctrine. The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans (other than Union Gas ) that supports its view of state sovereign immunity, instead relying upon the now-discredited decision in Chisholm v. Georgia, 2 Dall. 419 (1793). See, e. g., post, at 152, n. 47. Its undocumented and highly speculative extralegal explanation of *69 the decision in Hans is a disservice to the Court's traditional method of adjudication. See post, at 120-123. The dissent mischaracterizes the Hans opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental "`jurisprudence in all civilized nations.' " Hans, 134 U. S., at 17, quoting Beers v. Arkansas, 20 How. 527, 529 (1858); see also The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (sovereign immunity "is the general sense and the general practice of mankind"). The dissent's proposition that the common law of England, where adopted by the States, was open to change by the Legislature is wholly unexceptionable and largely beside the point: that common law provided the substantive rules of law rather than jurisdiction. Cf. Monaco, supra, at 323 (state sovereign immunity, like the requirement that there be a "justiciable" controversy, is a constitutionally grounded limit on federal jurisdiction). It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment. Hans— with a much closer vantage point than the dissent—recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent's conclusion that the decision in Chisholm was "reasonable," post, at 106, certainly would have struck the Framers of the Eleventh Amendment as quite odd: That decision created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." Monaco, supra, at 325. The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man—we long have recognized that blind reliance upon the text of the Eleventh Amendment is "`to strain the Constitution and the law to a construction never imagined or dreamed of.' " Monaco, supra, at 326, quoting Hans, supra, at 15. The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not *70 have federal-question jurisdiction at the time the Amendment was passed (and would not have it until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States. That same consideration causes the dissent's criticism of the views of Marshall, Madison, and Hamilton to ring hollow. The dissent cites statements made by those three influential Framers, the most natural reading of which would preclude all federal jurisdiction over an unconsenting State.[12] Struggling against this reading, however, the dissent finds significant the absence of any contention that sovereign immunity would affect the new federal-question jurisdiction. Post, at 142-150. But the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later makes the dissent's demand for greater specificity about a then-dormant jurisdiction overly exacting.[13] *71 In putting forward a new theory of state sovereign immunity, the dissent develops its own vision of the political system created by the Framers, concluding with the statement that "[t]he Framers' principal objectives in rejecting English theories of unitary sovereignty . . . would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held untouchable by any congressional effort to abrogate it."[14]Post, at 157. This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court. And Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts.[15] *72 In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.[16] The Eleventh Amendment restricts the *73 judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction. III Petitioner argues that we may exercise jurisdiction over its suit to enforce § 2710(d)(3) against the Governor notwithstanding the jurisdictional bar of the Eleventh Amendment. Petitioner notes that since our decision in Ex parte Young, 209 U.S. 123 (1908), we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to "end a continuing violation of federal law." Green v. Mansour , 474 U. S., at 68. The situation presented here, however, is sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine. Here, the "continuing violation of federal law" alleged by petitioner is the Governor's failure to bring the State into compliance with § 2710(d)(3). But the duty to negotiate imposed upon the State by that statutory provision does not stand alone. Rather, as we have seen, supra, at 49-50, Congress passed § 2710(d)(3) in conjunction with the carefully *74 crafted and intricate remedial scheme set forth in § 2710(d)(7). Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary. Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) ("When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional . . . remedies"). Here, of course, the question is not whether a remedy should be created, but instead is whether the Eleventh Amendment bar should be lifted, as it was in Ex parte Young, in order to allow a suit against a state officer. Nevertheless, we think that the same general principle applies: Therefore, where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young. Here, Congress intended § 2710(d)(3) to be enforced against the State in an action brought under § 2710(d)(7); the intricate procedures set forth in that provision show that Congress intended therein not only to define, but also to limit significantly, the duty imposed by § 2710(d)(3). For example, where the court finds that the State has failed to negotiate in good faith, the only remedy prescribed is an order directing the State and the Indian tribe to conclude a compact within 60 days. And if the parties disregard the court's order and fail to conclude a compact within the 60-day period, the only sanction is that each party then must submit a proposed compact to a mediator who selects the one which best embodies the terms of the Act. Finally, if the State fails to accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify the Secretary *75 of the Interior who then must prescribe regulations governing class III gaming on the tribal lands at issue. By contrast with this quite modest set of sanctions, an action brought against a state official under Ex parte Young would expose that official to the full remedial powers of a federal court, including, presumably, contempt sanctions. If § 2710(d)(3) could be enforced in a suit under Ex parte Young, § 2710(d)(7) would have been superfluous; it is difficult to see why an Indian tribe would suffer through the intricate scheme of § 2710(d)(7) when more complete and more immediate relief would be available under Ex parte Young.[17] Here, of course, we have found that Congress does not have authority under the Constitution to make the State suable in federal court under § 2710(d)(7). Nevertheless, the fact that Congress chose to impose upon the State a liability *76 that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter under § 2710(d)(3). Nor are we free to rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that § 2710(d)(7) was beyond its authority. If that effort is to be made, it should be made by Congress, and not by the federal courts. We hold that Ex parte Young is inapplicable to petitioner's suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed for a lack of jurisdiction. IV The Eleventh Amendment prohibits Congress from making the State of Florida capable of being sued in federal court. The narrow exception to the Eleventh Amendment provided by the Ex parte Young doctrine cannot be used to enforce § 2710(d)(3) because Congress enacted a remedial scheme, § 2710(d)(7), specifically designed for the enforcement of that right. The Eleventh Circuit's dismissal of petitioner's suit is hereby affirmed.[18] It is so ordered.

The Indian Gaming Regulatory Act provides that an Indian tribe may conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 25 U.S. C. 210(d)(1)(C). The Act, passed by Congress under the Indian Commerce Clause, U. S. Const., Art. I, 8, cl. 3,imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact, 210(d)(3)(A), and authorizes a tribe to bring suit in federal court against a State in order to compel performance of that duty, 210(d)(). We hold that notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore 210(d)() cannot grant jurisdiction over a State that does not consent to be sued. We further hold that the doctrine of Ex parte may not be used to enforce 210(d)(3) against a state official. * I Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U.S. C. 202. The Act divides gaming on Indian lands into three classes—I, II, and III—and provides a different regulatory scheme for each class. Class III gaming—the type with which we are here concerned—is defined as "all forms of gaming that are not class I gaming or class II gaming," 203(8), and includes such things as slot machines, casino games, banking card games, dog racing, and lotteries.[1] It is the most heavily regulated of the three classes. The Act provides that class III gaming is lawful only where it is: (1) authorized by an ordinance or resolution that (a) is adopted by the governing body of the Indian tribe, (b) satisfies certain statutorily prescribed requirements, and (c) is approved by the National Indian Gaming Commission; (2) located in a State that permits such gaming for any purpose by any person, organization, or entity; and (3) "conducted in conformance with a Tribal-State compact entered into by the *49 Indian tribe and the State under paragraph (3) that is in effect." 210(d)(1). The "paragraph (3)" to which the last prerequisite of 210(d)(1) refers is 210(d)(3), which describes the permissible scope of a Tribal-State compact, see 210(d)(3)(C), and provides that the compact is effective "only when notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register," 210(d)(3)(B). More significant for our purposes, however, is that 210(d)(3) describes the process by which a State and an Indian tribe begin negotiations toward a Tribal-State compact: "(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact." The State's obligation to "negotiate with the Indian tribe in good faith" is made judicially enforceable by 210(d) ()(A)(i) and (B)(i): "(A) The United States district courts shall have jurisdiction over— "(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith "(B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the *50 Indian tribe requested the State to enter into negotiations under paragraph (3)(A)." Sections 210(d)()(B)(ii)-(vii) describe an elaborate remedial scheme designed to ensure the formation of a Tribal-State compact. A tribe that brings an action under 210(d) ()(A)(i) must show that no Tribal-State compact has been entered and that the State failed to respond in good faith to the tribe's request to negotiate; at that point, the burden then shifts to the State to prove that it did in fact negotiate in good faith. 210(d)()(B)(ii). If the district court concludes that the State has failed to negotiate in good faith toward the formation of a Tribal-State compact, then it "shall order the State and Indian Tribe to conclude such a compact within a 60-day period." 210(d)()(B)(iii). If no compact has been concluded 60 days after the court's order, then "the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact." 210(d)() (B)(iv). The mediator chooses from between the two proposed compacts the one "which best comports with the terms of [the Act] and any other applicable Federal law and with the findings and order of the court," and submits it to the State and the Indian tribe, 210(d)()(B)(v). If the State consents to the proposed compact within 60 days of its submission by the mediator, then the proposed compact is "treated as a Tribal-State compact entered into under paragraph (3)." 210(d)()(B)(vi). If, however, the State does not consent within that 60-day period, then the Act provides that the mediator "shall notify the Secretary [of the Interior]" and that the Secretary "shall prescribe procedures. under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction." 210(d)()(B)(vii).[2] *51 In September 1991, the Seminole Tribe of Florida, petitioner, sued the State of Florida and its Governor, Lawton Chiles, respondents. Invoking jurisdiction under 25 U.S. C. *52 210(d)()(A), as well as 28 U.S. C. 1331 and 1362, petitioner alleged that respondents had "refused to enter into any negotiation for inclusion of [certain gaming activities] in a tribal-state compact," thereby violating the "requirement of good faith negotiation" contained in 210(d)(3). Petitioner's Complaint ¶ 24, see App. 18. Respondents moved to dismiss the complaint, arguing that the suit violated the State's sovereign immunity from suit in federal court. The District Court denied respondents' motion, and respondents took an interlocutory appeal of that decision. See Puerto Rico Aqueduct and Sewer The Court of Appeals for the Eleventh Circuit reversed the decision of the District Court, holding that the Eleventh Amendment barred petitioner's suit against respondents.[3] The court agreed with the District Court that Congress in 210(d)() intended to abrogate the States' sovereign immunity, and also agreed that the Act had been passed pursuant to Congress' power under the Indian Commerce Clause, U. S. Const., Art. I, 8, cl. 3. The court disagreed with the District Court, however, that the Indian *53 Commerce Clause grants Congress the power to abrogate a State's Eleventh Amendment immunity from suit, and concluded therefore that it had no jurisdiction over petitioner's suit against Florida. The court further held that Ex parte does not permit an Indian tribe to force good-faith negotiations by suing the Governor of a State. Finding that it lacked subject-matter jurisdiction, the Eleventh Circuit remanded to the District Court with directions to dismiss petitioner's suit.[4] Petitioner sought our review of the Eleventh Circuit's decision,[5] and we granted certiorari, in order to consider two questions: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte permit suits against a State's Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act? We answer the first question in the affirmative, the second in the negative, and we therefore affirm the Eleventh Circuit's dismissal of petitioner's suit.[6] *54 The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition. which it confirms." That presupposition, first observed over a century ago in has two parts: first, that each State is a sovereign entity in our federal system; and second, that "`[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,' " quoting The Federalist No. 81, p. (C. Rossiter ed. 1961) (A. Hamilton). See also Puerto Rico Aqueduct and Sewer For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States."[] *55 Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. See Petitioner nevertheless contends that its suit is not barred by state sovereign immunity. First, it argues that Congress through the Act abrogated the States' sovereign immunity. Alternatively, petitioner maintains that its suit against the Governor may go forward under Ex parte We consider each of those arguments in turn. II Petitioner argues that Congress through the Act abrogated the States' immunity from suit. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has "unequivocally expresse[d] its intent to abrogate the immunity," ; and second, whether Congress has acted "pursuant to a valid exercise of power," A Congress' intent to abrogate the States' immunity from suit must be obvious from "a clear legislative statement." This rule arises from a recognition of the important role played by the Eleventh Amendment *56 and the broader principles that it reflects. See State ; In we held that "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." ; see also n. 4 (emphases deleted). Rather, as we said in : "To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: `Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.' " See also 3 U.S. 4, Here, we agree with the parties, with the Eleventh Circuit in the decision and with virtually every other court that has confronted the question[8] that Congress has in 210(d)() provided an "unmistakably clear" statement of its intent to abrogate. Section 210(d)()(A)(i) *5 vests jurisdiction in "[t]he United States district courts over any cause of action arising from the failure of a State to enter into negotiations or to conduct such negotiations in good faith." Any conceivable doubt as to the identity of the defendant in an action under 210(d)()(A)(i) is dispelled when one looks to the various provisions of 210(d)()(B), which describe the remedial scheme available to a tribe that files suit under 210(d)()(A)(i). Section 210(d)()(B)(ii)(II) provides that if a suing tribe meets its burden of proof, then the "burden of proof shall be upon the State"; 210(d)()(B)(iii) states that if the court "finds that the State has failed to negotiate in good faith the court shall order the State"; 210(d)()(B)(iv) provides that "the State shall submit to a mediator appointed by the court" and subsection (B)(v) of 210(d)() states that the mediator "shall submit to the State." Sections 210(d) ()(B)(vi) and (vii) also refer to the "State" in a context that makes it clear that the State is the defendant to the suit brought by an Indian tribe under 210(d)()(A)(i). In sum, we think that the numerous references to the "State" in the text of 210(d)()(B) make it indubitable that Congress intended through the Act to abrogate the States' sovereign immunity from suit.[9] B Having concluded that Congress clearly intended to abrogate the States' sovereign immunity through 210(d)(), we *58 turn now to consider whether the Act was passed "pursuant to a valid exercise of power." U. S., at Before we address that question here, however, we think it necessary first to define the scope of our inquiry. Petitioner suggests that one consideration weighing in favor of finding the power to abrogate here is that the Act authorizes only prospective injunctive relief rather than retroactive monetary relief. But we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See, e. g., We think it follows a fortiori from this proposition that the type of relief sought is irrelevant to whether Congress has power to abrogate States' immunity. The Eleventh Amendment does not exist solely in order to "preven[t] federal-court judgments that must be paid out of a State's treasury," Hess v. Port Trans-Hudson Corporation, ; it also serves to avoid "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," Puerto Rico Aqueduct and Sewer 506 U. S., Similarly, petitioner argues that the abrogation power is validly exercised here because the Act grants the States a power that they would not otherwise have, viz., some measure of authority over gaming on Indian lands. It is true enough that the Act extends to the States a power withheld from them by the Constitution. See 0 U.S. 202 Nevertheless, we do not see how that consideration is relevant to the question whether Congress may abrogate state sovereign immunity. The Eleventh Amendment immunity may not be lifted by Congress unilaterally deciding that it will be replaced *59 by grant of some other authority. Cf. -24 Thus our inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e. g., Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. We noted that 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that 5 of the Amendment expressly provided that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." See We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment. In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. In a plurality of the Court found that the Interstate Commerce Clause, Art. I, 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages." -20. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express *60 that he "[did] not agree with much of [the plurality's] reasoning." In arguing that Congress through the Act abrogated the States' sovereign immunity, petitioner does not challenge the Eleventh Circuit's conclusion that the Act was passed pursuant to neither the Fourteenth Amendment nor the Interstate Commerce Clause. Instead, accepting the lower court's conclusion that the Act was passed pursuant to Congress' power under the Indian Commerce Clause, petitioner now asks us to consider whether that Clause grants Congress the power to abrogate the States' sovereign immunity. Petitioner begins with the plurality decision in Union and contends that "[t]here is no principled basis for finding that congressional power under the Indian Commerce Clause is less than that conferred by the Interstate Commerce Clause." Brief for Petitioner 1. Noting that the Union plurality found the power to abrogate from the "plenary" character of the grant of authority over interstate commerce, petitioner emphasizes that the Interstate Commerce Clause leaves the States with some power to regulate, see, e. g., West Lynn Creamery, whereas the Indian Commerce Clause makes "Indian relations the exclusive province of federal law." County of Contending that the Indian Commerce Clause vests the Federal Government with "the duty of protect[ing]" the tribes from "local ill feeling" and "the people of the States," United petitioner argues that the abrogation power is necessary "to protect the tribes from state action denying federally guaranteed rights." Brief for Petitioner 20. Respondents dispute petitioner's analogy between the Indian Commerce Clause and the Interstate Commerce Clause. They note that we have recognized that "the Interstate Commerce and Indian Commerce Clauses have very different *61 applications," Cotton Petroleum 4 U.S. 163, and from that they argue that the two provisions are "wholly dissimilar." Brief for Respondents 21. Respondents contend that the Interstate Commerce Clause grants the power of abrogation only because Congress' authority to regulate interstate commerce would be "incomplete" without that "necessary" power. citing Union The Indian Commerce Clause is distinguishable, respondents contend, because it gives Congress complete authority over the Indian tribes. Therefore, the abrogation power is not "necessary" to Congress' exercise of its power under the Indian Commerce Clause.[10] Both parties make their arguments from the plurality decision in Union and we, too, begin there. We think it clear that Justice Brennan's opinion finds Congress' power to abrogate under the Interstate Commerce Clause from the States' cession of their sovereignty when they gave Congress plenary power to regulate interstate commerce. See Union Respondents' focus elsewhere is misplaced. While the plurality decision states that Congress' power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress' authority over interstate commerce. Moreover, respondents' rationale would mean that where Congress has *62 less authority, and the States have more, Congress' means for exercising that power must be greater. We read the plurality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abrogate most necessary. ("Since the States may not legislate at all in [the aforementioned] situations, a conclusion that Congress may not create a cause of action for money damages against the States would mean that no one could do so. And in many situations, it is only money damages that will carry out Congress' legitimate objectives under the Commerce Clause"). Following the rationale of the Union plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union if the States' partial cession of authority over a particular area includes cession of the immunity from suit, then their virtually total cession of authority over a different area must also include cession of the immunity from suit. See ("[I]f the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers"); see Ponca Tribe of cert. pending, No. 94-1029; Cheyenne River Sioux ; cf. (After Union Copyright Clause, U. S. Const., Art. I, 8, cl. 8, must grant Congress power to abrogate). We agree with petitioner that the plurality opinion in Union allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause. Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abrogate the States' sovereign immunity. Instead, they contend that if we find the rationale of the Union plurality to extend to the Indian Commerce Clause, then "Union should be reconsidered and overruled." Brief for Respondents 25. Generally, the principle of stare decisis, and the interests that it serves, viz., "the evenhanded, predictable, and consistent development of legal principles, reliance on judicial decisions, and the actual and perceived integrity of the judicial process," counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated stare decisis as a "principle of policy," and not as an "inexorable command," "[W]hen governing decisions are unworkable or are badly reasoned, `this Court has never felt constrained to follow precedent.' " at ). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases `correction through legislative action is practically impossible.' " ). The Court in Union reached a result without an expressed rationale agreed upon by a majority of the Court. We have already that Justice Brennan's opinion received the support of only three other Justices. See Union Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality's rationale, (opinion concurring in judgment and dissenting in part), and four Justices joined together in a dissent that rejected the plurality's rationale, Since it was issued, Union has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision. See, e. g., Chavez v. Arte Publico ; (Justice White's "vague concurrence renders the continuing validity of Union in doubt"). The plurality's rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in See Union It was well established in 1989 when Union was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: "The Judicial power of the United States shall not be construed to extend to any suit" And our decisions since had been equally clear that the Eleventh Amendment reflects "the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Art. III," State School and ; see Union ("`[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given ` ") (Scalia, *65 J., dissenting) (quoting Ex parte New 256 U.S. 4, (1)); see also cases cited at n. As the dissent in Union recognized, the plurality's conclusion—that Congress could under Article I expand the scope of the federal courts' jurisdiction under Article III—"contradict[ed] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction." Union Never before the decision in Union had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. 1 Cranch 13 The plurality's citation of prior decisions for support was based upon what we believe to be a misreading of precedent. See Union -41 The plurality claimed support for its decision from a case holding the unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity, see at 14-15 ), and cited as precedent propositions that had been merely assumed for the sake of argument in earlier cases, see 491 U.S., (citing 3 U. S., at 45-46, and n. 5, and County of 40 U. S., at 252). The plurality's extended reliance upon our decision in that Congress could under the Fourteenth Amendment abrogate the States' sovereign immunity was also, we believe, misplaced. Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated *66 to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment. As the dissent in Union made clear, Fitzpatrick cannot be read to justify "limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution." Union In the five years since it was decided, Union has proved to be a solitary departure from established law. See Puerto Rico Aqueduct and Sewer Reconsidering the decision in Union we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. See 511 U.S. 38, 46 The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union and the plurality's rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union was wrongly decided and that it should be, and now is, overruled. The dissent makes no effort to defend the decision in Union see post, at 100, but nonetheless would find congressional power to abrogate in this case.[11] Contending that our decision is a novel extension of the Eleventh Amendment, the dissent chides us for "attend[ing]" to dicta. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the *6 Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. (19) (plurality); County of 492 U.S. 53, 6 (Kennedy, J., concurring and dissenting); Sheet Metal 48 U.S. 421, 4 (O'Connor, J., concurring). For over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment. In Principality of the Court held that the Eleventh Amendment barred a suit brought against a State by a foreign state. Chief Justice Hughes wrote for a unanimous Court: "[N]either the literal sweep of the words of Clause one of 2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclusion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. Thus Clause one specifically provides that the judicial Power shall extend `to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their' But, although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is * sought to be prosecuted against a State, without her consent, by one of her own citizens. "Manifestly, we cannot rest with a mere literal application of the words of 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a `surrender of this immunity in the plan of the convention.' " See ; see also ; Ex parte New 256 U. S., at ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given"). It is true that we have not had occasion previously to apply established Eleventh Amendment principles to the question whether Congress has the power to abrogate state sovereign immunity (save in Union ). But consideration of that question must proceed with fidelity to this century-old doctrine. The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since (other than Union ) that supports its view of state sovereign immunity, instead relying upon the now-discredited decision in (193). See, e. g., post, 2, n. 4. Its undocumented and highly speculative extralegal explanation of *69 the decision in is a disservice to the Court's traditional method of adjudication. See post, at 120-123. The dissent mischaracterizes the opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental "`jurisprudence in all civilized nations.' " 134 U. S., at 1, quoting 20 How. 52, ; see also The Federalist No. 81, p. (C. Rossiter ed. 1961) (A. Hamilton) (sovereign immunity "is the general sense and the general practice of mankind"). The dissent's proposition that the common law of England, where adopted by the States, was open to change by the Legislature is wholly unexceptionable and largely beside the point: that common law provided the substantive rules of law rather than jurisdiction. Cf. It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment. — with a much closer vantage point than the dissent—recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent's conclusion that the decision in Chisholm was "reasonable," post, at 106, certainly would have struck the Framers of the Eleventh Amendment as quite odd: That decision created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man—we long have recognized that blind reliance upon the text of the Eleventh Amendment is "`to strain the Constitution and the law to a construction never imagined or dreamed of.' " quoting The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not *0 have federal-question jurisdiction at the time the Amendment was passed (and would not have it until 185), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States. That same consideration causes the dissent's criticism of the views of Marshall, Madison, and Hamilton to ring hollow. The dissent cites statements made by those three influential Framers, the most natural reading of which would preclude all federal jurisdiction over an unconsenting State.[12] Struggling against this reading, however, the dissent finds significant the absence of any contention that sovereign immunity would affect the new federal-question jurisdiction. Post, at 142-150. But the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later makes the dissent's demand for greater specificity about a then-dormant jurisdiction overly exacting.[13] *1 In putting forward a new theory of state sovereign immunity, the dissent develops its own vision of the political system created by the Framers, concluding with the statement that "[t]he Framers' principal objectives in rejecting English theories of unitary sovereignty would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held untouchable by any congressional effort to abrogate it."[14]Post, This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court. And Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts.[15] *2 In overruling Union today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.[16] The Eleventh Amendment restricts the *3 judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction. III Petitioner argues that we may exercise jurisdiction over its suit to enforce 210(d)(3) against the Governor notwithstanding the jurisdictional bar of the Eleventh Amendment. Petitioner notes that since our decision in Ex parte we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to "end a continuing violation of federal law." U. S., at The situation presented here, however, is sufficiently different from that giving rise to the traditional Ex parte action so as to preclude the availability of that doctrine. Here, the "continuing violation of federal law" alleged by petitioner is the Governor's failure to bring the State into compliance with 210(d)(3). But the duty to negotiate imposed upon the State by that statutory provision does not stand alone. Rather, as we have Congress passed 210(d)(3) in conjunction with the carefully *4 crafted and intricate remedial scheme set forth in 210(d)(). Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary. U.S. 412, Here, of course, the question is not whether a remedy should be created, but instead is whether the Eleventh Amendment bar should be lifted, as it was in Ex parte in order to allow a suit against a state officer. Nevertheless, we think that the same general principle applies: Therefore, where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Here, Congress intended 210(d)(3) to be enforced against the State in an action brought under 210(d)(); the intricate procedures set forth in that provision show that Congress intended therein not only to define, but also to limit significantly, the duty imposed by 210(d)(3). For example, where the court finds that the State has failed to negotiate in good faith, the only remedy prescribed is an order directing the State and the Indian tribe to conclude a compact within 60 days. And if the parties disregard the court's order and fail to conclude a compact within the 60-day period, the only sanction is that each party then must submit a proposed compact to a mediator who selects the one which best embodies the terms of the Act. Finally, if the State fails to accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify the Secretary *5 of the Interior who then must prescribe regulations governing class III gaming on the tribal lands at issue. By contrast with this quite modest set of sanctions, an action brought against a state official under Ex parte would expose that official to the full remedial powers of a federal court, including, presumably, contempt sanctions. If 210(d)(3) could be enforced in a suit under Ex parte 210(d)() would have been superfluous; it is difficult to see why an Indian tribe would suffer through the intricate scheme of 210(d)() when more complete and more immediate relief would be available under Ex parte[1] Here, of course, we have found that Congress does not have authority under the Constitution to make the State suable in federal court under 210(d)(). Nevertheless, the fact that Congress chose to impose upon the State a liability *6 that is significantly more limited than would be the liability imposed upon the state officer under Ex parte strongly indicates that Congress had no wish to create the latter under 210(d)(3). Nor are we free to rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that 210(d)() was beyond its authority. If that effort is to be made, it should be made by Congress, and not by the federal courts. We hold that Ex parte is inapplicable to petitioner's suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed for a lack of jurisdiction. IV The Eleventh Amendment prohibits Congress from making the State of Florida capable of being sued in federal court. The narrow exception to the Eleventh Amendment provided by the Ex parte doctrine cannot be used to enforce 210(d)(3) because Congress enacted a remedial scheme, 210(d)(), specifically designed for the enforcement of that right. The Eleventh Circuit's dismissal of petitioner's suit is hereby affirmed.[18] It is so ordered.

Justice Stevens

dissenting

Seminole Tribe of Fla. v. Florida

1996-03-27

https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/

https://www.courtlistener.com/api/rest/v3/clusters/118011/

1995-037

This case is about power—the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right. In Chisholm v. Georgia, 2 Dall. 419 (1793), the entire Court—including Justice Iredell whose dissent provided the blueprint for the Eleventh Amendment—assumed that Congress had such power. In Hans v. Louisiana, 134 U.S. 1 (1890)—a case the Court purports to follow today—the Court *77 again assumed that Congress had such power. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U.S. 1, 24 (1989) (Stevens, J., concurring), the Court squarely held that Congress has such power. In a series of cases beginning with Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238-239 (1985), the Court formulated a special "clear statement rule" to determine whether specific Acts of Congress contained an effective exercise of that power. Nevertheless, in a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power. The importance of the majority's decision to overrule the Court's holding in Pennsylvania v. Union Gas Co. cannot be overstated. The majority's opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good-faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.[1] *78 There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress' authority in that regard is clear. As Justice Souter has convincingly demonstrated, the Court's contrary conclusion is profoundly misguided. Despite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority's affront to a coequal branch of our Government merits additional comment. I For the purpose of deciding this case, I can readily assume that Justice Iredell's dissent in Chisholm v. Georgia, 2 Dall., at 429-450, and the Court's opinion in Hans v. Louisiana, 134 U.S. 1 (1890), correctly stated the law that should govern our decision today. As I shall explain, both of those opinions relied on an interpretation of an Act of Congress rather than a want of congressional power to authorize a suit against the State. In concluding that the federal courts could not entertain Chisholm's action against the State of Georgia, Justice Iredell relied on the text of the Judiciary Act of 1789, not the State's assertion that Article III did not extend the judicial power to suits against unconsenting States. Justice Iredell argued that, under Article III, federal courts possessed only *79 such jurisdiction as Congress had provided, and that the Judiciary Act expressly limited federal-court jurisdiction to that which could be exercised in accordance with "`the principles and usages of law.' " Chisholm v. Georgia, 2 Dall., at 434 (quoting § 14 of the Judiciary Act of 1789). He reasoned that the inclusion of this phrase constituted a command to the federal courts to construe their jurisdiction in light of the prevailing common law, a background legal regime that he believed incorporated the doctrine of sovereign immunity. Chisholm v. Georgia, 2 Dall., at 434-436 (dissenting opinion).[2] Because Justice Iredell believed that the expansive text of Article III did not prevent Congress from imposing this common-law limitation on federal-court jurisdiction, he concluded that judges had no authority to entertain a suit against an unconsenting State.[3] At the same time, although he acknowledged that the Constitution might allow Congress to extend federal-court jurisdiction to such an action, he concluded that the terms of the Judiciary Act of 1789 plainly had not done so. "[Congress'] direction, I apprehend, we cannot supersede, because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own *80 discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of Courts of Justice, which the AttorneyGeneral in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join." Id., at 434 (emphasis added). For Justice Iredell then, it was enough to assume that Article III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State's immunity.[4] Thus, it would be ironic to construe the Chisholm dissent as precedent for the conclusion that Article III limits Congress' power to determine the scope of a State's sovereign immunity in federal court. The precise holding in Chisholm is difficult to state because each of the Justices in the majority wrote his own opinion. They seem to have held, however, not that the Judiciary Act of 1789 precluded the defense of sovereign immunity, but that Article III of the Constitution itself required the Supreme Court to entertain original actions *81 against unconsenting States.[5] I agree with Justice Iredell that such a construction of Article III is incorrect; that Article should not then have been construed, and should not now be construed, to prevent Congress from granting States a sovereign immunity defense in such cases.[6] That reading of Article III, however, explains why the majority's holding in Chisholm could not have been reversed by a simple statutory amendment adopting Justice Iredell's interpretation of the Judiciary Act of 1789. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today. In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm `s holding could have been overturned by simply amending the Constitution to restore to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases. In doing so, however, the Amendment's *82 quite explicit text establishes only a partial bar to a federal court's power to entertain a suit against a State.[7] Justice Brennan has persuasively explained that the Eleventh Amendment's jurisdictional restriction is best understood to apply only to suits premised on diversity jurisdiction, see Atascadero State Hospital v. Scanlon, 473 U. S., at 247 (dissenting opinion), and Justice Scalia has agreed that the plain text of the Amendment cannot be read to apply to federal-question cases. See Pennsylvania v. Union Gas, 491 U. S., at 31 (dissenting opinion).[8] Whatever the precise dimensions of the Amendment, its express terms plainly do not apply to all suits brought against unconsenting States.[9]*83 The question thus becomes whether the relatively modest jurisdictional bar that the Eleventh Amendment imposes should be understood to reveal that a more general jurisdictional bar implicitly inheres in Article III. The language of Article III certainly gives no indication that such an implicit bar exists. That provision's text specifically provides for federal-court jurisdiction over all cases arising under federal law. Moreover, as I have explained, Justice Iredell's dissent argued that it was the Judiciary Act of 1789, not Article III, that prevented the federal courts from entertaining Chisholm's diversity action against Georgia. Therefore, Justice Iredell's analysis at least suggests that it was by no means a fixed view at the time of the founding that Article III prevented Congress from rendering States suable in federal court by their own citizens. In sum, little more than speculation justifies the conclusion that the Eleventh Amendment's express but partial limitation on the scope of Article III reveals that an implicit but more general one was already in place. II The majority appears to acknowledge that one cannot deduce from either the text of Article III or the plain terms of *84 the Eleventh Amendment that the judicial power does not extend to a congressionally created cause of action against a State brought by one of that State's citizens. Nevertheless, the majority asserts that precedent compels that same conclusion. I disagree. The majority relies first on our decision in Hans v. Louisiana, 134 U.S. 1 (1890), which involved a suit by a citizen of Louisiana against that State for a claimed violation of the Contracts Clause. The majority suggests that by dismissing the suit, Hans effectively held that federal courts have no power to hear federal-question suits brought by same-state plaintiffs. Hans does not hold, however, that the Eleventh Amendment, or any other constitutional provision, precludes federal courts from entertaining actions brought by citizens against their own States in the face of contrary congressional direction. As I have explained before, see Pennsylvania v. Union Gas Co., 491 U. S., at 25-26 (Stevens, J., concurring), and as Justice Souter effectively demonstrates, Hans instead reflects, at the most, this Court's conclusion that, as a matter of federal common law, federal courts should decline to entertain suits against unconsenting States. Because Hans did not announce a constitutionally mandated jurisdictional bar, one need not overrule Hans, or even question its reasoning, in order to conclude that Congress may direct the federal courts to reject sovereign immunity in those suits not mentioned by the Eleventh Amendment. Instead, one need only follow it. Justice Bradley's somewhat cryptic opinion for the Court in Hans relied expressly on the reasoning of Justice Iredell's dissent in Chisholm, which, of course, was premised on the view that the doctrine of state sovereign immunity was a common-law rule that Congress had directed federal courts to respect, not a constitutional immunity that Congress was powerless to displace. For that reason, Justice Bradley explained that the State's immunity from suit by one of its own *85 citizens was based not on a constitutional rule but rather on the fact that Congress had not, by legislation, attempted to overcome the common-law presumption of sovereign immunity. His analysis so clearly supports the position rejected by the majority today that it is worth quoting at length. "But besides the presumption that no anomalous and unheard of proceedings or suits were intended to be raised up by the Constitution—anomalous and unheard of when the Constitution was adopted—an additional reason why the jurisdiction claimed for the Circuit Court does not exist, is the language of the act of Congress by which its jurisdiction is conferred. The words are these: `The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, . . . arising under the Constitution or laws of the United States, or treaties,' etc.—'Concurrent with the courts of the several States.' Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its courts with any new and strange jurisdictions? The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard." Hans v. Louisiana, 134 U. S., at 18-19. *86 As this passage demonstrates, Hans itself looked to see whether Congress had displaced the presumption that sovereign immunity obtains. Although the opinion did go to great lengths to establish the quite uncontroversial historical proposition that unconsenting States generally were not subject to suit, that entire discussion preceded the opinion's statutory analysis. See id., at 10-18. Thus, the opinion's thorough historical investigation served only to establish a presumption against jurisdiction that Congress must overcome, not an inviolable jurisdictional restriction that inheres in the Constitution itself. Indeed, the very fact that the Court characterized the doctrine of sovereign immunity as a "presumption" confirms its assumption that it could be displaced. The Hans Court's inquiry into congressional intent would have been wholly inappropriate if it had believed that the doctrine of sovereign immunity was a constitutionally inviolable jurisdictional limitation. Thus, Hans provides no basis for the majority's conclusion that Congress is powerless to make States suable in cases not mentioned by the text of the Eleventh Amendment. Instead, Hans provides affirmative support for the view that Congress may create federal-court jurisdiction over private causes of action against unconsenting States brought by their own citizens. It is true that the underlying jurisdictional statute involved in this case, 28 U.S. C. § 1331, does not itself purport to direct federal courts to ignore a State's sovereign immunity any more than did the underlying jurisdictional statute discussed in Hans, the Judiciary Act of 1875. However, unlike in Hans, in this case Congress has, by virtue of the Indian Gaming Regulatory Act, affirmatively manifested its intention to "invest its courts with" jurisdiction beyond the limits set forth in the general jurisdictional statute. 134 U.S., at 18. By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of 1875 constituted the sole indication as *87 to whether Congress intended federal-court jurisdiction to extend to a suit against an unconsenting State.[10] Given the nature of the cause of action involved in Hans, as well as the terms of the underlying jurisdictional statute, the Court's decision to apply the common-law doctrine of sovereign immunity in that case clearly should not control the outcome here. The reasons that may support a federal court's hesitancy to construe a judicially crafted constitutional remedy narrowly out of respect for a State's sovereignty do not bear on whether Congress may preclude a State's invocation of such a defense when it expressly establishes a federal remedy for the violation of a federal right. No one has ever suggested that Congress would be powerless to displace the other common-law immunity doctrines that this Court has recognized as appropriate defenses to certain federal claims such as the judicially fashioned remedy in Bivens v. Six Unknown Fed. Narcotics Agents, 403 *88 U. S. 388 (1971). See Mitchell v. Forsyth, 472 U.S. 511 (1985); Harlow v. Fitzgerald, 457 U.S. 800 (1982). Similarly, our cases recognizing qualified officer immunity in 42 U.S. C. § 1983 actions rest on the conclusion that, in passing that statute, Congress did not intend to displace the common-law immunity that officers would have retained under suits premised solely on the general jurisdictional statute. See Tower v. Glover, 467 U.S. 914, 920 (1984). For that reason, the federal common law of officer immunity that Congress meant to incorporate, not a contrary state immunity, applies in § 1983 cases. See Martinez v. California, 444 U.S. 277, 284 (1980). There is no reason why Congress' undoubted power to displace those common-law immunities should be either greater or lesser than its power to displace the common-law sovereign immunity defense. Some of our precedents do state that the sovereign immunity doctrine rests on fundamental constitutional "postulates" and partakes of jurisdictional aspects rooted in Article III. See ante, at 67-70. Most notably, that reasoning underlies this Court's holding in Principality of Monaco v. Mississippi, 292 U.S. 313 (1934). Monaco is a most inapt precedent for the majority's holding today. That case barred a foreign sovereign from suing a State in an equitable state-law action to recover payments due on state bonds. It did not, however, involve a claim based on federal law. Instead, the case concerned a purely state-law question to which the State had interposed a federal defense. Id., at 317. Thus, Monaco reveals little about the power of Congress to create a private federal cause of action to remedy a State's violation of federal law. Moreover, although Monaco attributes a quasiconstitutional status to sovereign immunity, even in cases not covered by the Eleventh Amendment's plain text, that characterization does not constitute precedent for the proposition that Congress is powerless to displace a State's immunity. *89 Our abstention doctrines have roots in both the Tenth Amendment and Article III, and thus may be said to rest on constitutional "postulates" or to partake of jurisdictional aspects. Yet it has not been thought that the Constitution would prohibit Congress from barring federal courts from abstaining. The majority offers no reason for making the federal common-law rule of sovereign immunity less susceptible to congressional displacement than any other quasijurisdictional common-law rule. In this regard, I note that Monaco itself analogized sovereign immunity to the prudential doctrine that "controversies" identified in Article III must be "justiciable" in order to be heard by federal courts. Id., at 329. The justiciability doctrine is a prudential rather than a jurisdictional one, and thus Congress' clearly expressed intention to create federal jurisdiction over a particular Article III controversy necessarily strips federal courts of the authority to decline jurisdiction on justiciability grounds. See Allen v. Wright, 468 U.S. 737, 791 (1984) (Stevens, J., dissenting); Flast Cohen, v. 392 U.S. 83, 100-101 (1968). For that reason, Monaco, by its own terms, fails to resolve the question before us.[11] More generally, it is quite startling to learn that the reasoning of Hans and Monaco (even assuming that it did not undermine the majority's view) should have a stare decisis effect on the question whether Congress possesses the authority to provide a federal forum for the vindication of a federal right by a citizen against its own State. In light of the Court's development of a "clear-statement" line of jurisprudence, *90 see, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238-239; Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96 (1989), I would have thought that Hans and Monaco had at least left open the question whether Congress could permit the suit we consider here. Our clear-statement cases would have been all but unintelligible if Hans and Monaco had already established that Congress lacked the constitutional power to make States suable in federal court by individuals no matter how clear its intention to do so.[12] Finally, the particular nature of the federal question involved in Hans renders the majority's reliance upon its rule even less defensible. Hans deduced its rebuttable presumption in favor of sovereign immunity largely on the basis of its extensive analysis of cases holding that the sovereign could not be forced to make good on its debts via a private suit. See Louisiana v. Jumel, 107 U.S. 711 (1883); Hagood v. Southern, 117 U.S. 52 (1886); In re Ayers, 123 U.S. 443 (1887). Because Hans, like these other cases, involved a suit that attempted to make a State honor its debt, its holding need not be read to stand even for the relatively limited proposition that there is a presumption in favor of sovereign immunity in all federal-question cases.[13] *91 In Hans, the plaintiff asserted a Contracts Clause claim against his State and thus asserted a federal right. To show that Louisiana had impaired its federal obligation, however, Hans first had to demonstrate that the State had entered into an enforceable contract as a matter of state law. That Hans chose to bring his claim in federal court as a Contract Clause action could not change the fact that he was, at bottom, seeking to enforce a contract with the State. See Burnham, Taming the Eleventh Amendment Without Overruling Hans v. Louisiana, 40 Case W. Res. L. Rev. 931 (1990). Because Hans' claimed federal right did not arise independently of state law, sovereign immunity was relevant to the threshold state-law question of whether a valid contract existed.[14]Hans expressly pointed out, however, that an individual who could show that he had an enforceable contract under state law would not be barred from bringing suit in federal court to prevent the State from impairing it. "To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subject of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be *92 judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment." Hans v. Louisiana, 134 U. S., at 20-21. That conclusion casts doubt on the absolutist view that Hans definitively establishes that Article III prohibits federal courts from entertaining federal-question suits brought against States by their own citizens. At the very least, Hans suggests that such suits may be brought to enjoin States from impairing existing contractual obligations. The view that the rule of Hans is more substantive than jurisdictional comports with Hamilton's famous discussion of sovereign immunity in The Federalist Papers. Hamilton offered his view that the federal judicial power would not extend to suits against unconsenting States only in the context of his contention that no contract with a State could be enforceable against the State's desire. He did not argue that a State's immunity from suit in federal court would be absolute. "[T]here is no color to pretend that the State governments would, by the adoption of [the plan of convention], be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." The Federalist No. 81, p. 488 (C. Rossiter ed. 1961). Here, of course, no question of a State's contractual obligations is presented. The Seminole Tribe's only claim is that the State of Florida has failed to fulfill a duty to negotiate that federal statutory law alone imposes. Neither the Federalist *93 Papers, nor Hans, provides support for the view that such a claim may not be heard in federal court. III In reaching my conclusion that the Constitution does not prevent Congress from making the State of Florida suable in federal court for violating one of its statutes, I emphasize that I agree with the majority that in all cases to which the judicial power does not extend—either because they are not within any category defined in Article III or because they are within the category withdrawn from Article III by the Eleventh Amendment—Congress lacks the power to confer jurisdiction on the federal courts. As I have previously insisted: "A statute cannot amend the Constitution." Pennsylvania v. Union Gas Co., 491 U. S., at 24. It was, therefore, misleading for the Court in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), to imply that § 5 of the Fourteenth Amendment authorized Congress to confer jurisdiction over cases that had been withdrawn from Article III by the Eleventh Amendment. Because that action had been brought by Connecticut citizens against officials of the State of Connecticut, jurisdiction was not precluded by the Eleventh Amendment. As Justice Brennan pointed out in his concurrence, the congressional authority to enact the provisions at issue in the case was found in the Commerce Clause and provided a sufficient basis for refusing to allow the State to "avail itself of the nonconstitutional but ancient doctrine of sovereign immunity." Id., at 457 (opinion concurring in judgment). In confronting the question whether a federal grant of jurisdiction is within the scope of Article III, as limited by the Eleventh Amendment, I see no reason to distinguish among statutes enacted pursuant to the power granted to Congress to regulate commerce among the several States, and with the Indian tribes, Art. I, § 8, cl. 3, the power to establish *94 uniform laws on the subject of bankruptcy, Art. I, § 8, cl. 4, the power to promote the progress of science and the arts by granting exclusive rights to authors and inventors, Art. I, § 8, cl. 8, the power to enforce the provisions of the Fourteenth Amendment, § 5, or indeed any other provision of the Constitution. There is no language anywhere in the constitutional text that authorizes Congress to expand the borders of Article III jurisdiction or to limit the coverage of the Eleventh Amendment. The Court's holdings in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), do unquestionably establish, however, that Congress has the power to deny the States and their officials the right to rely on the nonconstitutional defense of sovereign immunity in an action brought by one of their own citizens. As the opinions in the latter case demonstrate, there can be legitimate disagreement about whether Congress intended a particular statute to authorize litigation against a State. Nevertheless, the Court there squarely held that the Commerce Clause was an adequate source of authority for such a private remedy. In a rather novel rejection of the doctrine of stare decisis, the Court today demeans that holding by repeatedly describing it as a "plurality decision" because Justice White did not deem it necessary to set forth the reasons for his vote. As Justice Souter's opinion today demonstrates, the arguments in support of Justice White's position are so patent and so powerful that his actual vote should be accorded full respect. Indeed, far more significant than the "plurality" character of the three opinions supporting the holding in Union Gas is the fact that the issue confronted today has been squarely addressed by a total of 13 Justices, 8 of whom cast their votes with the so-called "plurality."[15] *95 The fundamental error that continues to lead the Court astray is its failure to acknowledge that its modern embodiment of the ancient doctrine of sovereign immunity "has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment." Id., at 25 (Stevens, J., concurring). It rests rather on concerns of federalism and comity that merit respect but are nevertheless, in cases such as the one before us, subordinate to the plenary power of Congress. IV As I noted above, for the purpose of deciding this case, it is not necessary to question the wisdom of the Court's decision in Hans v. Louisiana. Given the absence of precedent for the Court's dramatic application of the sovereign immunity doctrine today, it is nevertheless appropriate to identify the questionable heritage of the doctrine and to suggest that there are valid reasons for limiting, or even rejecting that doctrine altogether, rather than expanding it. Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine is entirely the product of judge-made law. Three features of its English ancestry make it particularly unsuitable for incorporation into the law of this democratic Nation. First, the assumption that it could be supported by a belief that "the King can do no wrong" has always been absurd; the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption. Even if the fiction had been acceptable in Britain, the recitation in the Declaration of Independence of the wrongs committed by George III made that proposition unacceptable on this side of the Atlantic. *96 Second, centuries ago the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclusive province of still higher authority.[16] While such a justification for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdiction where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church. Third, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation's principles. See Chisholm v. Georgia, 2 Dall., at 455. Moreover, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity. Cohens v. Virginia, 6 Wheat. 264, 406-407 (1821). Its purpose, he explained, was far more practical. "That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. . . . We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction *97 of the Court in those cases, because it might be essential to the preservation of peace." Ibid.[17] Nevertheless, this Court later put forth the interest in preventing "indignity" as the "very object and purpose of the [Eleventh] Amendment." In re Ayers, 123 U. S., at 505. That, of course, is an "embarrassingly insufficient" rationale for the rule. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 151 (1993) (Stevens, J., dissenting). Moreover, I find unsatisfying Justice Holmes' explanation that "[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). As I have explained before, Justice Holmes' justification fails in at least two respects. "First, it is nothing more than a restatement of the obvious proposition that a citizen may not sue the sovereign unless the sovereign has violated the citizen's legal rights. It cannot explain application of the immunity defense in cases like Chisholm, in which it is assumed that the plaintiff's rights have in fact been violated— and those cases are, of course, the only ones in which the immunity defense is needed. Second, Holmes's statement does not purport to explain why a general grant of jurisdiction to federal courts should not be treated as an adequate expression of the sovereign's consent to suits against itself as well as to suits against *98 ordinary litigants." Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1126 (1993). In sum, as far as its common-law ancestry is concerned, there is no better reason for the rule of sovereign immunity "than that so it was laid down in the time of Henry IV." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). That "reason" for the perpetuation of this ancient doctrine certainly cannot justify the majority's expansion of it. In this country the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Justice Holmes' explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the question whether Congress should be able to authorize a federal court to provide a private remedy for a State's violation of federal law. In my view, neither the majority's opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State's consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment's explicit text.[18] While I am persuaded that there is no justification for permanently enshrining the judge-made law of sovereign immunity, I recognize that federalism concerns—and even the interest *99 in protecting the solvency of the States that was at work in Chisholm and Hans —may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that timeworn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible. V Fortunately, and somewhat fortuitously, a jurisdictional problem that is unmentioned by the Court may deprive its opinion of precedential significance. The Indian Gaming Regulatory Act establishes a unique set of procedures for resolving the dispute between the Tribe and the State. If each adversary adamantly adheres to its understanding of the law, if the District Court determines that the State's inflexibility constitutes a failure to negotiate in good faith, and if the State thereafter continues to insist that it is acting within its rights, the maximum sanction that the Court can impose is an order that refers the controversy to a member of the Executive Branch of the Government for resolution. 25 U.S. C. § 2710(d)(7)(B). As the Court of Appeals interpreted the Act, this final disposition is available even though the action against the State and its Governor may not be maintained. 11 F.3d 1016, 1029 (CA11 1994). (The Court does not tell us whether it agrees or disagrees with that disposition.) In my judgment, it is extremely doubtful that the obviously dispensable involvement of the judiciary in the intermediate stages of a procedure that begins and ends in the Executive Branch is a proper exercise of judicial power. See Gordon v. United States, 117 U. S. Appx. 697, 702-703 (1864) (opinion of Taney, C. J.); United States v. Ferreira, 13 How. 40, 48 (1852). It may well follow that the misguided opinion of today's majority has nothing more than an advisory character. Whether or not that be so, the better reasoning *100 in Justice Souter's far wiser and far more scholarly opinion will surely be the law one day. For these reasons, as well as those set forth in Justice Souter's opinion, I respectfully dissent.

This case is about power—the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right. In the entire Court—including Justice Iredell whose dissent provided the blueprint for the Eleventh Amendment—assumed that Congress had such power. In —a case the Court purports to follow today—the Court *77 again assumed that Congress had such power. In and the Court squarely held that Congress has such power. In a series of cases beginning with Atascadero State the Court formulated a special "clear statement rule" to determine whether specific Acts of Congress contained an effective exercise of that power. Nevertheless, in a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power. The importance of the majority's decision to overrule the Court's holding in cannot be overstated. The majority's opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good-faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.[1] *78 There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress' authority in that regard is clear. As Justice Souter has convincingly demonstrated, the Court's contrary conclusion is profoundly misguided. Despite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority's affront to a coequal branch of our Government merits additional comment. I For the purpose of deciding this case, I can readily assume that Justice Iredell's dissent in -450, and the Court's opinion in correctly stated the law that should govern our decision today. As I shall explain, both of those opinions relied on an interpretation of an Act of Congress rather than a want of congressional power to authorize a suit against the State. In concluding that the federal courts could not entertain Chisholm's action against the State of Justice Iredell relied on the text of the Judiciary Act of 1789, not the State's assertion that Article III did not extend the judicial power to suits against unconsenting States. Justice Iredell argued that, under Article III, federal courts possessed only *79 such jurisdiction as Congress had provided, and that the Judiciary Act expressly limited federal-court jurisdiction to that which could be exercised in accordance with "`the principles and usages of law.' " (quoting 14 of the Judiciary Act of 1789). He reasoned that the inclusion of this phrase constituted a command to the federal courts to construe their jurisdiction in light of the prevailing common law, a background legal regime that he believed incorporated the doctrine of sovereign immunity. -436[2] Because Justice Iredell believed that the expansive text of Article III did not prevent Congress from imposing this common-law limitation on federal-court jurisdiction, he concluded that judges had no authority to entertain a suit against an unconsenting State.[3] At the same time, although he acknowledged that the Constitution might allow Congress to extend federal-court jurisdiction to such an action, he concluded that the terms of the Judiciary Act of 1789 plainly had not done so. "[Congress'] direction, I apprehend, we cannot supersede, because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own *80 discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of Courts of Justice, which the AttorneyGeneral in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join." For Justice Iredell then, it was enough to assume that Article III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State's immunity.[4] Thus, it would be ironic to construe the Chisholm dissent as precedent for the conclusion that Article III limits Congress' power to determine the scope of a State's sovereign immunity in federal court. The precise holding in Chisholm is difficult to state because each of the Justices in the majority wrote his own opinion. They seem to have held, however, not that the Judiciary Act of 1789 precluded the defense of sovereign immunity, but that Article III of the Constitution itself required the Supreme Court to entertain original actions *81 against unconsenting States.[5] I agree with Justice Iredell that such a construction of Article III is incorrect; that Article should not then have been construed, and should not now be construed, to prevent Congress from granting States a sovereign immunity defense in such cases.[6] That reading of Article III, however, explains why the majority's holding in Chisholm could not have been reversed by a simple statutory amendment adopting Justice Iredell's interpretation of the Judiciary Act of 1789. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today. In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm `s holding could have been overturned by simply amending the Constitution to restore to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases. In doing so, however, the Amendment's *82 quite explicit text establishes only a partial bar to a federal court's power to entertain a suit against a State.[7] Justice Brennan has persuasively explained that the Eleventh Amendment's jurisdictional restriction is best understood to apply only to suits premised on diversity jurisdiction, see Atascadero State 473 U. S., at 7 and Justice Scalia has agreed that the plain text of the Amendment cannot be read to apply to federal-question cases. See Pennsylvania v. Union[8] Whatever the precise dimensions of the Amendment, its express terms plainly do not apply to all suits brought against unconsenting States.[9]*83 The question thus becomes whether the relatively modest jurisdictional bar that the Eleventh Amendment imposes should be understood to reveal that a more general jurisdictional bar implicitly inheres in Article III. The language of Article III certainly gives no indication that such an implicit bar exists. That provision's text specifically provides for federal-court jurisdiction over all cases arising under federal law. Moreover, as I have explained, Justice Iredell's dissent argued that it was the Judiciary Act of 1789, not Article III, that prevented the federal courts from entertaining Chisholm's diversity action against Therefore, Justice Iredell's analysis at least suggests that it was by no means a fixed view at the time of the founding that Article III prevented Congress from rendering States suable in federal court by their own citizens. In sum, little more than speculation justifies the conclusion that the Eleventh Amendment's express but partial limitation on the scope of Article III reveals that an implicit but more general one was already in place. II The majority appears to acknowledge that one cannot deduce from either the text of Article III or the plain terms of *84 the Eleventh Amendment that the judicial power does not extend to a congressionally created cause of action against a State brought by one of that State's citizens. Nevertheless, the majority asserts that precedent compels that same conclusion. I disagree. The majority relies first on our decision in which involved a suit by a citizen of against that State for a claimed violation of the Contracts Clause. The majority suggests that by dismissing the suit, Hans effectively held that federal courts have no power to hear federal-question suits brought by same-state plaintiffs. Hans does not hold, however, that the Eleventh Amendment, or any other constitutional provision, precludes federal courts from entertaining actions brought by citizens against their own States in the face of contrary congressional direction. As I have explained before, see -26 and as Justice Souter effectively demonstrates, Hans instead reflects, at the most, this Court's conclusion that, as a matter of federal common law, federal courts should decline to entertain suits against unconsenting States. Because Hans did not announce a constitutionally mandated jurisdictional bar, one need not overrule Hans, or even question its reasoning, in order to conclude that Congress may direct the federal courts to reject sovereign immunity in those suits not mentioned by the Eleventh Amendment. Instead, one need only follow it. Justice Bradley's somewhat cryptic opinion for the Court in Hans relied expressly on the reasoning of Justice Iredell's dissent in Chisholm, which, of course, was premised on the view that the doctrine of state sovereign immunity was a common-law rule that Congress had directed federal courts to respect, not a constitutional immunity that Congress was powerless to displace. For that reason, Justice Bradley explained that the State's immunity from suit by one of its own *85 citizens was based not on a constitutional rule but rather on the fact that Congress had not, by legislation, attempted to overcome the common-law presumption of sovereign immunity. His analysis so clearly supports the position rejected by the majority today that it is worth quoting at length. "But besides the presumption that no anomalous and unheard of proceedings or suits were intended to be raised up by the Constitution—anomalous and unheard of when the Constitution was adopted—an additional reason why the jurisdiction claimed for the Circuit Court does not exist, is the language of the act of Congress by which its jurisdiction is conferred. The words are these: `The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, arising under the Constitution or laws of the United States, or treaties,' etc.—'Concurrent with the courts of the several States.' Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its courts with any new and strange jurisdictions? The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of 1789, which was before the court in and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard." -19. *86 As this passage demonstrates, Hans itself looked to see whether Congress had displaced the presumption that sovereign immunity obtains. Although the opinion did go to great lengths to establish the quite uncontroversial historical proposition that unconsenting States generally were not subject to suit, that entire discussion preceded the opinion's statutory analysis. See Thus, the opinion's thorough historical investigation served only to establish a presumption against jurisdiction that Congress must overcome, not an inviolable jurisdictional restriction that inheres in the Constitution itself. Indeed, the very fact that the Court characterized the doctrine of sovereign immunity as a "presumption" confirms its assumption that it could be displaced. The Hans Court's inquiry into congressional intent would have been wholly inappropriate if it had believed that the doctrine of sovereign immunity was a constitutionally inviolable jurisdictional limitation. Thus, Hans provides no basis for the majority's conclusion that Congress is powerless to make States suable in cases not mentioned by the text of the Eleventh Amendment. Instead, Hans provides affirmative support for the view that Congress may create federal-court jurisdiction over private causes of action against unconsenting States brought by their own citizens. It is true that the underlying jurisdictional statute involved in this case, 28 U.S. C. 1331, does not itself purport to direct federal courts to ignore a State's sovereign immunity any more than did the underlying jurisdictional statute discussed in Hans, the Judiciary Act of 1875. However, unlike in Hans, in this case Congress has, by virtue of the Indian Gaming Regulatory Act, affirmatively manifested its intention to "invest its courts with" jurisdiction beyond the limits set forth in the general jurisdictional By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of 1875 constituted the sole indication as *87 to whether Congress intended federal-court jurisdiction to extend to a suit against an unconsenting State.[10] Given the nature of the cause of action involved in Hans, as well as the terms of the underlying jurisdictional statute, the Court's decision to apply the common-law doctrine of sovereign immunity in that case clearly should not control the outcome here. The reasons that may support a federal court's hesitancy to construe a judicially crafted constitutional remedy narrowly out of respect for a State's sovereignty do not bear on whether Congress may preclude a State's invocation of such a defense when it expressly establishes a federal remedy for the violation of a federal right. No one has ever suggested that Congress would be powerless to displace the other common-law immunity doctrines that this Court has recognized as appropriate defenses to certain federal claims such as the judicially fashioned remedy in See ; Similarly, our cases recognizing qualified officer immunity in 42 U.S. C. 1983 actions rest on the conclusion that, in passing that statute, Congress did not intend to displace the common-law immunity that officers would have retained under suits premised solely on the general jurisdictional See For that reason, the federal common law of officer immunity that Congress meant to incorporate, not a contrary state immunity, applies in 1983 cases. See There is no reason why Congress' undoubted power to displace those common-law immunities should be either greater or lesser than its power to displace the common-law sovereign immunity defense. Some of our precedents do state that the sovereign immunity doctrine rests on fundamental constitutional "postulates" and partakes of jurisdictional aspects rooted in Article III. See ante, at 67-70. Most notably, that reasoning underlies this Court's holding in Principality of Monaco is a most inapt precedent for the majority's holding today. That case barred a foreign sovereign from suing a State in an equitable state-law action to recover payments due on state bonds. It did not, however, involve a claim based on federal law. Instead, the case concerned a purely state-law question to which the State had interposed a federal defense. Thus, Monaco reveals little about the power of Congress to create a private federal cause of action to remedy a State's violation of federal law. Moreover, although Monaco attributes a quasiconstitutional status to sovereign immunity, even in cases not covered by the Eleventh Amendment's plain text, that characterization does not constitute precedent for the proposition that Congress is powerless to displace a State's immunity. *89 Our abstention doctrines have roots in both the Tenth Amendment and Article III, and thus may be said to rest on constitutional "postulates" or to partake of jurisdictional aspects. Yet it has not been thought that the Constitution would prohibit Congress from barring federal courts from abstaining. The majority offers no reason for making the federal common-law rule of sovereign immunity less susceptible to congressional displacement than any other quasijurisdictional common-law rule. In this regard, I note that Monaco itself analogized sovereign immunity to the prudential doctrine that "controversies" identified in Article III must be "justiciable" in order to be heard by federal courts. The justiciability doctrine is a prudential rather than a jurisdictional one, and thus Congress' clearly expressed intention to create federal jurisdiction over a particular Article III controversy necessarily strips federal courts of the authority to decline jurisdiction on justiciability grounds. See ; Flast For that reason, Monaco, by its own terms, fails to resolve the question before us.[11] More generally, it is quite startling to learn that the reasoning of Hans and Monaco (even assuming that it did not undermine the majority's view) should have a stare decisis effect on the question whether Congress possesses the authority to provide a federal forum for the vindication of a federal right by a citizen against its own State. In light of the Court's development of a "clear-statement" line of jurisprudence, *90 see, e. g., Atascadero State 473 U. S., at ; I would have thought that Hans and Monaco had at least left open the question whether Congress could permit the suit we consider here. Our clear-statement cases would have been all but unintelligible if Hans and Monaco had already established that Congress lacked the constitutional power to make States suable in federal court by individuals no matter how clear its intention to do so.[12] Finally, the particular nature of the federal question involved in Hans renders the majority's reliance upon its rule even less defensible. Hans deduced its rebuttable presumption in favor of sovereign immunity largely on the basis of its extensive analysis of cases holding that the sovereign could not be forced to make good on its debts via a private suit. See v. Jumel, ; ; In re Because Hans, like these other cases, involved a suit that attempted to make a State honor its debt, its holding need not be read to stand even for the relatively limited proposition that there is a presumption in favor of sovereign immunity in all federal-question cases.[13] *91 In Hans, the plaintiff asserted a Contracts Clause claim against his State and thus asserted a federal right. To show that had impaired its federal obligation, however, Hans first had to demonstrate that the State had entered into an enforceable contract as a matter of state law. That Hans chose to bring his claim in federal court as a Contract Clause action could not change the fact that he was, at bottom, seeking to enforce a contract with the State. See Burnham, Taming the Eleventh Amendment Without Overruling Because Hans' claimed federal right did not arise independently of state law, sovereign immunity was relevant to the threshold state-law question of whether a valid contract existed.[14]Hans expressly pointed out, however, that an individual who could show that he had an enforceable contract under state law would not be barred from bringing suit in federal court to prevent the State from impairing it. "To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subject of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be *92 judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment." -21. That conclusion casts doubt on the absolutist view that Hans definitively establishes that Article III prohibits federal courts from entertaining federal-question suits brought against States by their own citizens. At the very least, Hans suggests that such suits may be brought to enjoin States from impairing existing contractual obligations. The view that the rule of Hans is more substantive than jurisdictional comports with Hamilton's famous discussion of sovereign immunity in The Federalist Papers. Hamilton offered his view that the federal judicial power would not extend to suits against unconsenting States only in the context of his contention that no contract with a State could be enforceable against the State's desire. He did not argue that a State's immunity from suit in federal court would be absolute. "[T]here is no color to pretend that the State governments would, by the adoption of [the plan of convention], be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." The Federalist No. 81, p. 8 (C. Rossiter ed. 1961). Here, of course, no question of a State's contractual obligations is presented. The Seminole Tribe's only claim is that the State of Florida has failed to fulfill a duty to negotiate that federal statutory law alone imposes. Neither the Federalist *93 Papers, nor Hans, provides support for the view that such a claim may not be heard in federal court. III In reaching my conclusion that the Constitution does not prevent Congress from making the State of Florida suable in federal court for violating one of its statutes, I emphasize that I agree with the majority that in all cases to which the judicial power does not extend—either because they are not within any category defined in Article III or because they are within the category withdrawn from Article III by the Eleventh Amendment—Congress lacks the power to confer jurisdiction on the federal courts. As I have previously insisted: "A statute cannot amend the Constitution." 491 U. S., at It was, therefore, misleading for the Court in to imply that 5 of the Fourteenth Amendment authorized Congress to confer jurisdiction over cases that had been withdrawn from Article III by the Eleventh Amendment. Because that action had been brought by Connecticut citizens against officials of the State of Connecticut, jurisdiction was not precluded by the Eleventh Amendment. As Justice Brennan pointed out in his concurrence, the congressional authority to enact the provisions at issue in the case was found in the Commerce Clause and provided a sufficient basis for refusing to allow the State to "avail itself of the nonconstitutional but ancient doctrine of sovereign immunity." In confronting the question whether a federal grant of jurisdiction is within the scope of Article III, as limited by the Eleventh Amendment, I see no reason to distinguish among statutes enacted pursuant to the power granted to Congress to regulate commerce among the several States, and with the Indian tribes, Art. I, 8, cl. 3, the power to establish *94 uniform laws on the subject of bankruptcy, Art. I, 8, cl. 4, the power to promote the progress of science and the arts by granting exclusive rights to authors and inventors, Art. I, 8, cl. 8, the power to enforce the provisions of the Fourteenth Amendment, 5, or indeed any other provision of the Constitution. There is no language anywhere in the constitutional text that authorizes Congress to expand the borders of Article III jurisdiction or to limit the coverage of the Eleventh Amendment. The Court's holdings in and do unquestionably establish, however, that Congress has the power to deny the States and their officials the right to rely on the nonconstitutional defense of sovereign immunity in an action brought by one of their own citizens. As the opinions in the latter case demonstrate, there can be legitimate disagreement about whether Congress intended a particular statute to authorize litigation against a State. Nevertheless, the Court there squarely held that the Commerce Clause was an adequate source of authority for such a private remedy. In a rather novel rejection of the doctrine of stare decisis, the Court today demeans that holding by repeatedly describing it as a "plurality decision" because Justice White did not deem it necessary to set forth the reasons for his vote. As Justice Souter's opinion today demonstrates, the arguments in support of Justice White's position are so patent and so powerful that his actual vote should be accorded full respect. Indeed, far more significant than the "plurality" character of the three opinions supporting the holding in Union is the fact that the issue confronted today has been squarely addressed by a total of 13 Justices, 8 of whom cast their votes with the so-called "plurality."[15] *95 The fundamental error that continues to lead the Court astray is its failure to acknowledge that its modern embodiment of the ancient doctrine of sovereign immunity "has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment." It rests rather on concerns of federalism and comity that merit respect but are nevertheless, in cases such as the one before us, subordinate to the plenary power of Congress. IV As I noted above, for the purpose of deciding this case, it is not necessary to question the wisdom of the Court's decision in Given the absence of precedent for the Court's dramatic application of the sovereign immunity doctrine today, it is nevertheless appropriate to identify the questionable heritage of the doctrine and to suggest that there are valid reasons for limiting, or even rejecting that doctrine altogether, rather than expanding it. Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine is entirely the product of judge-made law. Three features of its English ancestry make it particularly unsuitable for incorporation into the law of this democratic Nation. First, the assumption that it could be supported by a belief that "the King can do no wrong" has always been absurd; the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption. Even if the fiction had been acceptable in Britain, the recitation in the Declaration of Independence of the wrongs committed by George III made that proposition unacceptable on this side of the Atlantic. *96 Second, centuries ago the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclusive province of still higher authority.[16] While such a justification for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdiction where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church. Third, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation's principles. See Moreover, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity. Its purpose, he explained, was far more practical. "That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction *97 of the Court in those cases, because it might be essential to the preservation of peace." Ibid.[17] Nevertheless, this Court later put forth the interest in preventing "indignity" as the "very object and purpose of the [Eleventh] Amendment." In re That, of course, is an "embarrassingly insufficient" rationale for the rule. See Puerto Rico Aqueduct and Sewer Moreover, I find unsatisfying Justice Holmes' explanation that "[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." As I have explained before, Justice Holmes' justification fails in at least two respects. "First, it is nothing more than a restatement of the obvious proposition that a citizen may not sue the sovereign unless the sovereign has violated the citizen's legal rights. It cannot explain application of the immunity defense in cases like Chisholm, in which it is assumed that the plaintiff's rights have in fact been violated— and those cases are, of course, the only ones in which the immunity defense is needed. Second, Holmes's statement does not purport to explain why a general grant of jurisdiction to federal courts should not be treated as an adequate expression of the sovereign's consent to suits against itself as well as to suits against *98 ordinary litigants." Stevens, Is Justice Irrelevant?, In sum, as far as its common-law ancestry is concerned, there is no better reason for the rule of sovereign immunity "than that so it was laid down in the time of Henry IV." Holmes, The Path of the Law, That "reason" for the perpetuation of this ancient doctrine certainly cannot justify the majority's expansion of it. In this country the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Justice Holmes' explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the question whether Congress should be able to authorize a federal court to provide a private remedy for a State's violation of federal law. In my view, neither the majority's opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State's consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment's explicit text.[18] While I am persuaded that there is no justification for permanently enshrining the judge-made law of sovereign immunity, I recognize that federalism concerns—and even the interest *99 in protecting the solvency of the States that was at work in Chisholm and Hans —may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that timeworn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible. V Fortunately, and somewhat fortuitously, a jurisdictional problem that is unmentioned by the Court may deprive its opinion of precedential significance. The Indian Gaming Regulatory Act establishes a unique set of procedures for resolving the dispute between the Tribe and the State. If each adversary adamantly adheres to its understanding of the law, if the District Court determines that the State's inflexibility constitutes a failure to negotiate in good faith, and if the State thereafter continues to insist that it is acting within its rights, the maximum sanction that the Court can impose is an order that refers the controversy to a member of the Executive Branch of the Government for resolution. 25 U.S. C. 2710(d)(7)(B). As the Court of Appeals interpreted the Act, this final disposition is available even though the action against the State and its Governor may not be maintained. (The Court does not tell us whether it agrees or disagrees with that disposition.) In my judgment, it is extremely doubtful that the obviously dispensable involvement of the judiciary in the intermediate stages of a procedure that begins and ends in the Executive Branch is a proper exercise of judicial power. See Gordon v. United States, 117 U. S. Appx. 697, 702-703 (1864) (opinion of Taney, C. J.); United It may well follow that the misguided opinion of today's majority has nothing more than an advisory character. Whether or not that be so, the better reasoning *100 in Justice Souter's far wiser and far more scholarly opinion will surely be the law one day. For these reasons, as well as those set forth in Justice Souter's opinion, I respectfully dissent.

Justice Souter

second_dissenting

Seminole Tribe of Fla. v. Florida

1996-03-27

https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/

https://www.courtlistener.com/api/rest/v3/clusters/118011/

1995-037

In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice Stevens in his concurring opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989). There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Hans v. Louisiana, 134 U.S. 1 (1890). Justice Stevens saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was also the holding in Union Gas, which the Court now overrules and repudiates. The fault I find with the majority today is not in its decision to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting congressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamentally mistaken, and for that reason I respectfully dissent. *101 I It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress. The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction;[1] there was no unanimity, but in due course the Court in Chisholm v. Georgia, 2 Dall. 419 (1793), answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases. The adoption of the Eleventh Amendment soon changed the result in Chisholm, not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the *102 Eleventh Amendment did not affect federal-question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of Hans `s holding that States did enjoy sovereign immunity in federal-question suits. The Hans Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of Hans `s reasoning is underscored by its clear inconsistency with the Founders' hostility to the implicit reception of common-law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives. The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal system, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again. Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the Hans doctrine to be outside the reach of Congress, but must also displace the doctrine of Ex parte Young, 209 U.S. 123 (1908), that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing Young `s jurisdictional doctrine withstand scrutiny. A The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is *103 not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 3-4 (1963).[2] The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages. "At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts." C. Jacobs, Eleventh Amendment and Sovereign Immunity 5 (1972). See also 3 W. Blackstone, Commentaries *244-*245; Jaffe, supra, at 2 ("By the time of Bracton (1268) it was settled doctrine that the King could not be sued eo nomine in his own courts"). The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, Jacobs, supra, at 6-7, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1895-1899 (1983). *104 Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515, 536-538 (1977). The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article III. And although the jurisdictional bases together constituting the judicial power of the national courts under § 2 of Article III included questions arising under federal law and cases between States *105 and individuals who are not citizens,[3] it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.[4] Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, at 142-150; for now it is enough to say that there was no consensus on the issue. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 263-280 (1985) (Brennan, J., dissenting); Nevada v. Hall, 440 U.S. 410, 419 (1979); Jacobs, supra, at 40 ("[T]he legislative history of the Constitution hardly warrants the conclusion drawn by some that there was a general understanding, at the time of ratification, that the states would retain their sovereign immunity"). There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was also clear: the *106 debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article III would not alter States' pre-existing common-law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article III or any other provision would "constitutionalize" state sovereign immunity, and no one uttered any such contention. B The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in Chisholm v. Georgia, 2 Dall. 419 (1793), chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt.[5] The case also settled, by implication, *107 any question there could possibly have been about recognizing state sovereign immunity in actions depending on the federal question (or "arising under") head of jurisdiction *108 as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of Chisholm any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article III than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v Louisiana, 57 U. Chi. L. Rev. 1260, 1270 (1990). Although Justice Iredell's dissent in Chisholm seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, Chisholm, supra, at 434-435, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, at 78-81, Justice Iredell's dissent focused on the construction of the Judiciary Act of 1789, not Article III. See also Orth, The Truth About Justice Iredell's Dissent in Chisholm v. Georgia (1793), 73 N. C. L. Rev. 255 (1994). This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." 2 Dall., at 435 (emphasis deleted). While in at least some circumstances States might be held liable to "the authority of the United States," id., at 436, any such liability *109 would depend upon "laws passed under the Constitution and in conformity to it," ibid.[6] Finding no congressional action abrogating Georgia's common-law immunity, Justice Iredell concluded that the State should not be liable to suit.[7] C The Eleventh Amendment, of course, repudiated Chisholm and clearly divested federal courts of some jurisdiction as to cases against state parties: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity *110 Clauses of Article III for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court's view in today's case, but we need to choose between the competing readings for the light that will be shed on the Hans doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do. The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses.[8] In precisely tracking the language in Article III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common *111 sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federalquestion suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post-Chisholm proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect: "[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States." Gazette of the United States 303 (Feb. 20, 1793). With its references to suits by citizens as well as noncitizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would "arise under" that Treaty and thus be subject to federal-question jurisdiction under Article III. Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant mansion. 5 Documentary History of the Supreme Court of the United States, 1789-1800, pp. 352-449 (M. Marcus ed. 1994).[9] *112 Congress took no action on Sedgwick's proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal-question jurisdiction, or it would never have left the States open to federal-question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from selling their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Eleventh Amendment had meant it to immunize States from federal-question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261, 1280-1282 (1989). It should accordingly come as no surprise that the weightiest commentary following the Amendment's adoption described it simply as constricting the scope of the CitizenState Diversity Clauses. In Cohens v. Virginia, 6 Wheat. 264 (1821), for instance, Chief Justice Marshall, writing for the Court, emphasized that the Amendment had no effect on federal courts' jurisdiction grounded on the "arising under" provision of Article III and concluded that "a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case." Id., at 383. The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, *113 not "to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation." Id., at 407. The treatment of the Amendment in Osborn v. Bank of United States, 9 Wheat. 738 (1824), was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. Id., at 847. The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction.[10] And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a *114 private plaintiff for money damages. See, e. g., Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983). The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship. See Atascadero State Hospital v. Scanlon, 473 U. S., at 294 (Brennan, J., dissenting); Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1, 44 (1988). In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with this Court's practice, with the views of John Marshall, with the history of the Amendment's drafting, and with its allusive language. Today's majority does not appear to disagree, at least insofar as the constitutional text is concerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts." Ante, at 54.[11] Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen lawsuits *115 against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so.[12] Because the plaintiffs in today's case are citizens of the *116 State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court.[13] II The obvious place to look elsewhere, of course, is Hans v. Louisiana, 134 U.S. 1 (1890), and Hans was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in Hans raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without *117 more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. See id., at 9. Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by noncitizen plaintiffs, the Hans Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in Hans had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with Hans `s holding that a principle of sovereign immunity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded.[14] It follows that the Court's further step today of constitutionalizing Hans `s rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of Hans itself and takes its place with other historic examples of textually untethered elevations of judicially derived rules to the status of inviolable constitutional law. A The Louisiana plaintiff in Hans held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating *118 industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, pp. 383-384 (1988); Gibbons, 83 Colum. L. Rev., at 1976-1977. As Reconstruction governments collapsed, however, the postReconstruction regimes sought to repudiate these debts, and the Hans litigation arose out of Louisiana's attempt to renege on its bond obligations. Hans sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federalquestion jurisdiction. Indeed, Bradley explicitly admitted that "[i]t is true, the amendment does so read [as to permit Hans's suit], and if there were no other reason or ground for abating his suit, it might be maintainable." Hans, 134 U. S., at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. Id., at 10-11. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased. Hans thus addressed the issue implicated (though not directly raised) in the preratification debate about the CitizenState Diversity Clauses and implicitly settled by Chisholm: whether state sovereign immunity was cognizable by federal *119 courts on the exercise of federal-question jurisdiction. According to Hans, and contrary to Chisholm, it was. But that is all that Hans held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation.[15] Taking Hans only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal-question suit, but not one brought by a noncitizen. See Hans, supra, at 10-11. There was, however, no such anomaly at all. As already explained, federalquestion cases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citizens and noncitizens alike. If Hans had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana. Although there was thus no anomaly to be cured by Hans, the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article III with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see Part IV, infra ) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme. *120 "Different States may entertain different opinions on the true construction of the constitutional powers of congress. We know that, at one time, the assumption of the debts contracted by the several States, during the war of our Revolution, was deemed unconstitutional by some of them. . . . States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist." Cohens v. Virginia, 6 Wheat., at 386-387. And yet that is just what Hans threatened to do. How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, Hans was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53-57 (1987); Gibbons, supra, at 1978— *121 1982; see generally Foner, Reconstruction, at 575-587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Gibbons, 83 Colum. L. Rev., at 1981. Contract Clause suits like the one brought by Hans thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments." Id., at 1974. Indeed, Louisiana's brief in Hans unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt.[16] *122 So it is that history explains, but does not honor, Hans. The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.[17] Before *123 considering those errors, it is necessary to address the Court's contention that subsequent cases have read into Hans what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress. B The majority does not dispute the point that Hans v. Louisiana, 134 U.S. 1 (1890), had no occasion to decide whether Congress could abrogate a State's immunity from federalquestion suits. The Court insists, however, that the negative answer to that question that it finds in Hans and subsequent opinions is not "mere obiter dicta, but rather . . . the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that "[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment." Ante, at 67. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone *124 cannot bar a federal-question suit against a State brought by a state citizen. See, e. g., Edelman v. Jordan, 415 U.S. 651, 662 (1974) (acknowledging that "the Amendment by its terms does not bar suits against a State by its own citizens").[18] Indeed, as I have noted, Justice Bradley's opinion in Hans conceded that Hans might successfully have pursued his claim "if there were no other reason or ground [other than the Amendment itself] for abating his suit." 134 U.S., at 10. The Hans Court, rather, held the suit barred by a nonconstitutional common-law immunity. See supra, at 116-117. The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of Monaco v. Mississippi, 292 U.S. 313, 321-323 (1934). There, the Court said that "we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States." Id., at 322.[19] This statement certainly is true to Hans, which *125 clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a nonconsenting State. That was the "rationale" which was sufficient to decide Hans and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went. The majority, however, would read the "rationale" of Hans and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article III jurisdiction, Monaco, supra, at 322, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this conclusion. See, e. g., Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98 (1984) ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U.S. 490, 497 (1921) ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . ."). These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court.[20] But this *126 is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., Dellmuth v. Muth, 491 U.S. 223, 229, n. 2 (1989) (noting that "an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens," without suggesting that the immunity was unalterable by Congress),[21] or have suggested that the Hans immunity is not of constitutional stature. The very language quoted by the majority from Monaco, for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U.S., at 322. Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88-90.[22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante, at 72, "postulate," Nevada v. Hall, 440 U. S., at 437 (Rehnquist, J., dissenting), or "implicit limitation," Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 496 (1987) (Scalia, J., concurring in part and concurring in judgment), and as resting on the "inherent nature of sovereignty," Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944), rather than any explicit constitutional *127 provision.[23] But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself. The most damning evidence for the Court's theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post-Hans dicta in cases where that dicta would have mattered.[24] If it is indeed true that "private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U. S., at 40 (Scalia, J., concurring in part and dissenting in part), then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238 (recognizing that immunity may be waived). After all, consent of a party is in all other instances wholly insufficient to create subjectmatter *128 jurisdiction where it would not otherwise exist. See, e. g., Sosna v. Iowa, 419 U.S. 393, 398 (1975); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405 (2d ed. 1994) (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment's text that would bar federal-question suits. See supra, at 109-116. If "the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent," Duhne v. New Jersey, 251 U.S. 311, 313 (1920), and if consent to suit in state court is not sufficient to show consent in federal court, see Atascadero, supra, at 241, then Article III would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post-Hans dicta in that sort of case and exercised the jurisdiction that the plain text of Article III provides. See, e. g., Fulton Corp. v. Faulkner, 516 U.S. 325 (1996); see also supra, at 113-114. If these examples were not enough to distinguish Hans `s rationale of a pre-existing doctrine of sovereign immunity from the post-Hans dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when § 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion), in Welch v. Texas Dept. of Highways and Public Transp., supra, at 475 (plurality opinion), and in County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 252 *129 (1985).[25] Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today's majority's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and Welch, on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U.S. C. § 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of Hans immunity had been well established for a hundred years. Hans itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial . . . ought not to outweigh" present reasoning that points to a different conclusion. 134 U.S., at 20. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e. g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379 (1994) ("It is to the holdings of our cases, rather than their dicta, that we *130 must attend"); Bennis v. Michigan, 516 U.S. 442, 450 (1996). But because the Court disregards this norm today, I must consider the soundness of Hans `s original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court's extension of Hans `s holding to the point of rendering its immunity unalterable by Congress. III Three critical errors in Hans weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment, see supra, at 118-123. It also misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule Hans today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it. A There is and could be no dispute that the doctrine of sovereign immunity that Hans purported to apply had its origins in the "familiar doctrine of the common law," The Siren, 7 Wall. 152, 153 (1869), "derived from the laws and practices of our English ancestors," United States v. Lee, 106 U.S. 196, 205 (1882).[26] Although statutes came to affect its importance *131 in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (1768). Here, as in the mother country, it remained a common-law rule. See generally Jaffe, 77 Harv. L. Rev., at 2-19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1, 17-41 (1926). This fact of the doctrine's common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Hans Court and it should do the same for the Court today. For although the Court has persistently assumed that the common law's presence in the minds of the early Framers must *132 have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore . . . [and] cannot learn another system of laws without learning at the same time another language." P. Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 (1824). But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States.[27] An examination of the States' experience with common-law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with Hans `s resort to a common-law principle to limit the Constitution's contrary text. 1 This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that "[t]he *133 process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles." P. Reinsch, English Common Law in the Early American Colonies 58 (1899).[28] For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.[29] It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See id., at 7-8; Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791, *134 797 (1951).[30] But even in the late colonial period, Americans insisted that "the whole body of the common law ... was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence." Dale, The Adoption of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 554 (1882).[31] The result was that "the increasing influx of common-law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences inlaw in action on the two sides of the Atlantic." Hall, supra, at 797. *135 Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the Colonies and the old country. Dean Pound has observed that, "[f]or a generation after the Revolution, . . . political conditions gave rise to a general distrust of English law. . . . The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century." R. Pound, The Formative Era of American Law 7 (1938); see also C. Warren, A History of the American Bar 224-225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that "`the application of the principles of the English common law to our constitution' " should be considered "`good cause for impeachment.' " Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)).[32] Nor was anti-English sentiment *136 the only difficulty; according to Dean Pound, "[s]ocial and geographical conditions contributed also to make the work of receiving and reshaping the common law exceptionally difficult." Pound, supra, at 7. The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions.[33] As Justice Story explained, "[t]he common *137 law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Pet. 137, 144 (1829). In 1800, John Marshall had expressed the similar view that "our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation." Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America." Pound, supra, at 20; see also Jones 103 (observing that "suitab[ility] to local institutions and conditions" was "incomparably the most important" principle of reception in the new States). 2 While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of habeas *138 corpus, U. S. Const., Art. I, § 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229— 230 (1971).[34] This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326 ("I do not believe one man can be found" who maintains "that the common law of England has . . .been adopted as the common law of America by the Constitution of the United States"); Jay II, at 1255 (noting that the use of the term "laws" in Article III "could not have been meant to accomplish a general reception of British common law"). Records of the ratification debates support Marshall's understanding that everyone had to know that the new Constitution would not draw the common law in its train. Antifederalists like George Mason went so far as to object that *139 under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see also 3 Elliot's Debates 446-449 (Patrick Henry, Virginia Convention). In particular, the Anti federalists worried about the failure of the proposed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II, at 1256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain," id., at 1257.[35] While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot's Debates 451 (George Nicholas, Virginia Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see id., at 469-470 (Edmund Randolph, Virginia Convention), and not subject to revision by Congress, id., at 550 (Edmund Pendleton, Virginia Convention); see also infra, at 163-164. The Framers also recognized that the diverse development of the common law in the several States made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." Report on the Virginia Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) *140 (Alien and Sedition Laws).[36] In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay I, at 1056; Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393, 401 (1968) ("The assumption that colonial law was essentially the same in all colonies is wholly without foundation"), and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed. Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' response *141 to the Anti federalist claim that Article III granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. See, e. g., 3 Elliot's Debates 553 (John Marshall, Virginia Convention) ("Has the government of the United States power to make laws on every subject? . . . Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?"); Jay II, at 1260.[37] That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any subject comprehended by the general common law. Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recognize a general federal jurisdiction to try common-law crimes. Rejecting the idea of any federal reception, Madison insisted that "the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country." Alien and Sedition Laws 381. See also 1 Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, at 651-655 (discussing *142 the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, at 1254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution . . . "). Madison concluded that "[i]t is . . . distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law—a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers." Alien and Sedition Laws 382. B Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Hans Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante, at 72. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federalquestion jurisdiction. 1 As I have already noted briefly, see supra, at 105-106, the Framers and their contemporaries did not agree about the *143 place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction.[38] Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot's Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article III, so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See id., at 533 (Madison: the Constitution "give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it");[39]id., at 556 (Marshall: "I see a difficulty *144 in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in The Federalist No. 81: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961). See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1045-1054 (1983) (discussing the adoption of the Citizen-State Diversity Clauses); Gibbons, 83 Colum. L. Rev., at 1902-1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in The Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante, at 70. But there is no such mandate to be found. As I have already said, the immediate context of Hamilton's discussion in Federalist No. 81 has nothing to do with federal-question cases. It addresses a suggestion "that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities." The Federalist No. 81, at 548. Hamilton is plainly talking about a *145 suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article III. The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts: "A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." Id., at 549. The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Hans Court relied in part upon Hamilton's statement, see 134 U.S., at 20, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas Hans involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be inferred from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81. Hamilton says that a State is "not . . . amenable to the suit of an individual without its consent . . . . [u]nless . . . there is a surrender of this immunity in the plan of the convention." The Federalist No. 81, at 548-549 (emphasis deleted). He *146 immediately adds, however, that "[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here." Id., at 549. The reference is to The Federalist No. 32, also by Hamilton, which has this to say about the alienation of state sovereignty: "[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and re- pugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." Id., at 200 (emphasis in original). As an instance of the last case, in which exercising concurrent jurisdiction may produce interferences in "policy," Hamilton gives the example of concurrent power to tax the same subjects: "It is indeed possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article *147 by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a pre-existing right of sovereignty." Id., at 202 (emphasis in original). The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making "Indian relations . . . the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S., at 234.[40] We have accordingly recognized that "[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 170-171 (1973) (internal quotation marks omitted); see also Rice v. Olson, 324 U.S. 786, 789 (1945) ("The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's *148 history").[41] We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-222 (1987). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton's view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong. Quite apart, however, from its application to this particular Act of Congress exercising the Indian commerce power, Hamilton's sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: congressional legislation on (a) subjects committed expressly and exclusively to Congress, (b) subjects over which state authority is expressly negated, (c) subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (recognizing power of States to engage in some regulation of interstate commerce), when a congressional statute not only binds the States but even creates an affirmative obligation on the State *149 as such, as in this case? Hamilton's discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If infact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton's category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely. In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority's reliance on Hamilton's The Federalist No. 81, with its reference to No. 32. Either way, he is no authority for the Court's position. Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided.[42] The Court's difficulty is far more fundamental, however, than inconsistency with a particular quotation, for the Court's position runs afoul of the general theory of sovereignty that gave shape to the Framers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling *150 for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic. 2 We said in Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991), that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed ifeach State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, § 1 ("No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state . . ."). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous political event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal system that sought to balance the States' exercise of some sovereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy. As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. See, e. g., U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty").[43] Before the new federal scheme appeared, 18thcentury *151 political theorists had assumed that "there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself." B. Bailyn, The Ideological Origins of the American Revolution 198 (1967); see also Wood 345.[44] The American development of divided sovereign powers, which "shatter[ed] . . . the categories of government that had dominated Western thinking for centuries," id., at 385, was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See id., at 530 (noting that because "none of these arguments about `joint jurisdictions' and `coequal sovereignties' convincingly refuted the Anti federalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power "`resides in the PEOPLE, as the fountain of government' " (citing 1 Pennsylvania and the Federal Constitution, 1787-1788, p. 302 (J. McMaster & F. Stone eds. 1888) (quoting James Wilson)).[45] The People possessing this plenary bundle of specific powers *152 were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 278 (1985). As James Wilson emphasized, the location of ultimate sovereignty in the People meant that "[t]hey can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States." 1 Pennsylvania and the Federal Constitution, 1787-1788, supra, at 302.[46] Under such a scheme, Alexander Hamilton explained, "[i]t does not follow . . . that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects. " Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original).[47] A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, commenting that "[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." 2 Dall., at 435. And to the same point was Chief Justice Marshall's *153 description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819). Given this metamorphosis of the idea of sovereignty in the years leading up to 1789, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal-question jurisdiction is a crucial one.[48] The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See, e. g., Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.) ("A sovereign is exempt from suit . . . on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends").[49] But the ratification demonstrated *154 that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the "sovereign" in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in Nevada v. Hall, 440 U. S., at 416, where we considered a suit against a State in another State's courts: "This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity." Cf. United States v. Texas, 143 U.S. 621, 646 (1892) (recognizing that a suit by the National Government against a State "does no violence to the inherent nature of sovereignty"). Subjecting States to federal jurisdiction in federal-question cases brought by individuals thus reflected nothing more than Professor Amar's apt summary that "[w]here governments are acting within the bounds of their delegated `sovereign' power, they may partake of sovereign immunity; where *155 not, not." Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1490-1491, n. 261 (1987). State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318— 319 (remarks of J. Madison).[50] These factors, Madison wrote to Jefferson, "contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution also dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, § 8, and by providing through the Supremacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority. Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave *156 the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that "[n]o man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them," and that "an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union" was the Convention's preferred remedy. By speaking in the plural of an authority in the federal "courts," Hamilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton's power of the Government to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See also Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1367-1371 (1989) (discussing the Framers' concern with preserving as much state accountability as possible even in the course of enacting the Eleventh Amendment). This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, *157 to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federalquestion cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States, at 6-7.[51] The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.[52] *158 Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante, at 71.[53] But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article III (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible *159 to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent State? C The considerations expressed so far, based on text, Chisholm, caution in common-law reception, and sovereignty theory, have pointed both to the mistakes inherent in Hans and, even more strongly, to the error of today's holding. Although for reasons of stare decisis I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today's decision declaring state sovereign immunity itself immune from abrogation in federal-question cases is open to a further set of objections peculiar to itself. For today's decision stands condemned alike by the Framers' abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court's previous essays in constitutionalizing common-law rules at the expense of legislative authority. 1 I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politicians also took pains to guarantee that once a common-law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insistence *160 that no common-law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation. The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. According to one historian, "[s]hared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. . . . Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. . . . [T]he power to modify or even entirely to repeal the common law . . . now fell explicitly within the jurisdiction of the legislature." W. Nelson, Americanization of the Common Law 90 (1975).[54] Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that "the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall *161 be altered by a future law . . . ." N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976).[55] Just as the early state *162 governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.[56] *163 I have already indicated that the Framers did not forget the state-law examples. When Anti federalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A (emphasis in original).[57] Madison went on to insist that *164 "[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." Ibid.[58] Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if "the common law be admitted as . . . of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power . . . [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous . . . ." Id., at 381.[59] *165 2 History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this *166 century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with Lochner v. New York, 198 U.S. 45 (1905).[60] It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the commonlaw background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., Adkins v. Childrens Hospital of D. C., 261 U.S. 525, 557 (1923) (finding abrogation of common-law freedom to contract for any wage an unconstitutional "compulsory exaction"); see generally Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873 (1987). And yet the superseding lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court. The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of *167 which is to limit the exercise of governmental power. See, e. g., Adair v. United States, 208 U.S. 161 (1908). Some textual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction. I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially discoverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago: "There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. . . . An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted). This position was no less in conflict with American constitutionalism in 1798 than it is today, being inconsistent with the Framers' view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that "vital" or "background" principles, without more, may be used to confine a clear constitutional provision: "[S]ome speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I *168 cannot think that, under such a government, any Court of Justice would possess a power to declare it so. . . . ". .. [I]t has been the policy of the American states,. .. and of the people of the United States .. .to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void. . .. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." Id., at 398-399 (emphasis deleted) (opinion dissenting in part). Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other positive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (1980). It should take more than references to "background principle[s]," ante, at 72, and "implicit limitation[s]," Welch, 483 U. S., at 496 (Scalia, J., concurring in part and concurring in judgment), to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation. *169 IV The Court's holding that the States' Hans immunity may not be abrogated by Congress leads to the final question in this case, whether federal-question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one's views about the scope of the Eleventh Amendment or Hans and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte Young, 209 U.S. 123 (1908), and the case could, and should, readily be decided on this point alone. A In Ex parte Young, this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under Young, "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law." Quern v. Jordan, 440 U.S. 332, 337 (1979); see also Milliken v. Bradley, 433 U.S. 267, 289 (1977). The fact, without more, that such suits may have a significant impact on state governments does not count under Young. Milliken, for example, was a suit, under the authority of Young, brought against Michigan's Governor, Attorney General, Board of Education, Superintendent of Public Instruction, *170 and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State's obligation to implement. To take another example, Quern v. Jordan involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since Young was decided, the Court has recognized only one limitation on the scope of its doctrine: under Edelman v. Jordan, 415 U.S. 651 (1974), Young permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief. It should be no cause for surprise that Young itself appeared when it did in the national law. It followed as a matter of course after the Hans Court's broad recognition of immunity in federal-question cases, simply because "[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." Green v. Mansour, 474 U.S. 64, 68 (1985). Young provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in Hans with the principles embodied in the Supremacy Clause and Article III. If Young may be seen as merely the natural consequence of Hans, it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of Young isso far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that *171 long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown's immunity from suit in its own courts and the maxim that the King could do no wrong. See Jaffe, 77 Harv. L. Rev., at 3, 18-19; Ehrlich, No. XII: Proceedings Against the Crown (1216-1377), pp. 28-29, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921). An early example, from "time immemorial" of a claim "affecting the Crown [that] could be pursued in the regular courts [without consent since it]did not take the form of a suit against the Crown," Jaffe, supra, at 1, was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. Jaffe, 77 Harv. L. Rev., at 9. Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of certiorari and mandamus, "operat[ing] directly on the government; [and commanding] an officer not as an individual but as a functionary." Id., at 16. Thus the Court of King's Bench made it clear in 1701 that "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus ." The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.). B This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as Hans would later open the door to Ex parte Young itself. Once, then, the Eleventh Amendment was understood to forbid suit *172 against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." Jaffe, 77 Harv. L. Rev., at 20. "It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the eleventh amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counter pressure for the enforcement of constitutional limits on the states. The upshot . . . was to confine the amendment's prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state's real and personal property." Id., at 20-21. The earliest cases, United States v. Peters, 5 Cranch 115 (1809), and Osborn v. Bank of United States, 9 Wheat. 738 (1824), embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States, at 34-35, 40-41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Governor of Georgia v. Madrazo, 1 Pet. 110, 123-124 (1828), shifted this analysis somewhat, finding that a Governor could not be sued because he was sued "not by his name, but by his title," which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the *173 fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e. g., Davis v. Gray, 16 Wall. 203 (1873) (applying Osborn by enjoining the Governor of Texas to interfere with the possession of land granted by the State); United States v. Lee, 106 U.S. 196 (1882) (applying Osborn in context of federal sovereign immunity). This simple rule for recognizing sovereign immunity without gutting substantial rights was temporarily muddled in Louisiana v. Jumel, 107 U.S. 711 (1883), where the Court, although it "did not clearly say why," refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 S. Ct. Rev. 149, 152. (One recalls the circumstances of Hans itself, see supra, at 117-121.) The Court, however, again applied Osborn in the Virginia Coupon Cases, 114 U.S. 269 (1885) (permitting injunctions, restitution, and damages against state officers who seized property to collect taxes already paid with interest coupons the State had agreed to accept). In re Ayers, 123 U.S. 443, 502 (1887), sought to rationalize the competing strands of doctrine on the ground that an action may be "sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character." Ex parte Young restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor Hans immunity. The officer's action "is simply an illegal act upon the part of a state official in attempting *174 by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex parte Young, 209 U. S., at 159-160. The decision in Ex parte Young, and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. "Young was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. . . . If the state could not constitutionally authorize the act then Young was not acting by its authority." Orth, Judicial Power of the United States, at 133. The doctrine we call Ex parte Young is nothing short of "indispensable to the establishment of constitutional government and the rule of law." C. Wright, Law of Federal Courts 292 (4th ed. 1983). See also Chemerinsky, Federal Jurisdiction, at 393. A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory reject the Court's assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such *175 an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte Young without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to "affec[t] the federal balance," United States v. Bass, 404 U.S. 336, 349 (1971). See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989) ("[I]f Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute' ") (quoting Atascadero State Hospital v. Scanlon, 473 U. S., at 242); Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991). Our habitual caution makes sense for just the reason we mentioned in Dellmuth v. Muth, 491 U. S., at 230-231: it is "difficult to believe that . . . Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest." C There is no question that by its own terms Young `s indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman `s limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in Young, or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders Young unsuitable as a jurisdictional basis for determining on the merits whether petitioner is entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply Young. There is no adequate reason for its refusal. No clear statement of intent to displace the doctrine of Ex parte Young occurs in IGRA, and the Court is instead *176 constrained to rest its effort to skirt Young on a series of suggestions thought to be apparent in Congress's provision of "intricate procedures" for enforcing a State's obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying Young would nullify the statutory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the application of Young. 1 The Court cites Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of Young. The Court quotes from Chilicky for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not "creat[e]" additional remedies. Ante, at 74. The Court reasons that Congress's provision in IGRA of "intricate procedures" shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no "additional" remedy under Ex parte Young. Ante, at 73-76. Chilicky `s remoteness from the point of this case is, however, apparent from its facts. In Chilicky, Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward looking on the Bivens model, running against a federal official in his personal capacity, and requiring an *177 affirmative justification (as Bivens does). See Bivens, supra; FDIC v. Meyer, 510 U.S. 471, 484-486 (1994). The Bivens issue in Chilicky (and in Meyer ) is different from the Young issue here in every significant respect. Young is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began. Young does not provide retrospective monetary relief but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a government employee's personal pocket, but lawful conduct by a public employee acting in his official capacity. Young would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article III court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from Chilicky `s standards for imposing the burden to justify a supplementary scheme of tort law to the displacement of Young `s traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit. 2 Next, the Court suggests that it may be justified in displacing Young because Young would allow litigants to ignore the "intricate procedures" of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it. Young did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount *178 federal law may be enforced in a federal court by substituting a nonimmune party (the state officer) for an immune one (the State itself). Young does no more and furnishes no authority for the Court's assumption that it somehow pre-empts procedural rules devised by Congress for particular kinds of cases that may depend on Young for federal jurisdiction.[61] If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally dependent on Young, the consequences would be revolutionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte Young that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the Hans doctrine). See Young, 209 U. S., at 167-168; Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 689-690 (1949).[62] And yet Congress has imposed *179 a number of restrictions upon the habeas remedy, see, e. g., 28 U.S. C. § 2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e. g., McCleskey v. Zant, 499 U.S. 467 (1991) (abuse of the writ); Teague v. Lane, 489 U.S. 288 (1989) (limiting applicability of "new rules" on habeas); Brecht v. Abrahamson, 507 U.S. 619 (1993) (applying a more deferential harmless-error standard on habeas review). By suggesting that Ex parte Young provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under Young rather than 28 U.S. C. § 2254. The Court's view implies similar consequences under any number of similarly structured federal statutory schemes.[63] This, of course, cannot be the law, and the plausible rationale for rejecting the Court's contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on Young as it has to regulate when Young is out of the jurisdictional picture. If Young does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then Young does not bar the application of IGRA's procedures when effective relief is sought by suing a state officer. 3 The Court's third strand of reasoning for displacing Ex parte Young is a supposed inference that Congress so intended. *180 Since the Court rests this inference in large part on its erroneous assumption that the statute's procedural limitations would not be applied in a suit against an officer for which Young provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude Young `s application. But there are further reasons pointing to the utter implausibility of the Court's reading of the congressional mind. IGRA's jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liability under Young. It provides that "[t]he United States district courts shall have jurisdiction over . . . any cause of action . . . arising from the failure of a State to enter into negotiations . . . or to conduct such negotiations in good faith." 25 U.S. C. § 2710(d)(7)(A)(i) (emphasis added). This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State's failure to negotiate.[64] The door is so obviously just as open to jurisdiction over an officer under Young as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that Young might well be the jurisdictional basis for enforcement action. But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State's obligation), that would be no indication that Congress had rejected the application of Young. An order requiring a "State" to comply with federal *181 law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte Young and innumerable other cases show, there is nothing incongruous about a duty imposed on a "State" that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required "the State," by "order directed to an appropriate State official," to produce the state-court record where an indigent habeas petitioner argues that a state court's factual findings are not fairly supported in the record. See 28 U.S. C. § 2254(e) ("the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official"). If, then, IGRA's references to "a State's" duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on "the State." It may be that even the Court agrees, for it falls back to the position, see ante, at 75, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (indeed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P.2d 1169 (1992), makes that distinction abundantly clear. Finally, one must judge the Court's purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by excluding application of Young `s traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of *182 a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions. D There is, finally, a response to the Court's rejection of Young that ought to go without saying. Our long-standing practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("`every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' ") (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). This practice alone (without any need for a clear statement to displace Young ) would be enough to require Young `s application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas ). NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-501 (1979). Construing the statute to harmonize with Young, as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone. V Absent the application of Ex parte Young, I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate Hans immunity. Since the reasons for this position, as explained in Parts II—III, supra, tend to unsettle Hans as well as support Union Gas, I should add a word about my reasons for continuing to accept Hans `s holding as a matter of stare decisis. *183 The Hans doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat Hans as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect. In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,[65] they would not be modified without deliberately expressed intent. See Gregory v. Ashcroft, 501 U. S., at 460-461. The plain-statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United States v. Bass, 404 U. S., at 349, is particularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests," Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985).[66] Hence, we *184 have required such a plain statement when Congress preempts the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), imposes a condition on the grant of federal moneys, South Dakota v. Dole, 483 U.S. 203, 207 (1987), or seeks to regulate a State's ability to determine the qualifications of its own officials, Gregory, supra, at 464. When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., Welch v. Texas Dept. of Highways & Public Transp., 483 U. S., at 475; Atascadero State Hospital v. Scanlon, 473 U. S., at 239-240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas ) we have never found the requirement to be met outside the context of laws passed under § 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plainstatement rule is an adequate check on congressional overreaching, and that today's abandonment of that approach is wholly unwarranted. There is an even more fundamental "clear statement" principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases: *185 "The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed." Cohens v. Virginia, 6 Wheat., at 379-380. Because neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III, I would reverse the judgment of the Court of Appeals.

In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice Stevens in his concurring opinion in There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Justice Stevens saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was the holding in Union Gas, which the Court now overrules and repudiates. The fault I find with the majority today is not in its decision to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting congressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamentally mistaken, and for that reason I respectfully dissent. * I It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress. The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction;[1] there was no unanimity, but in due course the Court in answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases. The adoption of the Eleventh Amendment soon changed the result in not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the *102 Eleventh Amendment did not affect federal-question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of `s holding that States did enjoy sovereign immunity in federal-question suits. The Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of `s reasoning is underscored by its clear inconsistency with the Founders' hostility to the implicit reception of common-law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives. The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal system, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again. Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the doctrine to be outside the reach of Congress, but must displace the doctrine of Ex parte 209 U.S. 1 that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing `s jurisdictional doctrine withstand scrutiny. A The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is *103 not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Suits Against Governments and Officers: Sovereign Immunity,[2] The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages. "At least as early as the thirteenth century, during the reign of Henry (1216-1272), it was recognized that the king could not be sued in his own courts." C. Eleventh Amendment and Sovereign Immunity 5 (1972). See 3 W. Blackstone, Commentaries *244-*245; The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, *104 Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article And although the jurisdictional bases together constituting the judicial power of the national courts under 2 of Article included questions arising under federal law and cases between States *105 and individuals who are not citizens,[3] it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.[4] Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, 42-150; for now it is enough to say that there was no consensus on the issue. See State 473 U.S. 4, ; ; There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was clear: the *106 debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article would not alter States' pre-existing common-law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article or any other provision would "constitutionalize" state sovereign immunity, and no one uttered any such contention. B The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt.[5] The case settled, by implication, *107 any question there could possibly have been about recognizing state sovereign immunity in actions depending on the federal question (or "arising under") head of jurisdiction *108 as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling v Louisiana, Although Justice Iredell's dissent in seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, 8-81, Justice Iredell's dissent focused on the construction of the Judiciary Act of 1, not Article See Orth, The Truth About Justice Iredell's Dissent in 73 N. C. L. Rev. 255 This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." While in at least some circumstances States might be held liable to "the authority of the United States," any such liability *109 would depend upon "laws passed under the Constitution and in conformity to it," ibid.[6] Finding no congressional action abrogating Georgia's common-law immunity, Justice Iredell concluded that the State should not be liable to suit.[7] C The Eleventh Amendment, of course, repudiated and clearly divested federal courts of some jurisdiction as to cases against state parties: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity *110 Clauses of Article for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court's view in today's case, but we need to choose between the competing readings for the light that will be shed on the doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do. The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses.[8] In precisely tracking the language in Article providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common *111 sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federalquestion suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post- proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect: "[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States." Gazette of the United States 303 With its references to suits by citizens as well as noncitizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would "arise under" that Treaty and thus be subject to federal-question jurisdiction under Article Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant mansion. 5 Documentary History of the Supreme Court of the United States, 1-1800, pp. 352-449[9] *112 Congress took no action on Sedgwick's proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal-question jurisdiction, or it would never have left the States open to federal-question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from selling their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Eleventh Amendment had meant it to immunize States from federal-question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, It should accordingly come as no surprise that the weightiest commentary following the Amendment's adoption described it simply as constricting the scope of the CitizenState Diversity Clauses. In for instance, Chief Justice Marshall, writing for the Court, emphasized that the Amendment had no effect on federal courts' jurisdiction grounded on the "arising under" provision of Article and concluded that "a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case." The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, *113 not "to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation." 7. The treatment of the Amendment in was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction.[10] And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a *114 private plaintiff for money damages. See, e. g., Commonwealth Edison ; Minneapolis Star & Tribune The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship. See State 473 U. S., 94 ; Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, Yale L. J. 1, 44 (18). In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with this Court's practice, with the views of John Marshall, with the history of the Amendment's drafting, and with its allusive language. Today's majority does not appear to disagree, at least insofar as the constitutional text is concerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article diversity jurisdiction of the federal courts." Ante, at 54.[11] Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen lawsuits *115 against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so.[12] Because the plaintiffs in today's case are citizens of the *116 State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court.[13] II The obvious place to look elsewhere, of course, is and was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without *117 more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. See Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by noncitizen plaintiffs, the Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with `s holding that a principle of sovereign immunity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded.[14] It follows that the Court's further step today of constitutionalizing `s rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of itself and takes its place with other historic examples of textually untethered elevations of judicially derived rules to the status of inviolable constitutional law. A The Louisiana plaintiff in held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating *118 industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, pp. 383-384 (18); -1977. As Reconstruction governments collapsed, however, the postReconstruction regimes sought to repudiate these debts, and the litigation arose out of Louisiana's attempt to renege on its bond obligations. sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federalquestion jurisdiction. Indeed, Bradley explicitly admitted that "[i]t is true, the amendment does so read [as to permit 's suit], and if there were no other reason or ground for abating his suit, it might be maintainable." The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased. thus addressed the issue implicated (though not directly raised) in the preratification debate about the CitizenState Diversity Clauses and implicitly settled by : whether state sovereign immunity was cognizable by federal *119 courts on the exercise of federal-question jurisdiction. According to and contrary to it was. But that is all that held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that held state sovereign immunity to have attained some constitutional status immunizing it from abrogation.[15] Taking only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal-question suit, but not one brought by a noncitizen. See There was, however, no such anomaly at all. As already explained, federalquestion cases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citizens and noncitizens alike. If had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana. Although there was thus no anomaly to be cured by the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see Part IV, infra ) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme. *120 "Different States may entertain different opinions on the true construction of the constitutional powers of congress. We know that, at one time, the assumption of the debts contracted by the several States, during the war of our Revolution, was deemed unconstitutional by some of them. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist." -387. And yet that is just what threatened to do. How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53-57 (17); 978— *121 12; see generally Foner, Reconstruction, at -587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Contract Clause suits like the one brought by thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments." Indeed, Louisiana's brief in unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Court found a way to avoid the certainty of the State's contempt.[16] *122 So it is that history explains, but does not honor, The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.[17] Before *1 considering those errors, it is necessary to address the Court's contention that subsequent cases have read into what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress. B The majority does not dispute the point that had no occasion to decide whether Congress could abrogate a State's immunity from federalquestion suits. The Court insists, however, that the negative answer to that question that it finds in and subsequent opinions is not "mere obiter dicta, but rather the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that "[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment." Ante, at 67. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone *124 cannot bar a federal-question suit against a State brought by a state citizen. See, e. g.,[18] Indeed, as I have noted, Justice Bradley's opinion in conceded that might successfully have pursued his claim "if there were no other reason or ground [other than the Amendment itself] for abating his suit." The Court, rather, held the suit barred by a nonconstitutional common-law immunity. See The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of 321-3 There, the Court said that "we cannot rest with a mere literal application of the words of 2 of Article or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States."[19] This statement certainly is true to which *125 clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a nonconsenting State. That was the "rationale" which was sufficient to decide and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went. The majority, however, would read the "rationale" of and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article jurisdiction, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this See, e. g., Pennhurst State School and ; Ex parte New York, These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court.[20] But this *126 is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., 491 U.S. 2,[21] or have suggested that the immunity is not of constitutional stature. The very language quoted by the majority from for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U.S., Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88-90.[22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante, 2, "postulate," or "implicit limitation," (17) and as resting on the "inherent nature of sovereignty," Great Northern Life Ins. rather than any explicit constitutional *127 provision.[] But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself. The most damning evidence for the Court's theory that rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post- dicta in cases where that dicta would have mattered.[24] If it is indeed true that "private suits against States [are] not permitted under Article (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U. S., then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., State 473 U. S., at 8 After all, consent of a party is in all other instances wholly insufficient to create subjectmatter *128 jurisdiction where it would not otherwise exist. See, e. g., U.S. 393, 3 ; see E. Chemerinsky, Federal Jurisdiction 7.6, p. 405 (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment's text that would bar federal-question suits. See If "the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent," 2 U.S. 311, and if consent to suit in state court is not sufficient to show consent in federal court, see 41, then Article would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post- dicta in that sort of case and exercised the jurisdiction that the plain text of Article provides. See, e. g., Fulton 6 U.S. 325 ; see If these examples were not enough to distinguish `s rationale of a pre-existing doctrine of sovereign immunity from the post- dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in in and in County of[25] Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today's majority's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U.S. C. 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of immunity had been well established for a hundred years. itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial ought not to outweigh" present reasoning that points to a different 134 U.S., 0. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e. g., 1 U.S. 375, ; 6 U.S. 442, But because the Court disregards this norm today, I must consider the soundness of `s original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court's extension of `s holding to the point of rendering its immunity unalterable by Congress. Three critical errors in weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Court misread the Eleventh Amendment, see 18-1. It misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it. A There is and could be no dispute that the doctrine of sovereign immunity that purported to apply had its origins in the "familiar doctrine of the common law," The Siren, "derived from the laws and practices of our English ancestors," United[26] Although statutes came to affect its importance *131 in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (17). Here, as in the mother country, it remained a common-law rule. See generally 77 Harv. L. Rev., -19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1, 17-41 (1926). This fact of the doctrine's common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Court and it should do the same for the Court today. For although the Court has persistently assumed that the common law's presence in the minds of the early Framers must *132 have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore [and] cannot learn another system of laws without learning at the same time another language." P. Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States.[27] An examination of the States' experience with common-law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with `s resort to a common-law principle to limit the Constitution's contrary text. 1 This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that "[t]he *133 process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles." P. Reinsch, English Common Law in the Early American Colonies 58 (1899).[28] For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.[29] It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See ; The Common Law: An Account of its Reception in the United States, *134 797 (19).[30] But even in the late colonial period, Americans insisted that "the whole body of the common law was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence." Dale, The Adoption of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 554[31] The result was that "the increasing influx of common-law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences inlaw in action on the two sides of the Atlantic." *135 Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the Colonies and the old country. Dean has observed that, "[f]or a generation after the Revolution, political conditions gave rise to a general distrust of English law. The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century." R. The Formative Era of American Law 7 (1938); see C. Warren, A History of the American Bar 224-225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that "`the application of the principles of the English common law to our constitution' " should be considered "`good cause for impeachment.' " Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)).[32] Nor was anti-English sentiment *136 the only difficulty; according to Dean "[s]ocial and geographical conditions contributed to make the work of receiving and reshaping the common law exceptionally difficult." The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions.[33] As Justice Story explained, "[t]he common *137 law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van In 1800, John Marshall had expressed the similar view that "our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation." Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, 326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America." 0; see Jones 103 (observing that "suitab[ility] to local institutions and conditions" was "incomparably the most important" principle of reception in the new States). 2 While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of habeas *138 corpus, U. S. Const., Art. I, 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229— 0[34] This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, 326 ("I do not believe one man can be found" who maintains "that the common law of England hasbeen adopted as the common law of America by the Constitution of the United States"); Jay II, 255 (noting that the use of the term "laws" in Article "could not have been meant to accomplish a general reception of British common law"). Records of the ratification debates support Marshall's understanding that everyone had to know that the new Constitution would not draw the common law in its train. Antifederalists like George Mason went so far as to object that *139 under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see 3 Elliot's Debates 446-449 (Patrick Henry, Convention). In particular, the Anti federalists worried about the failure of the proposed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II, 256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain,"[35] While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot's Debates 4 (George Nicholas, Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see (Edmund Randolph, Convention), and not subject to revision by Congress, (Edmund Pendleton, Convention); see infra, 63-164. The Framers recognized that the diverse development of the common law in the several States made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." Report on the Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) *140 (Alien and Sedition Laws).[36] In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay I, 056; Stoebuck, Reception of English Common Law in the American Colonies, and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed. Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' response *141 to the Anti federalist claim that Article granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. See, e. g., 3 Elliot's Debates 553 (John Marshall, Convention) ("Has the government of the United States power to make laws on every subject? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?"); Jay II, 260.[37] That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any subject comprehended by the general common law. Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recognize a general federal jurisdiction to try common-law crimes. Rejecting the idea of any federal reception, Madison insisted that "the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country." Alien and Sedition Laws 381. See 1 Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, at 6-5 (discussing *142 the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, 254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution "). Madison concluded that "[i]t is distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law—a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers." Alien and Sedition Laws 382. B Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante, 2. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federalquestion jurisdiction. 1 As I have already noted briefly, see the Framers and their contemporaries did not agree about the *143 place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction.[38] Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot's Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See ;[39] at 556 (Marshall: "I see a difficulty * in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in The Federalist No. 81: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961). See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, ; -1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in The Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante, 0. But there is no such mandate to be found. As I have already said, the immediate context of Hamilton's discussion in Federalist No. 81 has nothing to do with federal-question cases. It addresses a suggestion "that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities." The Federalist No. 81, at 548. Hamilton is plainly talking about a *145 suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts: "A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Court relied in part upon Hamilton's statement, see 134 U.S., 0, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be inferred from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81. Hamilton says that a State is "not amenable to the suit of an individual without its consent [u]nless there is a surrender of this immunity in the plan of the convention." The Federalist No. 81, at 548-549 He *146 immediately adds, however, that "[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here." The reference is to The Federalist No. 32, by Hamilton, which has this to say about the alienation of state sovereignty: "[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and re- pugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." 00 As an instance of the last case, in which exercising concurrent jurisdiction may produce interferences in "policy," Hamilton gives the example of concurrent power to tax the same subjects: "It is indeed possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article *147 by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a pre-existing right of sovereignty." 02 The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making "Indian relations the exclusive province of federal law." County of 470 U. S., at 4.[40] We have accordingly recognized that "[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." ; see[41] We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. (17). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton's view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong. Quite apart, however, from its application to this particular Act of Congress exercising the Indian commerce power, Hamilton's sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: congressional legislation on (a) subjects committed expressly and exclusively to Congress, (b) subjects over which state authority is expressly negated, (c) subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, when a congressional statute not only binds the States but even creates an affirmative obligation on the State *149 as such, as in this case? Hamilton's discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If infact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton's category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely. In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority's reliance on Hamilton's The Federalist No. 81, with its reference to No. 32. Either way, he is no authority for the Court's position. Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided.[42] The Court's difficulty is far more fundamental, however, than inconsistency with a particular quotation, for the Court's position runs afoul of the general theory of sovereignty that gave shape to the Framers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling *150 for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic. 2 We said in that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed ifeach State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, 1 ("No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state"). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous political event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal system that sought to balance the States' exercise of some sovereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy. As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. See, e. g., U. S. Term Limits, 4 U.S. ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty").[43] Before the new federal scheme appeared, 18thcentury *1 political theorists had assumed that "there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself." B. Bailyn, The Ideological Origins of the American Revolution 1 (1967); see Wood 345.[44] The American development of divided sovereign powers, which "shatter[ed] the categories of government that had dominated Western thinking for centuries," was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See (noting that because "none of these arguments about `joint jurisdictions' and `coequal sovereignties' convincingly refuted the Anti federalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power "`resides in the PEOPLE, as the fountain of government' " (citing 1 Pennsylvania and the Federal Constitution, p. 302 (J. McMaster & F. Stone eds. 1888) (quoting James Wilson)).[45] The People possessing this plenary bundle of specific powers *152 were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 278 As James Wilson emphasized, the location of ultimate sovereignty in the People meant that "[t]hey can distribute one portion of power to the more contracted circle called State governments; they can furnish another proportion to the government of the United States." 1 Pennsylvania and the Federal Constitution,[46] Under such a scheme, Alexander Hamilton explained, "[i]t does not follow that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects. " Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton (Syrett ed. 19)[47] A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Justice Iredell was to make the same observation in his dissent, commenting that "[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." And to the same point was Chief Justice Marshall's * description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." Given this metamorphosis of the idea of sovereignty in the years leading up to 1, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal-question jurisdiction is a crucial one.[48] The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See, e. g., U.S. ("A sovereign is exempt from suit on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends").[49] But the ratification demonstrated *154 that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the "sovereign" in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in where we considered a suit against a State in another State's courts: "This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity." Cf. United Subjecting States to federal jurisdiction in federal-question cases brought by individuals thus reflected nothing more than Professor Amar's apt summary that "[w]here governments are acting within the bounds of their delegated `sovereign' power, they may partake of sovereign immunity; where *155 not, not." Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1490-1491, n. 261 (17). State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318— 319 (remarks of J. Madison).[50] These factors, Madison wrote to Jefferson, "contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, 8, and by providing through the Supremacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority. Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave *156 the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that "[n]o man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them," and that "an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union" was the Convention's preferred remedy. By speaking in the plural of an authority in the federal "courts," Hamilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton's power of the Government to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See Marshall, Fighting the Words of the Eleventh Amendment, This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, *157 to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federalquestion cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, 282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States,[] The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.[52] *158 Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante, 1.[53] But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible *159 to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent State? C The considerations expressed so far, based on text, caution in common-law reception, and sovereignty theory, have pointed both to the mistakes inherent in and, even more strongly, to the error of today's holding. Although for reasons of stare decisis I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today's decision declaring state sovereign immunity itself immune from abrogation in federal-question cases is open to a further set of objections peculiar to itself. For today's decision stands condemned alike by the Framers' abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court's previous essays in constitutionalizing common-law rules at the expense of legislative authority. 1 I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politicians took pains to guarantee that once a common-law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insistence *160 that no common-law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation. The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. According to one historian, "[s]hared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. [T]he power to modify or even entirely to repeal the common law now fell explicitly within the jurisdiction of the legislature." W. Nelson, Americanization of the Common Law 90[54] Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that "the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall *161 be altered by a future law" N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976).[55] Just as the early state *162 governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.[56] *163 I have already indicated that the Framers did not forget the state-law examples. When Anti federalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A[57] Madison went on to insist that *164 "[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." [58] Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if "the common law be admitted as of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous"[59] *1 2 History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this *166 century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with 1 U.S. 45[60] It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the commonlaw background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., (19) ; see generally Sunstein, Lochner's Legacy, (17). And yet the superseding lesson that seemed clear after West Coast Hotel 300 U.S. that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court. The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of *167 which is to limit the exercise of governmental power. See, e. g., Some textual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction. I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially discoverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago: "There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." (17) This position was no less in conflict with American constitutionalism in 17 than it is today, being inconsistent with the Framers' view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that "vital" or "background" principles, without more, may be used to confine a clear constitutional provision: "[S]ome speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I *1 cannot think that, under such a government, any Court of Justice would possess a power to declare it so. ". [I]t has been the policy of the American states,. and of the people of the United Statesto define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." at 3-399 (opinion dissenting in part). Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other positive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (10). It should take more than references to "background principle[s]," ante, 2, and "implicit limitation[s]," 483 U. S., at to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation. *169 IV The Court's holding that the States' immunity may not be abrogated by Congress leads to the final question in this case, whether federal-question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one's views about the scope of the Eleventh Amendment or and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte 209 U.S. 1 and the case could, and should, readily be decided on this point alone. A In Ex parte this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law." ; see The fact, without more, that such suits may have a significant impact on state governments does not count under Milliken, for example, was a suit, under the authority of brought against Michigan's Governor, Attorney General, Board of Education, Superintendent of Public Instruction, *170 and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State's obligation to implement. To take another example, involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since was decided, the Court has recognized only one limitation on the scope of its doctrine: under permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief. It should be no cause for surprise that itself appeared when it did in the national law. It followed as a matter of course after the Court's broad recognition of immunity in federal-question cases, simply because "[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in with the principles embodied in the Supremacy Clause and Article If may be seen as merely the natural consequence of it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of isso far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that *171 long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown's immunity from suit in its own courts and the maxim that the King could do no wrong. See 18-19; Ehrlich, No. XII: Proceedings Against the Crown (1216-1377), pp. 28-29, in 6 Oxford Studies in Social and Legal History An early example, from "time immemorial" of a claim "affecting the Crown [that] could be pursued in the regular courts [without consent since it]did not take the form of a suit against the Crown," was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. 77 Harv. L. Rev., Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of certiorari and mandamus, "operat[ing] directly on the government; [and commanding] an officer not as an individual but as a functionary." 6. Thus the Court of King's Bench made it clear in 1701 that "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus" The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.). B This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as would later open the door to Ex parte itself. Once, then, the Eleventh Amendment was understood to forbid suit *172 against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." 77 Harv. L. Rev., 0. "It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the eleventh amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counter pressure for the enforcement of constitutional limits on the states. The upshot was to confine the amendment's prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state's real and personal property." 0-21. The earliest cases, United and embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States, at 34-35, 40-41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Governor of 1-124 shifted this analysis somewhat, finding that a Governor could not be sued because he was sued "not by his name, but by his title," which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the *173 fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e. g., ; United This simple rule for recognizing sovereign immunity without gutting substantial rights was temporarily muddled in where the Court, although it "did not clearly say why," refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 14 S. Ct. Rev. 149, 152. (One recalls the circumstances of itself, see 17-121.) The Court, however, again applied Osborn in the Coupon Cases, In re Ayers, 1 U.S. 443, sought to rationalize the competing strands of doctrine on the ground that an action may be "sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character." Ex parte restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor immunity. The officer's action "is simply an illegal act upon the part of a state official in attempting *174 by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex parte 209 U. S., 59-160. The decision in Ex parte and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. " was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. If the state could not constitutionally authorize the act then was not acting by its authority." Orth, Judicial Power of the United States, 33. The doctrine we call Ex parte is nothing short of "indispensable to the establishment of constitutional government and the rule of law." C. Wright, Law of Federal Courts 292 See Chemerinsky, Federal Jurisdiction, at 393. A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory reject the Court's assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such *175 an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to "affec[t] the federal balance," United See (quoting State 473 U. S., 42); Our habitual caution makes sense for just the reason we mentioned in 491 U. S., at 0-1: it is "difficult to believe that Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest." C There is no question that by its own terms `s indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman `s limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders unsuitable as a jurisdictional basis for determining on the merits whether petitioner is entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply There is no adequate reason for its refusal. No clear statement of intent to displace the doctrine of Ex parte occurs in IGRA, and the Court is instead *176 constrained to rest its effort to skirt on a series of suggestions thought to be apparent in Congress's provision of "intricate procedures" for enforcing a State's obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying would nullify the statutory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the application of 1 The Court cites 4 (18), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of The Court quotes from Chilicky for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not "creat[e]" additional remedies. Ante, 4. The Court reasons that Congress's provision in IGRA of "intricate procedures" shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no "additional" remedy under Ex parte Ante, 3-76. Chilicky `s remoteness from the point of this case is, however, apparent from its facts. In Chilicky, Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of 403 U.S. for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward looking on the model, running against a federal official in his personal capacity, and requiring an *177 affirmative justification (as does). See 0 U.S. 471, The issue in Chilicky (and in Meyer ) is different from the issue here in every significant respect. is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began. does not provide retrospective monetary relief but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a government employee's personal pocket, but lawful conduct by a public employee acting in his official capacity. would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from Chilicky `s standards for imposing the burden to justify a supplementary scheme of tort law to the displacement of `s traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit. 2 Next, the Court suggests that it may be justified in displacing because would allow litigants to ignore the "intricate procedures" of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it. did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount *178 federal law may be enforced in a federal court by substituting a nonimmune party (the state officer) for an immune one (the State itself). does no more and furnishes no authority for the Court's assumption that it somehow pre-empts procedural rules devised by Congress for particular kinds of cases that may depend on for federal jurisdiction.[61] If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally dependent on the consequences would be revolutionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the doctrine). See 209 U. S., 67-1; U.S. 2, 9-690[62] And yet Congress has imposed *179 a number of restrictions upon the habeas remedy, see, e. g., 28 U.S. C. 2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e. g., ; ; By suggesting that Ex parte provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under rather than 28 U.S. C. 2254. The Court's view implies similar consequences under any number of similarly structured federal statutory schemes.[63] This, of course, cannot be the law, and the plausible rationale for rejecting the Court's contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on as it has to regulate when is out of the jurisdictional picture. If does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then does not bar the application of IGRA's procedures when effective relief is sought by suing a state officer. 3 The Court's third strand of reasoning for displacing Ex parte is a supposed inference that Congress so intended. *180 Since the Court rests this inference in large part on its erroneous assumption that the statute's procedural limitations would not be applied in a suit against an officer for which provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude `s application. But there are further reasons pointing to the utter implausibility of the Court's reading of the congressional mind. IGRA's jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liability under It provides that "[t]he United States district courts shall have jurisdiction over any cause of action arising from the failure of a State to enter into negotiations or to conduct such negotiations in good faith." 25 U.S. C. 2710(d)(7)(A)(i) (emphasis added). This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State's failure to negotiate.[64] The door is so obviously just as open to jurisdiction over an officer under as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that might well be the jurisdictional basis for enforcement action. But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State's obligation), that would be no indication that Congress had rejected the application of An order requiring a "State" to comply with federal *181 law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte and innumerable other cases show, there is nothing incongruous about a duty imposed on a "State" that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required "the State," by "order directed to an appropriate State official," to produce the state-court record where an indigent habeas petitioner argues that a state court's factual findings are not fairly supported in the record. See 28 U.S. C. 2254(e) ("the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official"). If, then, IGRA's references to "a State's" duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on "the State." It may be that even the Court agrees, for it falls back to the position, see ante, 5, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (indeed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. 2 Kan. 559, makes that distinction abundantly clear. Finally, one must judge the Court's purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by excluding application of `s traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of *182 a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions. D There is, finally, a response to the Court's rejection of that ought to go without saying. Our long-standing practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo 485 U.S. 5, (18) ). This practice alone (without any need for a clear statement to displace ) would be enough to require `s application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas ). Construing the statute to harmonize with as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone. V Absent the application of Ex parte I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate immunity. Since the reasons for this position, as explained in Parts II—, tend to unsettle as well as support Union Gas, I should add a word about my reasons for continuing to accept `s holding as a matter of stare decisis. *183 The doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect. In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,[] they would not be modified without deliberately expressed intent. See 501 U. S., at The plain-statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United 404 U. S., at is particularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests,"[66] Hence, we *184 have required such a plain statement when Congress preempts the historic powers of the States, 0 imposes a condition on the grant of federal moneys, South (17), or seeks to regulate a State's ability to determine the qualifications of its own officials, When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., v. Texas Dept. of Highways & Public 483 U. S., ; State 473 U. S., -240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas ) we have never found the requirement to be met outside the context of laws passed under 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plainstatement rule is an adequate check on congressional overreaching, and that today's abandonment of that approach is wholly unwarranted. There is an even more fundamental "clear statement" principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases: *185 "The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed." 6 Wheat., at -380. Because neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article I would reverse the judgment of the Court of Appeals.

Justice Thomas

majority

Pollard v. EI Du Pont De Nemours & Co.

2001-06-04

https://www.courtlistener.com/opinion/118441/pollard-v-ei-du-pont-de-nemours-co/

https://www.courtlistener.com/api/rest/v3/clusters/118441/

2000-067

This case presents the question whether a front pay award is an element of compensatory damages under the Civil Rights Act of 1991. We conclude that it is not. I Petitioner Sharon Pollard sued her former employer, E. I. du Pont de Nemours and Company (DuPont), alleging that she had been subjected to a hostile work environment based on her sex, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S. C. § 2000e et seq. After a trial, the District Court found that Pollard was subjected to coworker sexual harassment of which her supervisors were aware. The District Court further found that the harassment resulted in a medical leave of absence from her job for psychological assistance and her eventual dismissal for refusing to return to the same hostile work environment. The court awarded Pollard $107,364 in backpay and benefits, $252,997 in attorney's fees, and, as relevant here, $300,000 in compensatory damages—the maximum permitted under the statutory cap for such damages in 42 U.S. C. § 1981a(b)(3). *846 The Court of Appeals affirmed, concluding that the record demonstrated that DuPont employees engaged in flagrant discrimination based on sex and that DuPont managers and supervisors did not take adequate steps to stop it. 213 F.3d 933 (CA6 2000). The issue presented for review here is whether front pay constitutes an element of "compensatory damages" under 42 U.S. C. § 1981a and thus is subject to the statutory damages cap imposed by that section. Although courts have defined "front pay" in numerous ways, front pay issimply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. For instance, when an appropriate position for the plaintiff is not immediately available without displacing an incumbent employee, courts have ordered reinstatement upon the opening of such a position and have ordered front pay to be paid until reinstatement occurs. See, e. g., Walsdorf v. Board of Comm'rs, 857 F.2d 1047, 1053-1054 (CA5 1988); King v. Staley, 849 F.2d 1143, 1145 (CA8 1988). In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement. See, e. g., Gotthardt v. National R. R. Passenger Corp., 191 F.3d 1148, 1156 (CA9 1999); Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957 (CA10 1980). For the purposes of this opinion, it is not necessary for us to explain when front pay is an appropriate remedy. The question before us is only whether front pay, if found to be appropriate, is an element of compensatory damages under the Civil Rights Act of 1991 and thus subject to the Act's statutory cap on such damages. Here, the District Court observed that "the $300,000.00 award is, in fact, insufficient to compensate plaintiff," 16 F. Supp. 2d 913, 924, n. 19 (WD Tenn. 1998), but it stated that *847 it was bound by the Sixth Circuit's decision in Hudson v. Reno, 130 F.3d 1193 (1997), which held that front pay was subject to the cap. On appeal, Pollard argued that Hudson was wrongly decided because front pay is not an element of compensatory damages, but rather a replacement for the remedy of reinstatement in situations in which reinstatement would be inappropriate. She also argued that § 1981a, by its very terms, explicitly excludes from the statutory cap remedies that traditionally were available under Title VII, which she argued included front pay. The Court of Appeals agreed with Pollard's arguments but considered itself bound by Hudson. The Sixth Circuit declined to rehear the case en banc. The Sixth Circuit's decision in Hudson was one of the first appellate opinions to decide whether front pay is an element of compensatory damages subject to the statutory cap set forth in § 1981a(b)(3). Contrary to the Sixth Circuit's resolution of this question, the other Courts of Appeals to address it have concluded that front pay is a remedy that is not subject to the limitations of § 1981a(b)(3). See, e. g., Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 499-500 (CA7 2000); Kramer v. Logan County School Dist. No. R-1, 157 F.3d 620, 625-626 (CA8 1998); Gotthardt, supra, at 1153— 1154; Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 556 (CA10 1999); EEOC v. W&O, Inc., 213 F.3d 600, 619, n. 10 (CA11 2000); Martini v. Federal Nat. Mortgage Assn., 178 F.3d 1336, 1348-1349 (CADC 1999). We granted certiorari to resolve this conflict. 531 U.S. 1069 (2001). II Plaintiffs who allege employment discrimination on the basis of sex traditionally have been entitled to such remedies as injunctions, reinstatement, backpay, lost benefits, and attorney's fees under § 706(g) of the Civil Rights Act *848 of 1964. 42 U.S. C. § 2000e—5(g)(1). In the Civil Rights Act of 1991, Congress expanded the remedies available to these plaintiffs by permitting, for the first time, the recovery of compensatory and punitive damages. 42 U.S. C. § 1981a(a)(1) ("[T]he complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964"). The amount of compensatory damages awarded under § 1981a for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," and the amount of punitive damages awarded under § 1981a, however, may not exceed the statutory cap set forth in § 1981a(b)(3). The statutory cap is based on the number of people employed by the respondent. In this case, the cap is $300,000 because DuPont has more than 500 employees. The Sixth Circuit has concluded that front pay constitutes compensatory damages awarded for future pecuniary losses and thus is subject to the statutory cap of § 1981a(b)(3). 213 F.3d, at 945; Hudson, supra, at 1203. For the reasons discussed below, we conclude that front pay is not an element of compensatory damages within the meaning of § 1981a, and, therefore, we hold that the statutory cap of § 1981a(b)(3) is inapplicable to front pay. A Under § 706(g) of the Civil Rights Act of 1964 as originally enacted, when a court found that an employer had intentionally engaged in an unlawful employment practice, the court was authorized to "enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay." 42 U.S. C. § 2000e— 5(g)(1). This provision closely tracked the language of *849 § 10(c) of the National Labor Relations Act (NLRA), 49 Stat. 454, 29 U.S. C. § 160(c), which similarly authorized orders requiring employers to take appropriate, remedial "affirmative action." § 160(c) (authorizing the National Labor Relations Board to issue an order "requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter"). See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, n. 11 (1975). The meaning of this provision of the NLRA prior to enactment of the Civil Rights Act of 1964, therefore, gives us guidance as to the proper meaning of the same language in § 706(g) of Title VII. In applying § 10(c) of the NLRA, the Board consistently had made awards of what it called "backpay" up to the date the employee was reinstated or returned to the position he should have been in had the violation of the NLRA not occurred, even if such event occurred after judgment. See, e. g., Nathanson v. NLRB, 344 U.S. 25, 29-30 (1952); NLRB v. Reeves Broadcasting & Development Corp., 336 F.2d 590, 593-594 (CA4 1964); NLRB v. Hill & Hill Truck Line, Inc., 266 F.2d 883, 887 (CA5 1959); Berger Polishing, Inc., 147 N. L. R. B. 21, 40 (1964); Lock Joint Pipe Co., 141 N. L. R. B. 943, 948 (1963). Consistent with the Board's interpretation of this provision of the NLRA, courts finding unlawful intentional discrimination in Title VII actions awarded this same type of backpay under § 706(g). See, e. g., Culpepper v. Reynolds Metals Co., 442 F.2d 1078, 1080 (CA5 1971); United States v. Georgia Power Co., 3 FEP Cases 767, 790 (ND Ga. 1971). In the Title VII context, this form of "backpay" occurring after the date of judgment is known today as "front pay." In 1972, Congress expanded § 706(g) to specify that a court could, in addition to awarding those remedies previously listed in the provision, award "any other equitable relief *850 as the court deems appropriate." After this amendment to § 706(g), courts endorsed a broad view of front pay. See, e. g., Patterson v. American Tobacco Co., 535 F.2d 257, 269 (CA4 1976) (stating that where reinstatement is not immediately feasible, backpay "should be supplemented by an award equal to the estimated present value of lost earnings that are reasonably likely to occur between the date of judgment and the time when the employee can assume his new position"); EEOC v. Enterprise Assn. Steamfitters, 542 F.2d 579, 590 (CA2 1976) (stating that backpay award would terminate on the date of actual remedying of discrimination); Bush v. Lone Star Steel Co., 373 F. Supp. 526, 538 (ED Tex. 1974) (ordering backpay from the date the employee would have been entitled to fill a vacancy but for racial discrimination to the date the employee would in all reasonable probability reach his rightful place). Courts recognized that reinstatement was not always a viable option, and that an award of front pay as a substitute for reinstatement in such cases was a necessary part of the "make whole" relief mandated by Congress and by this Court in Albemarle. See, e. g., Shore v. Federal Express Corp., 777 F.2d 1155, 1158— 1159 (CA6 1985) ("Front pay is . . . simply compensation for the post-judgment effects of past discrimination." It is awarded "to effectuate fully the `make whole' purposes of Title VII"); Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1066 (CA8 1988) (stating that front pay was appropriate given substantial animosity between parties where "the parties' relationship was not likely to improve, and the nature of the business required a high degree of mutual trust and confidence"); Fitzgerald v. Sirloin Stockade, Inc., 624 F. 2d, at 957 (upholding award of front pay where continuing hostility existed between the parties); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1347 (CA9 1987) (same). By 1991, virtually all of the courts of appeals had recognized that "front pay" was a remedy authorized *851 under § 706(g).[1] In fact, no court of appeals appears to have ever held to the contrary.[2] In 1991, without amending § 706(g), Congress further expanded the remedies available in cases of intentional employment discrimination to include compensatory and punitive damages. See 42 U.S. C. § 1981a(a)(1). At that time, Rev. Stat. § 1977, 42 U.S. C. § 1981, permitted the recovery of unlimited compensatory and punitive damages in cases of intentional race and ethnic discrimination, but no similar remedy existed in cases of intentional sex, religious, or disability discrimination. Thus, § 1981a brought all forms of intentional employment discrimination into alignment, at least with respect to the forms of relief available to successful plaintiffs. However, compensatory and punitive damages awarded under § 1981a may not exceed the statutory limitations set forth in § 1981a(b)(3), while such damages awarded under § 1981 are not limited by statute. *852 B In the abstract, front pay could be considered compensation for "future pecuniary losses," in which case it would be subject to the statutory cap. § 1981a(b)(3). The term "compensatory damages . . . for future pecuniary losses" is not defined in the statute, and, out of context, its ordinary meaning could include all payments for monetary losses after the date of judgment. However, we must not analyze one term of § 1981a in isolation. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 99 (1992) ("`[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law' "). When § 1981a is read as a whole, the better interpretation is that front pay is not within the meaning of compensatory damages in § 1981a(b)(3), and thus front pay is excluded from the statutory cap. In the Civil Rights Act of 1991, Congress determined that victims of employment discrimination were entitled to additional remedies. Congress expressly found that "additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace," without giving any indication that it wished to curtail previously available remedies. See Civil Rights Act of 1991, 105 Stat. 1071, § 2. Congress therefore made clear through the plain language of the statute that the remedies newly authorized under § 1981a were in addition to the relief authorized by § 706(g). Section 1981a(a)(1) provides that, in intentional discrimination cases brought under Title VII, "the complaining party may recover compensatory and punitive damages as allowed in subjection (b) of [§ 1981a], in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent." (Emphasis added.) And § 1981a(b)(2) states that "[c]ompensatory damages awarded under [§ 1981a] shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964. " *853 (Emphasis added.) According to these statutory provisions, if front pay was a type of relief authorized under § 706(g), it is excluded from the meaning of compensatory damages under § 1981a. As discussed above, the original language of § 706(g) authorizing backpay awards was modeled after the same language in the NLRA. This provision in the NLRA had been construed to allow awards of backpay up to the date of reinstatement, even if reinstatement occurred after judgment. Accordingly, backpay awards made for the period between the date of judgment and the date of reinstatement, which today are called front pay awards under Title VII, were authorized under § 706(g). As to front pay awards that are made in lieu of reinstatement, we construe § 706(g) as authorizing these awards as well. We see no logical difference between front pay awards made when there eventually is reinstatement and those made when there is not.[3] Moreover, to distinguish between the two cases would lead to the strange result that employees could receive front pay when reinstatement eventually is available but not when reinstatement is not an option—whether because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries that the discrimination has caused the plaintiff. Thus, the most egregious offenders could be subject to the least sanctions. Had Congress drawn such a line in the statute and foreclosed front pay awards in lieu of reinstatement, we certainly would honor that line. But, as written, the text of the statute does not lend itself to such a distinction, and we will not create one. The statute *854 authorizes courts to "order such affirmative action as may be appropriate." 42 U.S. C. § 2000e—5(g)(1). We conclude that front pay awards in lieu of reinstatement fit within this statutory term. Because front pay is a remedy authorized under § 706(g), Congress did not limit the availability of such awards in § 1981a. Instead, Congress sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay. * * * The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice O'Connor took no part in the consideration or decision of this case.

This case presents the question whether a front pay award is an element of compensatory damages under the Civil Rights Act of 11 We conclude that it is not I Petitioner Sharon Pollard sued her former employer, E I du Pont de Nemours and Company (DuPont), alleging that she had been subjected to a hostile work environment based on her sex, in violation of Title VII of the Civil Rights Act of 42 US C e et seq After a trial, the District Court found that Pollard was subjected to coworker sexual harassment of which her supervisors were aware The District Court further found that the harassment resulted in a medical leave of absence from her job for psychological assistance and her eventual dismissal for refusing to return to the same hostile work environment The court awarded Pollard $107,364 in backpay and benefits, $252,7 in attorney's fees, and, as relevant here, $300,000 in compensatory damages—the maximum permitted under the statutory cap for such damages in 42 US C 1981a(b)(3) *846 The Court of Appeals affirmed, concluding that the record demonstrated that DuPont employees engaged in flagrant discrimination based on sex and that DuPont managers and supervisors did not take adequate steps to stop it The issue presented for review here is whether front pay constitutes an element of "compensatory damages" under 42 US C 1981a and thus is subject to the statutory damages cap imposed by that section Although courts have defined "front pay" in numerous ways, front pay issimply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement For instance, when an appropriate position for the plaintiff is not immediately available without displacing an incumbent employee, courts have ordered reinstatement upon the opening of such a position and have ordered front pay to be paid until reinstatement occurs See, e g, ; In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement See, e g, ; For the purposes of this opinion, it is not necessary for us to explain when front pay is an appropriate remedy The question before us is only whether front pay, if found to be appropriate, is an element of compensatory damages under the Civil Rights Act of 11 and thus subject to the Act's statutory cap on such damages Here, the District Court observed that "the $300,00000 award is, in fact, insufficient to compensate plaintiff," but it stated that *847 it was bound by the Sixth Circuit's decision in which held that front pay was subject to the cap On appeal, Pollard argued that was wrongly decided because front pay is not an element of compensatory damages, but rather a replacement for the remedy of reinstatement in situations in which reinstatement would be inappropriate She also argued that 1981a, by its very terms, explicitly excludes from the statutory cap remedies that traditionally were available under Title VII, which she argued included front pay The Court of Appeals agreed with Pollard's arguments but considered itself bound by The Sixth Circuit declined to rehear the case en banc The Sixth Circuit's decision in was one of the first appellate opinions to decide whether front pay is an element of compensatory damages subject to the statutory cap set forth in 1981a(b)(3) Contrary to the Sixth Circuit's resolution of this question, the other Courts of Appeals to address it have concluded that front pay is a remedy that is not subject to the limitations of 1981a(b)(3) See, e g, ; ; at 1153— 1154; ; ; We granted certiorari to resolve this conflict II Plaintiffs who allege employment discrimination on the basis of sex traditionally have been entitled to such remedies as injunctions, reinstatement, backpay, lost benefits, and attorney's fees under 706(g) of the Civil Rights Act *848 of 42 US C e—5(g)(1) In the Civil Rights Act of 11, Congress expanded the remedies available to these plaintiffs by permitting, for the first time, the recovery of compensatory and punitive damages 42 US C 1981a(a)(1) ("[T]he complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of ") The amount of compensatory damages awarded under 1981a for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," and the amount of punitive damages awarded under 1981a, however, may not exceed the statutory cap set forth in 1981a(b)(3) The statutory cap is based on the number of people employed by the respondent In this case, the cap is $300,000 because DuPont has more than 500 employees The Sixth Circuit has concluded that front pay constitutes compensatory damages awarded for future pecuniary losses and thus is subject to the statutory cap of 1981a(b)(3) ; For the reasons discussed below, we conclude that front pay is not an element of compensatory damages within the meaning of 1981a, and, therefore, we hold that the statutory cap of 1981a(b)(3) is inapplicable to front pay A Under 706(g) of the Civil Rights Act of as originally enacted, when a court found that an employer had intentionally engaged in an unlawful employment practice, the court was authorized to "enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay" 42 US C e— 5(g)(1) This provision closely tracked the language of *849 10(c) of the National Labor Relations Act (NLRA), 49 Stat 454, 29 US C 160(c), which similarly authorized orders requiring employers to take appropriate, remedial "affirmative action" 160(c) (authorizing the National Labor Relations Board to issue an order "requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter") See also Albemarle Paper Co v Moody, 422 US 405, 419, n 11 The meaning of this provision of the NLRA prior to enactment of the Civil Rights Act of therefore, gives us guidance as to the proper meaning of the same language in 706(g) of Title VII In applying 10(c) of the NLRA, the Board consistently had made awards of what it called "backpay" up to the date the employee was reinstated or returned to the position he should have been in had the violation of the NLRA not occurred, even if such event occurred after judgment See, e g, Nathanson v NLRB, 344 US 25, ; NLRB v Reeves Broadcasting & Development Corp, 336 F2d ; NLRB v Hill & Hill Truck Line, Inc, 266 F2d 883, ; Berger Polishing, Inc, 147 N L R B 21, 40 ; Lock Joint Pipe Co, 141 N L R B 943, 948 (1963) Consistent with the Board's interpretation of this provision of the NLRA, courts finding unlawful intentional discrimination in Title VII actions awarded this same type of backpay under 706(g) See, e g, Culpepper v Reynolds Metals Co, 442 F2d 1078, ; United States v Georgia Power Co, 3 FEP Cases 767, 790 In the Title VII context, this form of "backpay" occurring after the date of judgment is known today as "front pay" In 1972, Congress expanded 706(g) to specify that a court could, in addition to awarding those remedies previously listed in the provision, award "any other equitable relief *850 as the court deems appropriate" After this amendment to 706(g), courts endorsed a broad view of front pay See, e g, Patterson v American Tobacco Co, 535 F2d 257, (stating that where reinstatement is not immediately feasible, backpay "should be supplemented by an award equal to the estimated present value of lost earnings that are reasonably likely to occur between the date of judgment and the time when the employee can assume his new position"); EEOC v Enterprise Assn Steamfitters, 542 F2d 579, ; Bush v Lone Star Steel Co, 373 F Supp 526, Courts recognized that reinstatement was not always a viable option, and that an award of front pay as a substitute for reinstatement in such cases was a necessary part of the "make whole" relief mandated by Congress and by this Court in Albemarle See, e g, Shore v Federal Express Corp, 777 F2d 1155, ("Front pay is simply compensation for the post-judgment effects of past discrimination" It is awarded "to effectuate fully the `make whole' purposes of Title VII"); Brooks v Woodline Motor Freight, Inc, 852 F2d 1061, ; 624 F 2d, at (upholding award of front pay where continuing hostility existed between the parties); Cassino v Reichhold Chems, Inc, 817 F2d 1338, By 11, virtually all of the courts of appeals had recognized that "front pay" was a remedy authorized *851 under 706(g)[1] In fact, no court of appeals appears to have ever held to the contrary[2] In 11, without amending 706(g), Congress further expanded the remedies available in cases of intentional employment discrimination to include compensatory and punitive damages See 42 US C 1981a(a)(1) At that time, Rev Stat 1977, 42 US C 1981, permitted the recovery of unlimited compensatory and punitive damages in cases of intentional race and ethnic discrimination, but no similar remedy existed in cases of intentional sex, religious, or disability discrimination Thus, 1981a brought all forms of intentional employment discrimination into alignment, at least with respect to the forms of relief available to successful plaintiffs However, compensatory and punitive damages awarded under 1981a may not exceed the statutory limitations set forth in 1981a(b)(3), while such damages awarded under 1981 are not limited by statute *852 B In the abstract, front pay could be considered compensation for "future pecuniary losses," in which case it would be subject to the statutory cap 1981a(b)(3) The term "compensatory damages for future pecuniary losses" is not defined in the statute, and, out of context, its ordinary meaning could include all payments for monetary losses after the date of judgment However, we must not analyze one term of 1981a in isolation See Gade v National Solid Wastes Management Assn, 505 US 88, When 1981a is read as a whole, the better interpretation is that front pay is not within the meaning of compensatory damages in 1981a(b)(3), and thus front pay is excluded from the statutory cap In the Civil Rights Act of 11, Congress determined that victims of employment discrimination were entitled to additional remedies Congress expressly found that "additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace," without giving any indication that it wished to curtail previously available remedies See Civil Rights Act of 11, 105 Stat 1071, 2 Congress therefore made clear through the plain language of the statute that the remedies newly authorized under 1981a were in addition to the relief authorized by 706(g) Section 1981a(a)(1) provides that, in intentional discrimination cases brought under Title VII, "the complaining party may recover compensatory and punitive damages as allowed in subjection (b) of [ 1981a], in addition to any relief authorized by section 706(g) of the Civil Rights Act of from the respondent" (Emphasis added) And 1981a(b)(2) states that "[c]ompensatory damages awarded under [ 1981a] shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of " *853 (Emphasis added) According to these statutory provisions, if front pay was a type of relief authorized under 706(g), it is excluded from the meaning of compensatory damages under 1981a As discussed above, the original language of 706(g) authorizing backpay awards was modeled after the same language in the NLRA This provision in the NLRA had been construed to allow awards of backpay up to the date of reinstatement, even if reinstatement occurred after judgment Accordingly, backpay awards made for the period between the date of judgment and the date of reinstatement, which today are called front pay awards under Title VII, were authorized under 706(g) As to front pay awards that are made in lieu of reinstatement, we construe 706(g) as authorizing these awards as well We see no logical difference between front pay awards made when there eventually is reinstatement and those made when there is not[3] Moreover, to distinguish between the two cases would lead to the strange result that employees could receive front pay when reinstatement eventually is available but not when reinstatement is not an option—whether because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries that the discrimination has caused the plaintiff Thus, the most egregious offenders could be subject to the least sanctions Had Congress drawn such a line in the statute and foreclosed front pay awards in lieu of reinstatement, we certainly would honor that line But, as written, the text of the statute does not lend itself to such a distinction, and we will not create one The statute *854 authorizes courts to "order such affirmative action as may be appropriate" 42 US C e—5(g)(1) We conclude that front pay awards in lieu of reinstatement fit within this statutory term Because front pay is a remedy authorized under 706(g), Congress did not limit the availability of such awards in 1981a Instead, Congress sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay * * * The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion It is so ordered Justice O'Connor took no part in the consideration or decision of this case

Justice Breyer

majority

Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal.

2000-02-22

https://www.courtlistener.com/opinion/118338/hunt-wesson-inc-v-franchise-tax-bd-of-cal/

https://www.courtlistener.com/api/rest/v3/clusters/118338/

1999-029

A State may tax a proportionate share of the income of a nondomiciliary corporation that carries out a particular business both inside and outside that State. Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 772 (1992). The State, however, may not tax income received by a corporation from an "` "unrelated business activity"` which constitutes a ` "discrete business enterprise."` " Id., at 773 (quoting Exxon Corp. v. Department of Revenue of Wis., 447 U.S. 207, 224 (1980), in turn quoting Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U.S. 425, 442, 439 (1980)). California's rules for taxing its share of a multistate corporation's income authorize a deduction for interest expense. But they permit (with one adjustment) use of that deduction only to the extent that the amount exceeds certain out-of-state income arising from the unrelated business activity of a discrete business enterprise, i. e., income that the State could not otherwise tax. We must decide whether those rules violate the Constitution's Due Process and Commerce Clauses. We conclude that they do. I The legal issue is less complicated than may first appear, as examples will help to show. California, like many other States, uses what is called a "unitary business" incomecalculation system for determining its taxable share of a multistate corporation's business income. In effect, that system first determines the corporation's total income from its nationwide business. During the years at issue, it then averaged three ratios—those of the firm's California property, payroll, and sales to total property, payroll, and sales— to make a combined ratio. Cal. Rev. & Tax Code Ann. *461 §§ 25128, 25129, 25132, 25134 (West 1979). Finally, it multiplies total income by the combined ratio. The result is "California's share," to which California then applies its corporate income tax. If, for example, an Illinois tin can manufacturer, doing business in California and elsewhere, earns $10 million from its total nationwide tin can sales, and if California's formula determines that the manufacturer does 10% of its business in California, then California will impose its income tax upon 10% of the corporation's tin can income, $1 million. The income of which California taxes a percentage is constitutionally limited to a corporation's "unitary" income. Unitary income normally includes all income from a corporation's business activities, but excludes income that "derive[s] from unrelated business activity which constitutes a discrete business enterprise," Allied-Signal, 504 U. S., at 773 (internal quotation marks omitted). As we have said, this latter "nonunitary" income normally is not taxable by any State except the corporation's State of domicile (and the States in which the "discrete enterprise" carries out its business). Ibid. Any income tax system must have rules for determining the amount of net income to be taxed. California's system, like others, basically does so by asking the corporation to add up its gross income and then deduct costs. One of the costs that California permits the corporation to deduct is interest expense. The statutory language that authorizes that deduction—the language here at issue—contains an important limitation. It says that the amount of "interest deductible" shall be the amount by which "interest expense exceeds interest and dividend income . . . not subject to allocation by formula," i. e., the amount by which the interest expense exceeds the interest and dividends that the nondomiciliary corporation has received from nonunitary business or investment. Cal. Rev. & Tax Code Ann. § 24344 (West 1979) (emphasis added); Appendix, infra. Suppose the Illinois *462 tin can manufacturer has interest expense of $150,000; and suppose it receives $100,000 in dividend income from a nonunitary New Zealand sheep-farming subsidiary. California's rule authorizes an interest deduction, not of $150,000, but of $50,000, for the deduction is allowed only insofar as the interest expense "exceeds" this other unrelated income. Other language in the statute makes the matter a little more complex. One part makes clear that, irrespective of nonunitary income, the corporation may use the deduction against unitary interest income that it earns. § 24344. This means that if the Illinois tin can manufacturer has earned $100,000 from tin can related interest, say, interest paid on its tin can receipt bank accounts, the manufacturer can use $100,000 of its interest expense deduction to offset that interest income (though it would still lose the remaining $50,000 of deduction because of income from the New Zealand sheep farm). Another part provides an exception to the extent that the subsidiary paying the dividend has paid taxes to California. §§ 24344, 24402. If the sheep farm were in California, not New Zealand (or at least to the extent it were taxable in California), the tin can manufacturer would not lose the deduction. We need not consider either of these complications here. One final complication involves a dispute between the parties over the amount of interest expense that the California statute at issue covers. Hunt-Wesson, Inc., claims that California (at least during the years at issue here) required interstate corporations first to determine what part of their interest expense was for interest related to the unitary business and what part was for interest related to other, nonunitary matters. It says that the statute then required it to put the latter to the side, so that only interest related to the unitary business was at issue. California agrees that the form it provided to corporations during the years at issue did work this way, but states that the form did not interpret the statute correctly. In its view, the statute takes all interest expense *463 into account. Apparently California now believes that, if the tin can manufacturer had $100,000 interest expense related to its tin can business, and another $50,000 interest expense related to the New Zealand sheep farm (say, money borrowed to buy shares in the farm), then California's statute would count a total interest expense of $150,000, all of which California would permit it to deduct from its unitary tin can business income if, for example, it had no nonunitary New Zealand sheep farm income in that particular year. This matter, arguably irrelevant to the tax years here in question (Hunt-Wesson reported no nonunitary interest expense), is also irrelevant to our legal result. Therefore, we need not consider this particular dispute further. The question before us then is reasonably straightforward: Does the Constitution permit California to carve out an exception to its interest expense deduction, which it measures by the amount of nonunitary dividend and interest income that the nondomiciliary corporation has received? Petitioner, Hunt-Wesson, Inc., is successor in interest to a nondomiciliary corporation. That corporation incurred interest expense during the years at issue. California disallowed the deduction for that expense insofar as the corporation had received relevant nonunitary dividend and interest income. Hunt-Wesson challenged the constitutional validity of the disallowance. The California Court of Appeal found it constitutional, No. A079969 (Dec. 11, 1998), App. 54; see also Pacific Tel. & Tel. Co. v. Franchise Tax Bd., 7 Cal. 3d 544, 498 P.2d 1030 (1972) (upholding statute), and the California Supreme Court denied review, App. 67. We granted certiorari to consider the question. II Relevant precedent makes clear that California's rule violates the Due Process and Commerce Clauses of the Federal Constitution. In Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159 (1983), this Court wrote that the "Due *464 Process and Commerce Clauses . . . do not allow a State to tax income arising out of interstate activities—even on a proportional basis—unless there is a ` "minimal connection" or "nexus" between the interstate activities and the taxing State, and "a rational relationship between the income attributed to the State and the intrastate values of the enterprise."` " Id., at 165-166 (quoting Exxon Corp., 447 U. S., at 219-220, in turn quoting Mobil Oil Corp., 445 U. S., at 436, 437). Cf. International Harvester Co. v. Department of Treasury, 322 U.S. 340, 353 (1944) (Rutledge, J., concurring in part and dissenting in part) ("If there is a want of due process to sustain" a tax, "by that fact alone any burden the tax imposes on the commerce among the states becomes `undue' "). The parties concede that the relevant income here—that which falls within the scope of the statutory phrase "not allocable by formula"—is income that, like the New Zealand sheep farm in our example, by itself bears no "rational relationship" or "nexus" to California. Under our precedent, this "nonunitary" income may not constitutionally be taxed by a State other than the corporation's domicile, unless there is some other connection between the taxing State and the income. Allied-Signal, 504 U. S., at 772-773. California's statute does not directly impose a tax on nonunitary income. Rather, it simply denies the taxpayer use of a portion of a deduction from unitary income (income like that from tin can manufacture in our example), income which does bear a "rational relationship" or "nexus" to California. But, as this Court once put the matter, a "`tax on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes.' " Trinova Corp. v. Michigan Dept. of Treasury, 498 U.S. 358, 374 (1991) (quoting Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L. Rev. 239, 242 (1960)). California's rule measures the amount of additional unitary income that becomes subject to its taxation (through reducing the deduction) by precisely the amount of nonunitary income that the taxpayer has received. And for that *465 reason, that which California calls a deduction limitation would seem, in fact, to amount to an impermissible tax. National Life Ins. Co. v. United States, 277 U.S. 508 (1928) (finding that a federal statute that reduced an insurance company's tax deduction for reserves by the amount of taxexempt interest the company received from a holding of "tax-free" municipal bonds constituted unlawful taxation of tax-exempt income). However, this principle does not end the matter. California offers a justification for its rule that seeks to relate the deduction limit to collection of California's tax on unitary income. If California could show that its deduction limit actually reflected the portion of the expense properly related to nonunitary income, the limit would not, in fact, be a tax on nonunitary income. Rather, it would merely be a proper allocation of the deduction. See Denman v. Slayton, 282 U.S. 514 (1931) (upholding Federal Tax Code's denial of interest expense deduction where borrowing is incurred to "purchase or carry" tax-exempt obligations). California points out that money is fungible, and that consequently it is often difficult to say whether a particular borrowing is "really" for the purpose of generating unitary income or for the purpose of generating nonunitary income. California's rule prevents a firm from claiming that it paid interest on borrowing for the first purpose (say, to build a tin can plant) when the borrowing is "really" for the second (say, to buy shares in the New Zealand sheep farm). Without some such rule, firms might borrow up to the hilt to support their (more highly taxed) unitary business needs, and use the freed unitary business resources to purchase (less highly taxed) nonunitary business assets. This "tax arbitrage" problem, California argues, is why this Court upheld the precursor of 26 U.S. C. § 265(a)(2), which denies the taxpayer an interest deduction insofar as the interest expense was "incurred or continued to purchase or carry" tax-exempt obligations or securities. Denman v. Slayton, *466 supra, at 519. This Court has consistently upheld deduction denials that represent reasonable efforts properly to allocate a deduction between taxable and tax-exempt income, even though such denials mean that the taxpayer owes more than he would without the denial. E. g., First Nat. Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U.S. 583 (1985). The California statute, however, pushes this concept past reasonable bounds. In effect, it assumes that a corporation that borrows any money at all has really borrowed that money to "purchase or carry," cf. 26 U.S. C. § 265(a)(2), its nonunitary investments (as long as the corporation has such investments), even if the corporation has put no money at all into nonunitary business that year. Presumably California believes that, in such a case, the unitary borrowing supports the nonunitary business to the extent that the corporation has any nonunitary investment because the corporation might have, for example, sold the sheep farm and used the proceeds to help its tin can operation instead of borrowing. At the very least, this last assumption is unrealistic. And that lack of practical realism helps explain why California's rule goes too far. A state tax code that unrealistically assumes that every tin can borrowing first helps the sheep farm (or the contrary view that every sheep farm borrowing first helps the tin can business) simply because of the theoretical possibility of a hypothetical sale of either business is a code that fails to "actually reflect a reasonable sense of how income is generated," Container Corp., 463 U. S., at 169, and in doing so assesses a tax upon constitutionally protected nonunitary income. That is so even if, as California claims, its rule attributes all interest expense both to unitary and to nonunitary income. And it is even more obviously so if, as Hunt-Wesson claims, California attributes all sheep-farmrelated borrowing to the sheep farm while attributing all tin-can-related borrowing first to the sheep farm as well. *467 No other taxing jurisdiction, whether federal or state, has taken so absolute an approach to the tax arbitrage problem that California presents. Federal law in comparable circumstances (allocating interest expense between domestic and foreign source income) uses a ratio of assets and gross income to allocate a corporation's total interest expense. See 26 CFR §§ 1.861-9T(f), (g) (1999). In a similar, but much more limited, set of circumstances, the federal rules use a kind of modified tracing approach—requiring that a certain amount of interest expense be allocated to foreign income in situations where a United States business group's loans to foreign subsidiaries and the group's total borrowing have increased relative to recent years (subject to a number of adjustments), and both loans and borrowing exceed certain amounts relative to total assets. See § 1.861-10. Some States other than California follow a tracing approach. See, e. g., D. C. Mun. Regs., Tit. 9, § 123.4 (1998); Ga. Rules and Regs. § 560-7—7.03(3) (1999). Some use a set of ratio-based formulas to allocate borrowing between the generation of unitary and nonunitary income. See, e. g., Ala. Code § 40-18-35(a)(2) (1998); La. Reg. § 1130(B)(1) (1988). And some use a combination of the two approaches. See, e. g., N. M. Admin. Code, Tit. 3, § 5.5.8 (1999); Utah Code Ann. § 59-7—101 (19) (1999). No other jurisdiction uses a rule like California's. Ratio-based rules like the one used by the Federal Government and those used by many States recognize that borrowing, even if supposedly undertaken for the unitary business, may also (as California argues) support the generation of nonunitary income. However, unlike the California rule, ratio-based rules do not assume that all borrowing first supports nonunitary investment. Rather, they allocate each borrowing between the two types of income. Although they may not reflect every firm's specific actions in any given year, it is reasonable to expect that, over some period of *468 time, the ratios used will reflect approximately the amount of borrowing that firms have actually devoted to generating each type of income. Conversely, it is simply not reasonable to expect that a rule that attributes all borrowing first to nonunitary investment will accurately reflect the amount of borrowing that has actually been devoted to generating each type of income. Because California's offset provision is not a reasonable allocation of expense deductions to the income that the expense generates, it constitutes impermissible taxation of income outside its jurisdictional reach. The provision therefore violates the Due Process and Commerce Clauses of the Constitution. The judgment of the California Court of Appeal is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT Cal. Rev. & Tax Code Ann. § 24344 (West 1979). "Interest; restrictions "(a) Except as limited by subsection (b), there shall be allowed as a deduction all interest paid or accrued during the income year on indebtedness of the taxpayer. "(b) [T]he interest deductible shall be an amount equal to interest income subject to allocation by formula, plus the amount, if any, by which the balance of interest expense exceeds interest and dividend income (except dividends deductible under the provisions of Section 24402) not subject to allocation by formula. Interest expense not included in the preceding sentence shall be directly offset against interest and dividend income (except dividends deductible under the provisions of Section 24402) not subject to allocation by formula." *469 "§ 24402. Dividends "Dividends received during the income year declared from income which has been included in the measure of the taxes imposed under Chapter 2 or Chapter 3 of this part upon the taxpayer declaring the dividends."

A State may tax a proportionate share of the income of a nondomiciliary corporation that carries out a particular business both inside and outside that State. The State, however, may not tax income received by a corporation from an "` "unrelated business activity"` which constitutes a ` "discrete business enterprise."` " in turn quoting Mobil Oil ). California's rules for taxing its share of a multistate corporation's income authorize a deduction for interest expense. But they permit (with one adjustment) use of that deduction only to the extent that the amount exceeds certain out-of-state income arising from the unrelated business activity of a discrete business enterprise, i. e., income that the State could not otherwise tax. We must decide whether those rules violate the Constitution's Due Process and Commerce Clauses. We conclude that they do. I The legal issue is less complicated than may first appear, as examples will help to show. California, like many other States, uses what is called a "unitary business" incomecalculation system for determining its taxable share of a multistate corporation's business income. In effect, that system first determines the corporation's total income from its nationwide business. During the years at issue, it then averaged three ratios—those of the firm's California property, payroll, and sales to total property, payroll, and sales— to make a combined ratio. Cal. Rev. & Tax Code Ann. *461 25128, 25129, 25132, 25134 (West 1979). Finally, it multiplies total income by the combined ratio. The result is "California's share," to which California then applies its corporate income tax. If, for example, an Illinois tin can manufacturer, doing business in California and elsewhere, earns $10 million from its total nationwide tin can sales, and if California's formula determines that the manufacturer does 10% of its business in California, then California will impose its income tax upon 10% of the corporation's tin can income, $1 million. The income of which California taxes a percentage is constitutionally limited to a corporation's "unitary" income. Unitary income normally includes all income from a corporation's business activities, but excludes income that "derive[s] from unrelated business activity which constitutes a discrete business enterprise," 504 U. S., As we have said, this latter "nonunitary" income normally is not taxable by any State except the corporation's State of domicile (and the States in which the "discrete enterprise" carries out its business). Any income tax system must have rules for determining the amount of net income to be taxed. California's system, like others, basically does so by asking the corporation to add up its gross income and then deduct costs. One of the costs that California permits the corporation to deduct is interest expense. The statutory language that authorizes that deduction—the language here at issue—contains an important limitation. It says that the amount of "interest deductible" shall be the amount by which "interest expense exceeds interest and dividend income not subject to allocation by formula," i. e., the amount by which the interest expense exceeds the interest and dividends that the nondomiciliary corporation has received from nonunitary business or investment. Cal. Rev. & Tax Code Ann. 24344 (West 1979) (emphasis added); Appendix, infra. Suppose the Illinois *462 tin can manufacturer has interest expense of $150,000; and suppose it receives $100,000 in dividend income from a nonunitary New Zealand sheep-farming subsidiary. California's rule authorizes an interest deduction, not of $150,000, but of $50,000, for the deduction is allowed only insofar as the interest expense "exceeds" this other unrelated income. Other language in the statute makes the matter a little more complex. One part makes clear that, irrespective of nonunitary income, the corporation may use the deduction against unitary interest income that it earns. 24344. This means that if the Illinois tin can manufacturer has earned $100,000 from tin can related interest, say, interest paid on its tin can receipt bank accounts, the manufacturer can use $100,000 of its interest expense deduction to offset that interest income (though it would still lose the remaining $50,000 of deduction because of income from the New Zealand sheep farm). Another part provides an exception to the extent that the subsidiary paying the dividend has paid taxes to California. 24344, 24402. If the sheep farm were in California, not New Zealand (or at least to the extent it were taxable in California), the tin can manufacturer would not lose the deduction. We need not consider either of these complications here. One final complication involves a dispute between the parties over the amount of interest expense that the California statute at issue covers. Hunt-Wesson, Inc., claims that California (at least during the years at issue here) required interstate corporations first to determine what part of their interest expense was for interest related to the unitary business and what part was for interest related to other, nonunitary matters. It says that the statute then required it to put the latter to the side, so that only interest related to the unitary business was at issue. California agrees that the form it provided to corporations during the years at issue did work this way, but states that the form did not interpret the statute correctly. In its view, the statute takes all interest expense *463 into account. Apparently California now believes that, if the tin can manufacturer had $100,000 interest expense related to its tin can business, and another $50,000 interest expense related to the New Zealand sheep farm (say, money borrowed to buy shares in the farm), then California's statute would count a total interest expense of $150,000, all of which California would permit it to deduct from its unitary tin can business income if, for example, it had no nonunitary New Zealand sheep farm income in that particular year. This matter, arguably irrelevant to the tax years here in question (Hunt-Wesson reported no nonunitary interest expense), is also irrelevant to our legal result. Therefore, we need not consider this particular dispute further. The question before us then is reasonably straightforward: Does the Constitution permit California to carve out an exception to its interest expense deduction, which it measures by the amount of nonunitary dividend and interest income that the nondomiciliary corporation has received? Petitioner, Hunt-Wesson, Inc., is successor in interest to a nondomiciliary corporation. That corporation incurred interest expense during the years at issue. California disallowed the deduction for that expense insofar as the corporation had received relevant nonunitary dividend and interest income. Hunt-Wesson challenged the constitutional validity of the disallowance. The California Court of Appeal found it constitutional, No. A079969 (Dec. 11, 1998), App. 54; see also Pacific Tel. & Tel. and the California Supreme Court denied review, App. 67. We granted certiorari to consider the question. II Relevant precedent makes clear that California's rule violates the Due Process and Commerce Clauses of the Federal Constitution. In Container of this Court wrote that the "Due *464 Process and Commerce Clauses do not allow a State to tax income arising out of interstate activities—even on a proportional basis—unless there is a ` "minimal connection" or "nexus" between the interstate activities and the taxing State, and "a rational relationship between the income attributed to the State and the intrastate values of the enterprise."` " (quoting Exxon -220, in turn quoting Mobil Oil 437). Cf. International Harvester ("If there is a want of due process to sustain" a tax, "by that fact alone any burden the tax imposes on the commerce among the states becomes `undue' "). The parties concede that the relevant income here—that which falls within the scope of the statutory phrase "not allocable by formula"—is income that, like the New Zealand sheep farm in our example, by itself bears no "rational relationship" or "nexus" to California. Under our precedent, this "nonunitary" income may not constitutionally be taxed by a State other than the corporation's domicile, unless there is some other connection between the taxing State and the income. 504 U. S., at -773. California's statute does not directly impose a tax on nonunitary income. Rather, it simply denies the taxpayer use of a portion of a deduction from unitary income (income like that from tin can manufacture in our example), income which does bear a "rational relationship" or "nexus" to California. But, as this Court once put the matter, a "`tax on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes.' " Trinova v. Michigan Dept. of Treasury, California's rule measures the amount of additional unitary income that becomes subject to its taxation (through reducing the deduction) by precisely the amount of nonunitary income that the taxpayer has received. And for that *465 reason, that which California calls a deduction limitation would seem, in fact, to amount to an impermissible tax. National Life Ins. However, this principle does not end the matter. California offers a justification for its rule that seeks to relate the deduction limit to collection of California's tax on unitary income. If California could show that its deduction limit actually reflected the portion of the expense properly related to nonunitary income, the limit would not, in fact, be a tax on nonunitary income. Rather, it would merely be a proper allocation of the deduction. See California points out that money is fungible, and that consequently it is often difficult to say whether a particular borrowing is "really" for the purpose of generating unitary income or for the purpose of generating nonunitary income. California's rule prevents a firm from claiming that it paid interest on borrowing for the first purpose (say, to build a tin can plant) when the borrowing is "really" for the second (say, to buy shares in the New Zealand sheep farm). Without some such rule, firms might borrow up to the hilt to support their (more highly taxed) unitary business needs, and use the freed unitary business resources to purchase (less highly taxed) nonunitary business assets. This "tax arbitrage" problem, California argues, is why this Court upheld the precursor of 26 U.S. C. 265(a)(2), which denies the taxpayer an interest deduction insofar as the interest expense was "incurred or continued to purchase or carry" tax-exempt obligations or securities. *466 This Court has consistently upheld deduction denials that represent reasonable efforts properly to allocate a deduction between taxable and tax-exempt income, even though such denials mean that the taxpayer owes more than he would without the denial. E. g., First Nat. Bank of The California statute, however, pushes this concept past reasonable bounds. In effect, it assumes that a corporation that borrows any money at all has really borrowed that money to "purchase or carry," cf. 26 U.S. C. 265(a)(2), its nonunitary investments (as long as the corporation has such investments), even if the corporation has put no money at all into nonunitary business that year. Presumably California believes that, in such a case, the unitary borrowing supports the nonunitary business to the extent that the corporation has any nonunitary investment because the corporation might have, for example, sold the sheep farm and used the proceeds to help its tin can operation instead of borrowing. At the very least, this last assumption is unrealistic. And that lack of practical realism helps explain why California's rule goes too far. A state tax code that unrealistically assumes that every tin can borrowing first helps the sheep farm (or the contrary view that every sheep farm borrowing first helps the tin can business) simply because of the theoretical possibility of a hypothetical sale of either business is a code that fails to "actually reflect a reasonable sense of how income is generated," Container and in doing so assesses a tax upon constitutionally protected nonunitary income. That is so even if, as California claims, its rule attributes all interest expense both to unitary and to nonunitary income. And it is even more obviously so if, as Hunt-Wesson claims, California attributes all sheep-farmrelated borrowing to the sheep farm while attributing all tin-can-related borrowing first to the sheep farm as well. *467 No other taxing jurisdiction, whether federal or state, has taken so absolute an approach to the tax arbitrage problem that California presents. Federal law in comparable circumstances (allocating interest expense between domestic and foreign source income) uses a ratio of assets and gross income to allocate a corporation's total interest expense. See 26 CFR 1.861-9T(f), (g) (1999). In a similar, but much more limited, set of circumstances, the federal rules use a kind of modified tracing approach—requiring that a certain amount of interest expense be allocated to foreign income in situations where a United States business group's loans to foreign subsidiaries and the group's total borrowing have increased relative to recent years (subject to a number of adjustments), and both loans and borrowing exceed certain amounts relative to total assets. See 1.861-10. Some States other than California follow a tracing approach. See, e. g., D. C. Mun. Regs., Tit. 9, 123.4 (1998); Ga. Rules and Regs. 560-7—7.03(3) (1999). Some use a set of ratio-based formulas to allocate borrowing between the generation of unitary and nonunitary income. See, e. g., Ala. Code 40-18-35(a)(2) (1998); La. Reg. 1130(B)(1) (1988). And some use a combination of the two approaches. See, e. g., N. M. Admin. Code, Tit. 3, 5.5.8 (1999); Utah Code Ann. 59-7—101 (19) (1999). No other jurisdiction uses a rule like California's. Ratio-based rules like the one used by the Federal Government and those used by many States recognize that borrowing, even if supposedly undertaken for the unitary business, may also (as California argues) support the generation of nonunitary income. However, unlike the California rule, ratio-based rules do not assume that all borrowing first supports nonunitary investment. Rather, they allocate each borrowing between the two types of income. Although they may not reflect every firm's specific actions in any given year, it is reasonable to expect that, over some period of *468 time, the ratios used will reflect approximately the amount of borrowing that firms have actually devoted to generating each type of income. Conversely, it is simply not reasonable to expect that a rule that attributes all borrowing first to nonunitary investment will accurately reflect the amount of borrowing that has actually been devoted to generating each type of income. Because California's offset provision is not a reasonable allocation of expense deductions to the income that the expense generates, it constitutes impermissible taxation of income outside its jurisdictional reach. The provision therefore violates the Due Process and Commerce Clauses of the Constitution. The judgment of the California Court of Appeal is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT Cal. Rev. & Tax Code Ann. 24344 (West 1979). "Interest; restrictions "(a) Except as limited by subsection (b), there shall be allowed as a deduction all interest paid or accrued during the income year on indebtedness of the taxpayer. "(b) [T]he interest deductible shall be an amount equal to interest income subject to allocation by formula, plus the amount, if any, by which the balance of interest expense exceeds interest and dividend income (except dividends deductible under the provisions of Section 24402) not subject to allocation by formula. Interest expense not included in the preceding sentence shall be directly offset against interest and dividend income (except dividends deductible under the provisions of Section 24402) not subject to allocation by formula." *469 " 24402. Dividends "Dividends received during the income year declared from income which has been included in the measure of the taxes imposed under Chapter 2 or Chapter 3 of this part upon the taxpayer declaring the dividends."

Justice Thomas

majority

National Park Hospitality Association v. Department of the Interior

2003-05-27

https://www.courtlistener.com/opinion/127928/national-park-hospitality-association-v-department-of-the-interior/

https://www.courtlistener.com/api/rest/v3/clusters/127928/

2002-059

1 Petitioner, a nonprofit trade association that represents concessioners doing business in the national parks, challenges a National Park Service (NPS) regulation that purports to render the Contract Disputes Act of 1978 (CDA), 92 Stat. 2383, 41 U.S. C. § 601 et seq., inapplicable to concession contracts. We conclude that the controversy is not yet ripe for judicial resolution. 2 * The CDA establishes rules governing disputes arising out of certain Government contracts.1 The statute provides that these disputes first be submitted to an agency's contracting officer. § 605. A Government contractor dissatisfied with the contracting officer's decision may seek review either from the United States Court of Federal Claims or from an administrative board in the agency. See §§ 606, 607(d), 609(a). Either decision may then be appealed to the United States Court of Appeals for the Federal Circuit.2 See 28 U.S. C. § 1295; 41 U.S. C. § 607(g). 3 Since 1916 Congress has charged NPS to "promote and regulate the use of the Federal areas known as national parks," "conserve the scenery and the natural and historic objects and the wild life therein," and "provide for [their] enjoyment [in a way that] will leave them unimpaired for the enjoyment of future generations." An Act To establish a National Park Service, 39 Stat. 535, 16 U.S. C. § 1. To make visits to national parks more enjoyable for the public, Congress authorized NPS to "grant privileges, leases, and permits for the use of land for the accommodation of visitors." § 3, 39 Stat. 535. Such "privileges, leases, and permits" have become embodied in national parks concession contracts. 4 The specific rules governing national parks concession contracts have changed over time. In 1998, however, Congress enacted the National Parks Omnibus Management Act of 1998 (1998 Act or Act), Pub. L. 105-391, 112 Stat. 3497 (codified with certain exceptions in 16 U.S. C. § § 5951-5966), establishing a new and comprehensive concession management program for national parks. The 1998 Act authorizes the Secretary of the Interior to enact regulations implementing the Act's provisions, § 5965. 5 NPS, to which the Secretary has delegated her authority under the 1998 Act, promptly began a rulemaking proceeding to implement the Act. After notice and comment, final regulations were issued in April 2000. 65 Fed. Reg. 20630 (2000) (codified in 36 CFR pt. 51). The regulations define the term "concession contract" as follows: 6 "A concession contract (or contract) means a binding written agreement between the Director and a concessioner . . . . Concession contracts are not contracts within the meaning of 41 U.S. C. 601 et seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions."3 36 CFR § 51.3 (2002). 7 Through this provision NPS took a position with respect to a longstanding controversy with the Department of Interior's Board of Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that NPS concession contracts were subject to the CDA, see R & R Enterprises, 89-2 B. C. A., ¶ 21708, pp. 109145-109147 (1989), and subsequent attempts by NPS to convince the IBCA otherwise proved unavailing, National Park Concessions, Inc., 94-3 B. C. A., ¶ 27104, pp. 135096-135098 (1994). II 8 Petitioner challenged the validity of § 51.3 in the District Court for the District of Columbia. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 142 F. Supp. 2d 54, 80-82 (2001). The District Court upheld the regulation, applying the deference principle of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The court concluded that the CDA is ambiguous on whether it applies to concession contracts and found NPS' interpretation of the CDA reasonable. 142 F. Supp. 2d, at 80-82. 9 The Court of Appeals for the District of Columbia Circuit affirmed, albeit on different grounds. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 282 F.3d 818, 834-835 (2002). Recognizing that NPS "does not administer the [CDA], and thus may not have interpretative authority over its provisions," the court placed no reliance on Chevron but simply "agree[d]" with NPS' reading of the CDA, finding that reading consistent with both the CDA and the 1998 Act. 282 F.3d, at 835. We granted certiorari to consider whether the CDA applies to contracts between NPS and concessioners in the national parks. 537 U.S. 1018 (2002). Because petitioner has brought a facial challenge to the regulation and is not litigating any concrete dispute with NPS, we asked the parties to provide supplemental briefing on whether the case is ripe for judicial action. Tr. of Oral Arg. 62. III 10 Ripeness is a justiciability doctrine designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967); accord, Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 732-733 (1998). The ripeness doctrine is "drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction," Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, n. 18 (1993) (citations omitted), but, even in a case raising only prudential concerns, the question of ripeness may be considered on a court's own motion. Ibid. (citing Regional Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974)). 11 Determining whether administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration. Abbott Laboratories, supra, at 149. "Absent [a statutory provision providing for immediate judicial review], a regulation is not ordinarily considered the type of agency action `ripe' for judicial review under the [Administrative Procedure Act (APA)] until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately....)" Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990). Under the facts now before us, we conclude this case is not ripe. 12 We turn first to the hardship inquiry. The federal respondents concede that, because NPS has no delegated rulemaking authority under the CDA, the challenged portion of § 51.3 cannot be a legislative regulation with the force of law. See Brief for Federal Respondents 15, n. 6; Supplemental Brief for Federal Respondents 6. They note, though, that "agencies may issue interpretive rules `to advise the public of the agency's construction of the statutes and rules which it administers,'" Brief for Federal Respondents 15, n. 6 (quoting Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995) (emphasis added)), and seek to characterize § 51.3 as such an interpretive rule. 13 We disagree. Unlike in Guernsey Memorial Hospital, where the agency issuing the interpretative guideline was responsible for administering the relevant statutes and regulations, NPS is not empowered to administer the CDA. Rather, the task of applying the CDA rests with agency contracting officers and boards of contract appeals, as well as the Federal Court of Claims, the Court of Appeals for the Federal Circuit, and, ultimately, this Court. Moreover, under the CDA, any authority regarding the proper arrangement of agency boards belongs to the Administrator for Federal Procurement Policy. See 41 U.S. C. § 607(h) ("Pursuant to the authority conferred under the Office of Federal Procurement Policy Act [41 U.S. C. § 401 et seq.], the Administrator is authorized and directed, as may be necessary or desirable to carry out the provisions of this chapter, to issue guidelines with respect to criteria for the establishment, functions, and procedures of the agency boards . . ."). Consequently, we consider § 51.3 to be nothing more than a "general statemen[t] of policy" designed to inform the public of NPS' views on the proper application of the CDA. 5 U.S. C. § 553(b)(3)(A). 14 Viewed in this light, § 51.3 does not create "adverse effects of a strictly legal kind," which we have previously required for a showing of hardship. Ohio Forestry Assn., Inc., 523 U. S., at 733. Just like the Forest Service plan at issue in Ohio Forestry, § 51.3 "do[es] not command anyone to do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or criminal liability; [and it] create[s] no legal rights or obligations." Ibid. Moreover, § 51.3 does not affect a concessioner's primary conduct. Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164 (1967); Ohio Forestry Assn., supra, at 733-734. Unlike the regulation at issue in Abbott Laboratories, which required drug manufacturers to change the labels, advertisements, and promotional materials they used in marketing prescription drugs on pain of criminal and civil penalties, see 387 U.S., at 152-153, the regulation here leaves a concessioner free to conduct its business as it sees fit. See also Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171 (1967) (regulations governing conditions for use of color additives in foods, drugs, and cosmetics were "self-executing" and had "an immediate and substantial impact upon the respondents"). 15 We have previously found that challenges to regulations similar to § 51.3 were not ripe for lack of a showing of hardship. In Toilet Goods Assn., for example, the Food and Drug Administration (FDA) issued a regulation requiring producers of color additives to provide FDA employees with access to all manufacturing facilities, processes, and formulae. 387 U.S., at 161-162. We concluded the case was not ripe for judicial review because the impact of the regulation could not "be said to be felt immediately by those subject to it in conducting their day-to-day affairs" and "no irremediabl[y] adverse consequences flow[ed] from requiring a later challenge." Id., at 164. Indeed, the FDA regulation was more onerous than § 51.3 because failure to comply with it resulted in the suspension of the producer's certification and, consequently, could affect production. See id., at 165, and n. 2. Here, by contrast, concessioners suffer no practical harm as a result of § 51.3. All the regulation does is announce the position NPS will take with respect to disputes arising out of concession contracts. While it informs the public of NPS' view that concessioners are not entitled to take advantage of the provisions of the CDA, nothing in the regulation prevents concessioners from following the procedures set forth in the CDA once a dispute over a concession contract actually arises. And it appears that, notwithstanding § 51.3, the IBCA has been quite willing to apply the CDA to certain concession contracts. Watch Hill Concessions, Inc., 01-1 B. C. A., ¶ 31298, pp. 154520-154521 (IBCA 2001) (concluding that concession contract was subject to the CDA despite the contrary language in § 51.3). 16 Petitioner contends that delaying judicial resolution of this issue will result in real harm because the applicability vel non of the CDA is one of the factors a concessioner takes into account when preparing its bid for NPS concession contracts. See Supplemental Brief for Petitioner 4-6. Petitioner's argument appears to be that mere uncertainty as to the validity of a legal rule constitutes a hardship for purposes of the ripeness analysis. We are not persuaded. If we were to follow petitioner's logic, courts would soon be overwhelmed with requests for what essentially would be advisory opinions because most business transactions could be priced more accurately if even a small portion of existing legal uncertainties were resolved.4 In short, petitioner has failed to demonstrate that deferring judicial review will result in real hardship. 17 We consider next whether the issue in this case is fit for review. Although the question presented here is "a purely legal one" and § 51.3 constitutes "final agency action" within the meaning of § 10 of the APA, 5 U.S. C. § 704, Abbott Laboratories, supra, at 149, we nevertheless believe that further factual development would "significantly advance our ability to deal with the legal issues presented," Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82 (1978); accord, Ohio Forestry Assn., Inc., 523 U. S., at 736-737; Toilet Goods Assn., supra, at 163. While the federal respondents generally argue that NPS was correct to conclude that the CDA does not cover concession contracts, they acknowledge that certain types of concession contracts might come under the broad language of the CDA. Brief for Federal Respondents 33-34. Similarly, while petitioner and respondent Xanterra Parks & Resorts, LLC, present a facial challenge to § 51.3, both rely on specific characteristics of certain types of concession contracts to support their positions. See Brief for Petitioner 21-23, 36; Brief for Respondent Xanterra Parks & Resorts, LLC, 20, 22. In light of the foregoing, we conclude that judicial resolution of the question presented here should await a concrete dispute about a particular concession contract. 18 * * * 19 For the reasons stated above, we vacate the judgment of the Court of Appeals insofar as it addressed the validity of § 51.3 and remand the case with instructions to dismiss the case with respect to this issue. 20 It is so ordered. Notes: 1 Title 41 U.S. C. § 602(a) provides: "Unless otherwise specifically provided herein, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) entered into by an executive agency for — "(1) the procurement of property, other than real property in being; "(2) the procurement of services; "(3) the procurement of construction, alteration, repair or maintenance of real property; or, "(4) the disposal of personal property." 2 The CDA also provides that a prevailing contractor is entitled to prejudgment interest. § 611 3 For ease of reference, throughout this opinion we will refer to the second sentence quoted in the text as § 51.3 4 Petitioner notes that its complaint challenged not only the regulation but also two specific prospectuses issued by NPS in late 2000. Thus, petitioner argues, even if the first challenge is not ripe, the latter two are reviewable under the Tucker Act, 28 U.S. C. § 1491(b)(1). See Supplemental Brief for Petitioner 6-8. Petitioner did not seek certiorari review on these issues; accordingly, we decline to consider them. See this Court's Rule 14.1(a);Yee v. Escondido, 503 U.S. 519, 535-536 (1992). Similarly, JUSTICE BREYER's reliance on the Tucker Act to show that the hardship requirement of Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), has been satisfied, see post, at 820-821 (dissenting opinion), is misplaced. The fact that one "congressional statute" authorizes "immediate judicial relief from [certain types of] agency determinations," post, at 820, says nothing about whether "immediate judicial review" is advisable for challenges brought against other types of agency actions based on a different statute. 21 JUSTICE STEVENS, concurring in the judgment.

1 Petitioner, a nonprofit trade association that represents concessioners doing business in the national parks, challenges a National Park Service (NPS) regulation that purports to render the Contract Disputes Act of 1978 (CDA), 41 U.S. C. 601 et seq., inapplicable to concession contracts. We conclude that the controversy is not yet ripe for judicial resolution. 2 * The CDA establishes rules governing disputes arising out of certain Government contracts.1 The statute provides that these disputes first be submitted to an agency's contracting officer. 605. A Government contractor dissatisfied with the contracting officer's decision may seek review either from the United States Court of Federal Claims or from an administrative board in the agency. See 606, 607(d), 609(a). Either decision may then be appealed to the United States Court of Appeals for the Federal Circuit.2 See 28 U.S. C. 1295; 41 U.S. C. 607(g). 3 Since 1916 Congress has charged NPS to "promote and regulate the use of the Federal areas known as national parks," "conserve the scenery and the natural and historic objects and the wild life therein," and "provide for [their] enjoyment [in a way that] will leave them unimpaired for the enjoyment of future generations." An Act To establish a National Park Service, 16 U.S. C. 1. To make visits to national parks more enjoyable for the public, Congress authorized NPS to "grant privileges, leases, and permits for the use of land for the accommodation of visitors." 3, Such "privileges, leases, and permits" have become embodied in national parks concession contracts. 4 The specific rules governing national parks concession contracts have changed over time. In 18, however, Congress enacted the National Parks Omnibus Management Act of 18 (18 Act or Act), Stat. 3497 (codified with certain exceptions in 16 U.S. C. 5951-5966), establishing a new and comprehensive concession management program for national parks. The 18 Act authorizes the Secretary of the Interior to enact regulations implementing the Act's provisions, 5965. 5 NPS, to which the Secretary has delegated her authority under the 18 Act, promptly began a rulemaking proceeding to implement the After notice and comment, final regulations were issued in April 2000. (2000) The regulations define the term "concession contract" as follows: 6 "A concession contract (or contract) means a binding written agreement between the Director and a concessioner Concession contracts are not contracts within the meaning of 41 U.S. C. 601 et seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions."3 36 CFR 51.3 7 Through this provision NPS took a position with respect to a longstanding controversy with the Department of Interior's Board of Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that NPS concession contracts were subject to the CDA, see R & R Enterprises, 89-2 B. C. A., ¶ 21708, pp. 109145-109147 (1989), and subsequent attempts by NPS to convince the IBCA otherwise proved unavailing, National Park Concessions, 94-3 B. C. A., ¶ 27104, pp. 135096-135098 (14). II 8 Petitioner challenged the validity of 51.3 in the District Court for the District of Columbia. Amfac Resorts, L. L. The District Court upheld the regulation, applying the deference principle of Chevron U. S. A. The court concluded that the CDA is ambiguous on whether it applies to concession contracts and found NPS' interpretation of the CDA 142 F. Supp. 2d, at 9 The Court of Appeals for the District of Columbia Circuit affirmed, albeit on different grounds. Amfac Resorts, L. L. Recognizing that NPS "does not administer the [CDA], and thus may not have interpretative authority over its provisions," the court placed no reliance on Chevron but simply "agree[d]" with NPS' reading of the CDA, finding that reading consistent with both the CDA and the 18 We granted certiorari to consider whether the CDA applies to contracts between NPS and concessioners in the national parks. Because petitioner has brought a facial challenge to the regulation and is not litigating any concrete dispute with NPS, we asked the parties to provide supplemental briefing on whether the case is ripe for judicial action. Tr. of Oral Arg. 62. III 10 Ripeness is a justiciability doctrine designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott ; accord, Ohio Forestry The ripeness doctrine is "drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction," but, even in a case raising only prudential concerns, the question of ripeness may be considered on a court's own motion. ). 11 Determining whether administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration. Abbott "Absent [a statutory provision providing for immediate judicial review], a regulation is not ordinarily considered the type of agency action `ripe' for judicial review under the [Administrative Procedure Act (APA)] until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately.)" Under the facts now before us, we conclude this case is not ripe. 12 We turn first to the hardship inquiry. The federal respondents concede that, because NPS has no delegated rulemaking authority under the CDA, the challenged portion of 51.3 cannot be a legislative regulation with the force of law. See Brief for Federal Respondents 15, n. 6; Supplemental Brief for Federal Respondents 6. They note, though, that "agencies may issue interpretive rules `to advise the public of the agency's construction of the statutes and rules which it administers,'" Brief for Federal Respondents 15, n. 6 ), and seek to characterize 51.3 as such an interpretive rule. 13 We disagree. Unlike in Guernsey Memorial Hospital, where the agency issuing the interpretative guideline was responsible for administering the relevant statutes and regulations, NPS is not empowered to administer the CDA. Rather, the task of applying the CDA rests with agency contracting officers and boards of contract appeals, as well as the Federal Court of Claims, the Court of Appeals for the Federal Circuit, and, ultimately, this Court. Moreover, under the CDA, any authority regarding the proper arrangement of agency boards belongs to the Administrator for Federal Procurement Policy. See 41 U.S. C. 607(h) ("Pursuant to the authority conferred under the Office of Federal Procurement Policy Act [41 U.S. C. 401 et seq.], the Administrator is authorized and directed, as may be necessary or desirable to carry out the provisions of this chapter, to issue guidelines with respect to criteria for the establishment, functions, and procedures of the agency boards"). Consequently, we consider 51.3 to be nothing more than a "general statemen[t] of policy" designed to inform the public of NPS' views on the proper application of the CDA. 5 U.S. C. 553(b)(3)(A). 14 Viewed in this light, 51.3 does not create "adverse effects of a strictly legal kind," which we have previously required for a showing of hardship. Ohio Forestry Just like the Forest Service plan at issue in Ohio Forestry, 51.3 "do[es] not command anyone to do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or criminal liability; [and it] create[s] no legal rights or obligations." Moreover, 51.3 does not affect a concessioner's primary conduct. Toilet Goods v. Gardner, ; Ohio Forestry Unlike the regulation at issue in Abbott which required drug manufacturers to change the labels, advertisements, and promotional materials they used in marketing prescription drugs on pain of criminal and civil penalties, see -153, the regulation here leaves a concessioner free to conduct its business as it sees fit. See also Gardner v. Toilet Goods 15 We have previously found that challenges to regulations similar to 51.3 were not ripe for lack of a showing of hardship. In Toilet Goods for example, the Food and Drug Administration (FDA) issued a regulation requiring producers of color additives to provide FDA employees with access to all manufacturing facilities, processes, and -162. We concluded the case was not ripe for judicial review because the impact of the regulation could not "be said to be felt immediately by those subject to it in conducting their day-to-day affairs" and "no irremediabl[y] adverse consequences flow[ed] from requiring a later challenge." at Indeed, the FDA regulation was more onerous than 51.3 because failure to comply with it resulted in the suspension of the producer's certification and, consequently, could affect production. See and n. 2. Here, by contrast, concessioners suffer no practical harm as a result of 51.3. All the regulation does is announce the position NPS will take with respect to disputes arising out of concession contracts. While it informs the public of NPS' view that concessioners are not entitled to take advantage of the provisions of the CDA, nothing in the regulation prevents concessioners from following the procedures set forth in the CDA once a dispute over a concession contract actually arises. And it appears that, notwithstanding 51.3, the IBCA has been quite willing to apply the CDA to certain concession contracts. Watch Hill Concessions, 01-1 B. C. A., ¶ 31298, pp. 154520-154521 (concluding that concession contract was subject to the CDA despite the contrary language in 51.3). 16 Petitioner contends that delaying judicial resolution of this issue will result in real harm because the applicability vel non of the CDA is one of the factors a concessioner takes into account when preparing its bid for NPS concession contracts. See Supplemental Brief for Petitioner 4-6. Petitioner's argument appears to be that mere uncertainty as to the validity of a legal rule constitutes a hardship for purposes of the ripeness analysis. We are not persuaded. If we were to follow petitioner's logic, courts would soon be overwhelmed with requests for what essentially would be advisory opinions because most business transactions could be priced more accurately if even a small portion of existing legal uncertainties were resolved.4 In short, petitioner has failed to demonstrate that deferring judicial review will result in real hardship. 17 We consider next whether the issue in this case is fit for review. Although the question presented here is "a purely legal one" and 51.3 constitutes "final agency action" within the meaning of 10 of the APA, 5 U.S. C. 704, Abbott we nevertheless believe that further factual development would "significantly advance our ability to deal with the legal issues presented," Duke Power Co. v. Carolina Environmental Study Group, ; accord, Ohio Forestry -737; Toilet Goods While the federal respondents generally argue that NPS was correct to conclude that the CDA does not cover concession contracts, they acknowledge that certain types of concession contracts might come under the broad language of the CDA. Brief for Federal Respondents 33-34. Similarly, while petitioner and respondent Xanterra Parks & Resorts, LLC, present a facial challenge to 51.3, both rely on specific characteristics of certain types of concession contracts to support their positions. See Brief for Petitioner 21-23, 36; Brief for Respondent Xanterra Parks & Resorts, LLC, 20, 22. In light of the foregoing, we conclude that judicial resolution of the question presented here should await a concrete dispute about a particular concession contract. 18 * * * 19 For the reasons stated above, we vacate the judgment of the Court of Appeals insofar as it addressed the validity of 51.3 and remand the case with instructions to dismiss the case with respect to this issue. 20 It is so ordered. Notes: 1 Title 41 U.S. C. 602(a) provides: "Unless otherwise specifically provided herein, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) entered into by an executive agency for — "(1) the procurement of property, other than real property in being; "(2) the procurement of services; "(3) the procurement of construction, alteration, repair or maintenance of real property; or, "(4) the disposal of personal property." 2 The CDA also provides that a prevailing contractor is entitled to prejudgment interest. 611 3 For ease of reference, throughout this opinion we will refer to the second sentence quoted in the text as 51.3 4 Petitioner notes that its complaint challenged not only the regulation but also two specific prospectuses issued by NPS in late 2000. Thus, petitioner argues, even if the first challenge is not ripe, the latter two are reviewable under the Tucker Act, 28 U.S. C. 1491(b)(1). See Supplemental Brief for Petitioner 6-8. Petitioner did not seek certiorari review on these issues; accordingly, we decline to consider them. See this Court's Rule (12). Similarly, JUSTICE BREYER's reliance on the Tucker Act to show that the hardship requirement of Abbott has been satisfied, see post, at 0-1 (dissenting opinion), is misplaced. The fact that one "congressional statute" authorizes "immediate judicial relief from [certain types of] agency determinations," post, at 0, says nothing about whether "immediate judicial review" is advisable for challenges brought against other types of agency actions based on a different statute. 21 JUSTICE STEVENS, concurring in the judgment.

Justice Stevens

concurring

National Park Hospitality Association v. Department of the Interior

2003-05-27

https://www.courtlistener.com/opinion/127928/national-park-hospitality-association-v-department-of-the-interior/

https://www.courtlistener.com/api/rest/v3/clusters/127928/

2002-059

22 Petitioner seeks this Court's resolution of the straightforward legal question whether the Contract Disputes Act of 1978 (CDA), 41 U.S. C. § 601 et seq., applies to concession contracts with the National Park Service. Though this question is one that would otherwise be appropriate for this Court to decide, in my view petitioner has not satisfied the threshold requirement of alleging sufficient injury to invoke federal-court jurisdiction. If such allegations of injury were present, however, this case would not raise any of the concerns that the ripeness doctrine was designed to avoid. 23 * The CDA provides certain significant protections for private parties contracting with federal agencies. It authorizes de novo review of a contractor's disputed decision, payment of prejudgment interest if a dispute with the agency is resolved in the contractor's favor, and expedited procedures for resolving minor disputes. §§ 607-612. The value to contractors of these protections has not been quantified in this case, but the protections are unquestionably significant. 24 Ever since the enactment of the CDA in 1978, the National Park Service has insisted that the statute does not apply to contracts with concessionaires who operate restaurants, lodges, and gift shops in the national parks. See, e. g., Lodging of Federal Respondents 1. In its view, the statute applies to Government contracts involving the procurement of goods or services that the Government agrees to pay for, not to licenses issued by the Government to concessionaires who sell goods and services to the public. After the enactment of the National Parks Omnibus Management Act of 1998, 16 U.S. C. §§ 5951-5966, the Park Service issued a regulation restating that position. 36 CFR § 51.3 (2002). There is nothing tentative or inconclusive about the agency's position. The promulgation of the regulation indicated that the agency had determined that a clear statement of its interpretation of the CDA would be useful to potential concessionaires bidding for future contracts. Under the Park Service's view, nearly 600 concession contracts in 131 national parks fall outside of the CDA. Lodging of Federal Respondents 6. 25 Petitioner is a trade association whose members are parties to such contracts and periodically enter into negotiations for future contracts. They are undisputedly interested in knowing whether disputes that are sure to arise under some of those contracts will be resolved pursuant to the CDA procedures or the less favorable procedures that will apply if the Park Service regulation is valid. II 26 In our leading case discussing the "ripeness doctrine" we explained that the question whether a controversy is "ripe" for judicial resolution has a "twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967). Both aspects of the inquiry involve the exercise of judgment, rather than the application of a black-letter rule. 27 The first aspect is the more important and it is satisfied in this case. The CDA applies to any express or implied contract for the procurement of property, services, or construction. 41 U.S. C. § 602(a). In the view of the Park Service, a procurement contract is one that obligates the Government to pay for goods and services that it receives, whereas concession contracts authorize third parties to provide services to park area visitors. Petitioner, on the other hand, argues that the contracts provide for the performance of services that discharge a public duty even though the Government does not pay the concessionaires. Whichever view may better reflect the intent of the Congress that enacted the CDA, it is perfectly clear that this question of statutory interpretation is as "fit" for judicial decision today as it will ever be. Even if there may be a few marginal cases in which the applicability of the CDA may depend on unique facts, the regulation's blanket exclusion of concession contracts is either a correct or an incorrect interpretation of the statute. The issue has been fully briefed and argued and, in my judgment, is ripe for decision. 28 The second aspect of the ripeness inquiry is less clear and less important. If there were reason to believe that further development of the facts would clarify the legal question, or that the agency's view was tentative or apt to be modified, only a strong showing of hardship to the parties would justify a prompt decision. In this case, it is probably correct that the hardship associated with a delayed decision is minimal. On the other hand, as the Park Service's decision to promulgate the regulation demonstrates, eliminating the present uncertainty about the applicable dispute resolution procedures will provide a benefit for all interested parties. If petitioner had alleged sufficient injury arising from the Park Service's position, I would favor the exercise of our discretion to consider the case ripe for decision. Because such an allegation of injury is absent, however, petitioner does not have standing to have this claim adjudicated. III 29 To establish an Article III case or controversy, a litigant must establish that he has "standing." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). To have standing, a "plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984). This requirement specifically applies to parties challenging the validity of administrative regulations. See Sierra Club v. Morton, 405 U.S. 727, 735 (1972). 30 In the complaint filed in the District Court, petitioner alleged that the resolution of the merits of its dispute over the validity of the Park Service regulation was important, but it failed to allege that the existence of the regulation had caused any injury to it or to its members: "The applicability of the CDA to concession contracts is important to concessioners because NPS concession contracts are of lengthy duration, often require significant upfront financial commitments, and by their terms provide the agency with broad unilateral discretion to alter many aspects of those contracts over time. The unlawful decision by the NPS to exempt itself from the CDA is thus of great importance to the contract solicitation process." App. 22. 31 At oral argument, counsel reiterated that the resolution of this question was "important" and that concessionaires "need to know now, in terms of deciding whether to bid on certain contracts, what their rights are under those contracts." Tr. of Oral Arg. 7-8. After argument, when asked to brief the issue of ripeness, petitioner stated that its members "need to know before a dispute arises — and in fact, before deciding whether to bid on a concessions contract — what procedural mechanisms will apply to contractual disputes," and that "the prices at which concessioners `compete for Government contract business' would be directly affected." Supplemental Brief for Petitioner 1, 5 (citations omitted). It is fair to infer from the record before us, however, that petitioner's members have bid on, and been awarded, numerous contracts without having the benefit of a definitive answer to the important legal question that their complaint has identified. 32 Neither in its complaint in the District Court nor in its briefing or argument before this Court has petitioner identified a specific incident in which the Park Service's regulation caused a concessionaire to refuse to bid on a contract, to modify its bid, or to suffer any other specific injury. Rather, petitioner has focused entirely on the importance of knowing whether the Park Service's position is valid. While it is no doubt important for petitioner and its members to know as much as possible about the future of their business transactions, importance does not necessarily establish injury. Though some of petitioner's members may well have suffered some sort of injury from the Park Service's regulation, neither the allegations of the complaint nor the evidence in the record identifies any specific injury that would be redressed by a favorable decision on the merits of the case. Accordingly, petitioner has no standing to pursue its claim. 33 For this reason, I concur in the Court's judgment.

22 Petitioner seeks this Court's resolution of the straightforward legal question whether the Contract Disputes Act of 1978 (CDA), 41 U.S. C. 601 et seq., applies to concession contracts with the National Park Service. Though this question is one that would otherwise be appropriate for this Court to decide, in my view petitioner has not satisfied the threshold requirement of alleging sufficient injury to invoke federal-court jurisdiction. If such allegations of injury were present, however, this case would not raise any of the concerns that the ripeness doctrine was designed to avoid. 23 * The CDA provides certain significant protections for private parties contracting with federal agencies. It authorizes de novo review of a contractor's disputed decision, payment of prejudgment interest if a dispute with the agency is resolved in the contractor's favor, and expedited procedures for resolving minor disputes. 607-612. The value to contractors of these protections has not been quantified in this case, but the protections are unquestionably significant. 24 Ever since the enactment of the CDA in 1978, the National Park Service has insisted that the statute does not apply to contracts with concessionaires who operate restaurants, lodges, and gift shops in the national parks. See, e. g., Lodging of Federal Respondents 1. In its view, the statute applies to Government contracts involving the procurement of goods or services that the Government agrees to pay for, not to licenses issued by the Government to concessionaires who sell goods and services to the public. After the enactment of the National Parks Omnibus Management Act of 1998, 16 U.S. C. 5951-5966, the Park Service issued a regulation restating that position. 36 CFR 51.3 (2002). There is nothing tentative or inconclusive about the agency's position. The promulgation of the regulation indicated that the agency had determined that a clear statement of its interpretation of the CDA would be useful to potential concessionaires bidding for future contracts. Under the Park Service's view, nearly 600 concession contracts in 131 national parks fall outside of the CDA. Lodging of Federal Respondents 6. 25 Petitioner is a trade association whose members are parties to such contracts and periodically enter into negotiations for future contracts. They are undisputedly interested in knowing whether disputes that are sure to arise under some of those contracts will be resolved pursuant to the CDA procedures or the less favorable procedures that will apply if the Park Service regulation is valid. II 26 In our leading case discussing the "ripeness doctrine" we explained that the question whether a controversy is "ripe" for judicial resolution has a "twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Both aspects of the inquiry involve the exercise of judgment, rather than the application of a black-letter rule. 27 The first aspect is the more important and it is satisfied in this case. The CDA applies to any express or implied contract for the procurement of property, services, or construction. 41 U.S. C. 602(a). In the view of the Park Service, a procurement contract is one that obligates the Government to pay for goods and services that it receives, whereas concession contracts authorize third parties to provide services to park area visitors. Petitioner, on the other hand, argues that the contracts provide for the performance of services that discharge a public duty even though the Government does not pay the concessionaires. Whichever view may better reflect the intent of the Congress that enacted the CDA, it is perfectly clear that this question of statutory interpretation is as "fit" for judicial decision today as it will ever be. Even if there may be a few marginal cases in which the applicability of the CDA may depend on unique facts, the regulation's blanket exclusion of concession contracts is either a correct or an incorrect interpretation of the statute. The issue has been fully briefed and argued and, in my judgment, is ripe for decision. 28 The second aspect of the ripeness inquiry is less clear and less important. If there were reason to believe that further development of the facts would clarify the legal question, or that the agency's view was tentative or apt to be modified, only a strong showing of hardship to the parties would justify a prompt decision. In this case, it is probably correct that the hardship associated with a delayed decision is minimal. On the other hand, as the Park Service's decision to promulgate the regulation demonstrates, eliminating the present uncertainty about the applicable dispute resolution procedures will provide a benefit for all interested parties. If petitioner had alleged sufficient injury arising from the Park Service's position, I would favor the exercise of our discretion to consider the case ripe for decision. Because such an allegation of injury is absent, however, petitioner does not have standing to have this claim adjudicated. III 29 To establish an Article III case or controversy, a litigant must establish that he has "standing." To have standing, a "plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." This requirement specifically applies to parties challenging the validity of administrative regulations. See Sierra 30 In the complaint filed in the District Court, petitioner alleged that the resolution of the merits of its dispute over the validity of the Park Service regulation was important, but it failed to allege that the existence of the regulation had caused any injury to it or to its members: "The applicability of the CDA to concession contracts is important to concessioners because NPS concession contracts are of lengthy duration, often require significant upfront financial commitments, and by their terms provide the agency with broad unilateral discretion to alter many aspects of those contracts over time. The unlawful decision by the NPS to exempt itself from the CDA is thus of great importance to the contract solicitation process." App. 22. 31 At oral argument, counsel reiterated that the resolution of this question was "important" and that concessionaires "need to know now, in terms of deciding whether to bid on certain contracts, what their rights are under those contracts." Tr. of Oral Arg. 7-8. After argument, when asked to brief the issue of ripeness, petitioner stated that its members "need to know before a dispute arises — and in fact, before deciding whether to bid on a concessions contract — what procedural mechanisms will apply to contractual disputes," and that "the prices at which concessioners `compete for Government contract business' would be directly affected." Supplemental Brief for Petitioner 1, 5 (citations omitted). It is fair to infer from the record before us, however, that petitioner's members have bid on, and been awarded, numerous contracts without having the benefit of a definitive answer to the important legal question that their complaint has identified. 32 Neither in its complaint in the District Court nor in its briefing or argument before this Court has petitioner identified a specific incident in which the Park Service's regulation caused a concessionaire to refuse to bid on a contract, to modify its bid, or to suffer any other specific injury. Rather, petitioner has focused entirely on the importance of knowing whether the Park Service's position is valid. While it is no doubt important for petitioner and its members to know as much as possible about the future of their business transactions, importance does not necessarily establish injury. Though some of petitioner's members may well have suffered some sort of injury from the Park Service's regulation, neither the allegations of the complaint nor the evidence in the record identifies any specific injury that would be redressed by a favorable decision on the merits of the case. Accordingly, petitioner has no standing to pursue its claim. 33 For this reason, I concur in the Court's judgment.

Justice Breyer

dissenting

National Park Hospitality Association v. Department of the Interior

2003-05-27

https://www.courtlistener.com/opinion/127928/national-park-hospitality-association-v-department-of-the-interior/

https://www.courtlistener.com/api/rest/v3/clusters/127928/

2002-059

35 Like the majority, I believe that petitioner National Park Hospitality Association has standing here to pursue its legal claim, namely, that the dispute resolution procedures set forth in the Contract Disputes Act of 1978 (CDA), 41 U.S. C. § 601 et seq., apply to national park concession contracts. But, unlike the majority, I believe that the question is ripe for our consideration. 36 I cannot agree with JUSTICE STEVENS that petitioner lacks Article III standing to bring suit on behalf of its members. See ante, at 815-816 and this page (opinion concurring in judgment). In my view, the National Park Service's definition of "concession contract" to exclude the CDA's protections (a definition embodied in the regulation about which petitioner complains, see 36 CFR § 51.3 (2002)) causes petitioner and its members "injury in fact." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (discussing requirements of "injury in fact," causation, and redressability); see also Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977) (association's standing based on injury to a member). 37 For one thing, many of petitioner's members are parties to, as well as potential bidders for, park concession contracts. Lodging for Federal Respondents 6 (listing 590 concession contracts in 131 parks). Those members will likely find that disputes arise under the contracts. And in resolving such disputes, the Park Service, following its regulation, will reject the concessioners' entitlement to the significant protections or financial advantages that the CDA provides. See 41 U.S. C. § § 605-612; ante, at 813-814 (STEVENS, J., concurring in judgment). In the circumstances present here, that kind of injury, though a future one, is concrete and likely to occur. 38 For another thing, the challenged Park Service interpretation causes a present injury. If the CDA does not apply to concession contract disagreements, as the Park Service regulation declares, then some of petitioner's members must plan now for higher contract implementation costs. Given the agency's regulation, bidders will likely be forced to pay more to obtain, or to retain, a concession contract than they believe the contract is worth. That is what petitioner argues. Supplemental Brief for Petitioner 4-6. See also App. to Supplemental Brief for Petitioner 3a-4a. Certain general allegations in the underlying complaints support this claim. See, e.g., App. 20-22, ¶¶ 35, 61-67; Amfac Resorts, L. L. C. Complaint in No. 1:00CV02838 (DC), pp. 4-5, ¶ 8 (available in Clerk of Court's case file); id., at 31-33, ¶¶ 102-111. Cf. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 282 F.3d 818, 830 (CADC 2002). And several uncontested circumstances indicate that such allegations are likely to prove true. 39 First, as the record makes clear, petitioner has a widespread membership, and many of its members regularly bid on contracts that, through cross-references to the Park Service regulation, embody the Park Service's interpretation. See, e. g., App. 69, 80; Lodging for Federal Respondents 14, 25. See also Standard Concession Contract, 65 Fed. Reg. 26052, 26063, 26065 (2000); Simplified Concession Contracts, id., at 44898, 44899-44900, 44910, 44912. Second, related contract solicitations are similarly widespread and recurring, involving numerous bidders. Third, after investigation, the relevant congressional committee found that the "way potential contractors view the disputes-resolving system influences how, whether, and at what prices they compete for government contract business." S. Rep. No. 95-1118, p. 4 (1978). Fourth, the CDA provides a prevailing contractor with prejudgment interest, and authorizes expedited procedures. 41 U.S. C. §§ 607(f), 608, 611. These are factors that make the inapplicability of the CDA more costly to successful bidders. See S. Rep. No. 95-1118, at 2-4; ante, at 813-814 (STEVENS, J., concurring in judgment). 40 These circumstances make clear that petitioner's members will likely suffer a concrete monetary harm, either now or in the foreseeable future. Such a showing here is sufficient to satisfy the Constitution's standing requirements. And the threatened injuries, present and future — monetary harm, injuries to a potential or actual contractual relationship, and injuries that arguably fall within the CDA's protective scope—are sufficient to satisfy "prudential" standing requirements as well. Federal Election Comm'n v. Akins, 524 U.S. 11, 19-20 (1998); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). Cf. Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 421-422 (1942). 41 Given this threat of immediate concrete harm (primarily in the form of increased bidding costs), this case is also ripe for judicial review. As JUSTICE STEVENS explains in Parts I and II of his opinion, the case now presents a legal issue — the applicability of the CDA to concession contracts — that is fit for judicial determination. That issue is a purely legal one, demanding for its resolution only use of ordinary judicial interpretive techniques. See ante, at 814-815 (opinion concurring in judgment). The relevant administrative action, i. e., the agency's definition of "concession contract" under the National Parks Omnibus Management Act of 1998, 16 U.S. C. §§ 5951-5966, has been "formalized," Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). It is embodied in an interpretive regulation issued after notice and public comment and pursuant to the Department of the Interior's formal delegation to the National Park Service of its own statutorily granted rulemaking authority, § 5965; ante, at 806-807. (Unlike the majority, I would apply to the regulation the legal label "interpretive rule," not "general statement of policy," ante, at 809 (internal quotation marks and alteration omitted), though I agree with the majority that, because the Park Service does not administer the CDA, see ibid., we owe its conclusion less deference.) The Park Service's interpretation is definite and conclusive, not tentative or likely to change; as the majority concedes, the Park Service's determination constitutes "final agency action" within the meaning of the Administrative Procedure Act. Ante, at 812 (internal quotation marks omitted). 42 The only open question concerns the nature of the harm that refusing judicial review at this time will cause petitioner's members. See Abbott Laboratories, supra, at 149. The fact that concessioners can raise the legal question at a later time, after a specific contractual dispute arises, see ante, at 812, militates against finding this case ripe. So too does a precedential concern: Will present review set a precedent that leads to premature challenges in other cases where agency interpretations may be less formal, less final, or less well suited to immediate judicial determination? See ante, at 811-812. 43 But the fact of immediate and particularized (and not totally reparable) injury during the bidding process offsets the first of these considerations. And the second is more than offset by a related congressional statute that specifies that prospective bidders for Government contracts can obtain immediate judicial relief from agency determinations that unlawfully threaten precisely this kind of harm. See 28 U.S. C. § 1491(b)(1) (allowing prospective bidder to object, for instance, to "solicitation by a Federal agency for bids . . . for a proposed contract" and permitting review of related allegation of "any . . . violation of statute or regulation in connection with a procurement or a proposed procurement"). See also R. Nash, S. Schooner, & K. O'Brien, The Government Contracts Reference Book 308, 423 (2d ed. 1998). This statute authorizes a potential bidder to complain of a proposed contractual term that, in the bidder's view, is unlawful, say, because it formally incorporates a regulation that embodies a specific, allegedly unlawful, remedial requirement. Cf. App. 25, ¶¶ 114-116 (excerpts from petitioner's complaint making just this claim); App. to Supplemental Brief for Petitioner 2a, ¶¶ 121-122 (same). That being so, i. e., the present injury in such a case being identical to the present injury at issue here, I can find no convincing prudential reason to withhold Administrative Procedure Act review. 44 In sum, given this congressional policy, the concrete nature of the injury asserted by petitioner, and the final nature of the agency action at issue, I see no good reason to postpone review. I would find the issue ripe for this Court's consideration. And I would affirm the decision of the Court of Appeals on the merits, primarily for the reasons set forth in its opinion as supplemented here by the Government

35 Like the majority, I believe that petitioner National Park Hospitality Association has standing here to pursue its legal claim, namely, that the dispute resolution procedures set forth in the Contract Disputes Act of 1978 (CDA), 41 U.S. C. 601 et seq., apply to national park concession contracts. But, unlike the majority, I believe that the question is ripe for our consideration. 36 I cannot agree with JUSTICE STEVENS that petitioner lacks Article III standing to bring suit on behalf of its members. See ante, at 815-816 and this page (opinion concurring in judgment). In my view, the National Park Service's definition of "concession contract" to exclude the CDA's protections ) causes petitioner and its members "injury in fact." ; see also 37 For one thing, many of petitioner's members are parties to, as well as potential bidders for, park concession contracts. Lodging for Federal Respondents 6 (listing 590 concession contracts in 131 parks). Those members will likely find that disputes arise under the contracts. And in resolving such disputes, the Park Service, following its regulation, will reject the concessioners' entitlement to the significant protections or financial advantages that the CDA provides. See 41 U.S. C. 605-612; ante, at 813-814 (STEVENS, J., concurring in judgment). In the circumstances present here, that kind of injury, though a future one, is concrete and likely to occur. 38 For another thing, the challenged Park Service interpretation causes a present injury. If the CDA does not apply to concession contract disagreements, as the Park Service regulation declares, then some of petitioner's members must plan now for higher contract implementation costs. Given the agency's regulation, bidders will likely be forced to pay more to obtain, or to retain, a concession contract than they believe the contract is worth. That is what petitioner argues. Supplemental Brief for Petitioner 4-6. See also App. to Supplemental Brief for Petitioner 3a-4a. Certain general allegations in the underlying complaints support this claim. See, e.g., App. 20-22, ¶¶ 35, 61-67; Amfac Resorts, L. L. C. Complaint in No. 1:00CV02838 (DC), pp. 4-5, ¶ 8 (available in Clerk of Court's case file); Cf. Amfac Resorts, L. L. And several uncontested circumstances indicate that such allegations are likely to prove true. 39 First, as the record makes clear, petitioner has a widespread membership, and many of its members regularly bid on contracts that, through cross-references to the Park Service regulation, embody the Park Service's interpretation. See, e. g., App. 69, 80; Lodging for Federal Respondents 14, 25. See also Standard Concession Contract, 26063, 26065 (2000); Simplified Concession Contracts, Second, related contract solicitations are similarly widespread and recurring, involving numerous bidders. Third, after investigation, the relevant congressional committee found that the "way potential contractors view the disputes-resolving system influences how, whether, and at what prices they compete for government contract business." S. Rep. No. 95-1118, p. 4 (1978). Fourth, the CDA provides a prevailing contractor with prejudgment interest, and authorizes expedited procedures. 41 U.S. C. 607(f), 608, 611. These are factors that make the inapplicability of the CDA more costly to successful bidders. See S. Rep. No. 95-1118, at 2-4; ante, at 813-814 (STEVENS, J., concurring in judgment). 40 These circumstances make clear that petitioner's members will likely suffer a concrete monetary harm, either now or in the foreseeable future. Such a showing here is sufficient to satisfy the Constitution's standing requirements. And the threatened injuries, present and future — monetary harm, injuries to a potential or actual contractual relationship, and injuries that arguably fall within the CDA's protective scope—are sufficient to satisfy "prudential" standing requirements as well. Federal Election ; Association of Data Processing Service Organizations, Cf. Columbia Broadcasting System, 41 Given this threat of immediate concrete harm (primarily in the form of increased bidding costs), this case is also ripe for judicial review. As JUSTICE STEVENS explains in Parts I and II of his opinion, the case now presents a legal issue — the applicability of the CDA to concession contracts — that is fit for judicial determination. That issue is a purely legal one, demanding for its resolution only use of ordinary judicial interpretive techniques. See ante, at 814-815 (opinion concurring in judgment). The relevant administrative action, i. e., the agency's definition of "concession contract" under the National Parks Omnibus Management Act of 1998, 16 U.S. C. 5951-5966, has been "formalized," Abbott It is embodied in an interpretive regulation issued after notice and public comment and pursuant to the Department of the Interior's formal delegation to the National Park Service of its own statutorily granted rulemaking authority, 5965; ante, at 806-807. (Unlike the majority, I would apply to the regulation the legal label "interpretive rule," not "general statement of policy," ante, at 809 (internal quotation marks and alteration omitted), though I agree with the majority that, because the Park Service does not administer the CDA, see ib we owe its conclusion less deference.) The Park Service's interpretation is definite and conclusive, not tentative or likely to change; as the majority concedes, the Park Service's determination constitutes "final agency action" within the meaning of the Administrative Procedure Act. Ante, at 812 (internal quotation marks omitted). 42 The only open question concerns the nature of the harm that refusing judicial review at this time will cause petitioner's members. See Abbott The fact that concessioners can raise the legal question at a later time, after a specific contractual dispute arises, see ante, at 812, militates against finding this case ripe. So too does a precedential concern: Will present review set a precedent that leads to premature challenges in other cases where agency interpretations may be less formal, less final, or less well suited to immediate judicial determination? See ante, at 811-812. 43 But the fact of immediate and particularized (and not totally reparable) injury during the bidding process offsets the first of these considerations. And the second is more than offset by a related congressional statute that specifies that prospective bidders for Government contracts can obtain immediate judicial relief from agency determinations that unlawfully threaten precisely this kind of harm. See 28 U.S. C. 1491(b)(1) (allowing prospective bidder to object, for instance, to "solicitation by a Federal agency for bids for a proposed contract" and permitting review of related allegation of "any violation of statute or regulation in connection with a procurement or a proposed procurement"). See also R. Nash, S. Schooner, & K. O'Brien, The Government Contracts Reference Book 308, 423 This statute authorizes a potential bidder to complain of a proposed contractual term that, in the bidder's view, is unlawful, say, because it formally incorporates a regulation that embodies a specific, allegedly unlawful, remedial requirement. Cf. App. 25, ¶¶ 114-116 (excerpts from petitioner's complaint making just this claim); App. to Supplemental Brief for Petitioner 2a, ¶¶ 121-122 (same). That being so, i. e., the present injury in such a case being identical to the present injury at issue here, I can find no convincing prudential reason to withhold Administrative Procedure Act review. 44 In sum, given this congressional policy, the concrete nature of the injury asserted by petitioner, and the final nature of the agency action at issue, I see no good reason to postpone review. I would find the issue ripe for this Court's consideration. And I would affirm the decision of the Court of Appeals on the merits, primarily for the reasons set forth in its opinion as supplemented here by the Government

Justice Kennedy

majority

Gonzales v. Carhart

2007-04-18

https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/

https://www.courtlistener.com/api/rest/v3/clusters/145744/

2006-031

These cases require us to consider the validity of the Partial-Birth Abortion Ban Act of 2003(Act), 18 U.S.C. § 1531 (2000 ed., Supp. IV), a federal statute regulating abortion procedures. In recitations preceding its operative provisions the Act refers to the Court's opinion in Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000), which also addressed the subject of abortion procedures used in the later stages of pregnancy. Compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it. In No. 05-380 (Carhart) respondents are LeRoy Carhart, William G. Fitzhugh, William H. Knorr, and Jill L. Vibhakar, doctors who perform second-trimester abortions. These doctors filed their complaint against the Attorney General of the United States in the United States District Court for the District of Nebraska. They challenged the constitutionality of the Act and sought a permanent injunction against its enforcement. Carhart v. Ashcroft, 331 F. Supp. 2d 805 (2004). In 2004, after a 2-week trial, the District Court granted a permanent injunction that prohibited the Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. Id., at 1048. The Court of Appeals for the Eighth Circuit affirmed. 413 F.3d 791 (2005). We granted certiorari. 546 U.S. 1169, 126 S. Ct. 2901, 165 L. Ed. 2d 916 (2006). In No. 05-1382 (Planned Parenthood) respondents are Planned Parenthood Federation of America, Inc., Planned Parenthood Golden Gate, and the City and County of San Francisco. The Planned Parenthood entities sought to enjoin enforcement of the Act in a suit filed in the United States District Court for the Northern District of California. Planned *1620 Parenthood Federation of Am. v. Ashcroft, 320 F. Supp. 2d 957 (2004). The City and County of San Francisco intervened as a plaintiff. In 2004, the District Court held a trial spanning a period just short of three weeks, and it, too, enjoined the Attorney General from enforcing the Act. Id., at 1035. The Court of Appeals for the Ninth Circuit affirmed. 435 F.3d 1163 (2006). We granted certiorari. 547 U.S. ___, 126 S. Ct. 2901, 165 L. Ed. 2d 916 (2006). I A The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail. Three United States District Courts heard extensive evidence describing the procedures. In addition to the two courts involved in the instant cases the District Court for the Southern District of New York also considered the constitutionality of the Act. Nat. Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436 (2004). It found the Act unconstitutional, id., at 493, and the Court of Appeals for the Second Circuit affirmed, Nat. Abortion Federation v. Gonzales, 437 F.3d 278 (2006). The three District Courts relied on similar medical evidence; indeed, much of the evidence submitted to the Carhart court previously had been submitted to the other two courts. 331 F.Supp.2d, at 809-810. We refer to the District Courts' exhaustive opinions in our own discussion of abortion procedures. Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child's development. Between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy, which is to say in the first trimester. Planned Parenthood, 320 F.Supp.2d, at 960, and n. 4; App. in No. 05-1382, pp. 45-48. The most common first-trimester abortion method is vacuum aspiration (otherwise known as suction curettage) in which the physician vacuums out the embryonic tissue. Early in this trimester an alternative is to use medication, such as mifepristone (commonly known as RU-486), to terminate the pregnancy. Nat. Abortion Federation, supra, at 464, n. 20. The Act does not regulate these procedures. Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as "dilation and evacuation" or "D & E" is the usual abortion method in this trimester. Planned Parenthood, 320 F.Supp.2d, at 960-961. Although individual techniques for performing D & E differ, the general steps are the same. A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion Federation, supra, at 465; App. in No. 05-1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., Carhart, 331 F.Supp.2d, at 852, 856, 859, 862-865, 868, 870, 873-874, 876-877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix *1621 for two days, while others use dilators for a day or less. Nat. Abortion Federation, supra, at 464-465; Planned Parenthood, supra, at 961. After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e.g., Nat. Abortion Federation, supra, at 465; Planned Parenthood, supra, at 962. Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. Carhart, supra, at 907-912; Nat. Abortion Federation, supra, at 474-475. The abortion procedure that was the impetus for the numerous bans on "partial-birth abortion," including the Act, is a variation of this standard D & E. See M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), 1 Appellant's App. in No. 04-3379(CA8), p. 109 (hereinafter Dilation and Extraction). The medical community has not reached unanimity on the appropriate name for this D & E variation. It has been referred to as "intact D & E," "dilation and extraction" (D & X), and "intact D & X." Nat. Abortion Federation, supra, at 440, n. 2; see also F. Cunningham et al., Williams Obstetrics 243 (22d ed.2005) (identifying the procedure as D & X); Danforth's Obstetrics and Gynecology 567 (J. Scott, R. Gibbs, B. Karlan, & A. Haney eds. 9th ed.2003) (identifying the procedure as intact D & X); M. Paul, E. Lichtenberg, L. Borgatta, D. Grimes, & P. Stubblefield, A Clinician's Guide to Medical and Surgical Abortion 136 (1999) (identifying the procedure as intact D & E). For discussion purposes this D & E variation will be referred to as intact D & E. The main difference between the two procedures is that in intact D & E a doctor extracts the fetus intact or largely intact with only a few passes. There are no comprehensive statistics indicating what percentage of all D & Es are performed in this manner. Intact D & E, like regular D & E, begins with dilation of the cervix. Sufficient dilation is essential for the procedure. To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called "serial" dilation. Carhart, supra, at 856, 870, 873; Planned Parenthood, supra, at 965. Doctors who attempt at the outset to perform intact D & E may dilate for two full days or use up to 25 osmotic dilators. See, e.g., Dilation and Extraction 110; Carhart, supra, at 865, 868, 876, 886. *1622 In an intact D & E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified: "If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don't close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible." App. in No. 05-1382, at 74. Rotating the fetus as it is being pulled decreases the odds of dismemberment. Carhart, supra, at 868-869; App. in No. 05-380, pp. 40-41; 5 Appellant's App. in No. 04-3379(CA8), p. 1469. A doctor also "may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level—sometimes using both his hand and a forceps—to exert traction to retrieve the fetus intact until the head is lodged in the [cervix]." Carhart, 331 F.Supp.2d, at 886-887. Intact D & E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110-111. In the usual intact D & E the fetus' head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e.g., ibid.; App. in No. 05-380, at 577; App. in No. 05-1382, at 74, 282. Haskell explained the next step as follows: "`At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and "hooks" the shoulders of the fetus with the index and ring fingers (palm down). "`While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger. "`[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. "`The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.'" H.R.Rep. No. 108-58, p. 3 (2003). This is an abortion doctor's clinical description. Here is another description from a nurse who witnessed the same method performed on a 26½-week fetus and who testified before the Senate Judiciary Committee: "`Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms—everything but the head. The doctor kept the head right inside the uterus. . . . "`The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. "`The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. . . . "`He cut the umbilical cord and delivered the placenta. He threw the baby *1623 in a pan, along with the placenta and the instruments he had just used.'" Ibid. Dr. Haskell's approach is not the only method of killing the fetus once its head lodges in the cervix, and "the process has evolved" since his presentation. Planned Parenthood, 320 F.Supp.2d, at 965. Another doctor, for example, squeezes the skull after it has been pierced "so that enough brain tissue exudes to allow the head to pass through." App. in No. 05-380, at 41; see also Carhart, supra, at 866-867, 874. Still other physicians reach into the cervix with their forceps and crush the fetus' skull. Carhart, supra, at 858, 881. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it. Id., at 864, 878; see also Planned Parenthood, supra, at 965. Some doctors performing an intact D & E attempt to remove the fetus without collapsing the skull. See Carhart, supra, at 866, 869. Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because "the objective of [his] procedure is to perform an abortion," not a birth. App. in No. 05-1382, at 408-409. The doctor thus answered in the affirmative when asked whether he would "hold the fetus' head on the internal side of the [cervix] in order to collapse the skull" and kill the fetus before it is born. Id., at 409; see also Carhart, supra, at 862, 878. Another doctor testified he crushes a fetus' skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has "some viability to it, some movement of limbs," according to this doctor, "[is] always a difficult situation." App. in No. 05-380, at 94; see Carhart, supra, at 858. D & E and intact D & E are not the only second-trimester abortion methods. Doctors also may abort a fetus through medical induction. The doctor medicates the woman to induce labor, and contractions occur to deliver the fetus. Induction, which unlike D & E should occur in a hospital, can last as little as 6 hours but can take longer than 48. It accounts for about five percent of second-trimester abortions before 20 weeks of gestation and 15 percent of those after 20 weeks. Doctors turn to two other methods of second-trimester abortion, hysterotomy and hysterectomy, only in emergency situations because they carry increased risk of complications. In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about .07% of second-trimester abortions. Nat. Abortion Federation, 330 F.Supp.2d, at 467; Planned Parenthood, supra, at 962-963. B After Dr. Haskell's procedure received public attention, with ensuing and increasing public concern, bans on "`partial birth abortion'" proliferated. By the time of the Stenberg decision, about 30 States had enacted bans designed to prohibit the procedure. 530 U.S., at 995-996, and nn. 12-13, 120 S. Ct. 2597 (THOMAS, J., dissenting); see also H.R.Rep. No. 108-58, at 4-5. In 1996, Congress also acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in 1997, but President Clinton again vetoed it. In 2003, after this Court's decision in Stenberg, Congress passed the Act at issue here. H.R.Rep. No. 108-58, at 12-14. On November 5, 2003, President *1624 Bush signed the Act into law. It was to take effect the following day. 18 U.S.C. § 1531(a) (2000 ed., Supp. IV). The Act responded to Stenberg in two ways. First, Congress made factual findings. Congress determined that this Court in Stenberg "was required to accept the very questionable findings issued by the district court judge," § 2(7), 117 Stat. 1202, notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 768, ¶ (7) (Congressional Findings), but that Congress was "not bound to accept the same factual findings," ibid., ¶ (8). Congress found, among other things, that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." Id., at 767, ¶ (1). Second, and more relevant here, the Act's language differs from that of the Nebraska statute struck down in Stenberg. See 530 U.S., at 921-922, 120 S. Ct. 2597 (quoting Neb.Rev.Stat. Ann. §§ 28-328(1), 28-326(9) (Supp.1999)). The operative provisions of the Act provide in relevant part: "(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. "(b) As used in this section— "(1) the term `partial-birth abortion' means an abortion in which the person performing the abortion— "(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and "(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and "(2) the term `physician' means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section. . . . . . "(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. "(2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning *1625 of the trial for not more than 30 days to permit such a hearing to take place. "(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section." 18 U.S.C. § 1531 (2000 ed., Supp. IV). The Act also includes a provision authorizing civil actions that is not of relevance here. § 1531(c). C The District Court in Carhart concluded the Act was unconstitutional for two reasons. First, it determined the Act was unconstitutional because it lacked an exception allowing the procedure where necessary for the health of the mother. 331 F.Supp.2d, at 1004-1030. Second, the District Court found the Act deficient because it covered not merely intact D & E but also certain other D & Es. Id., at 1030-1037. The Court of Appeals for the Eighth Circuit addressed only the lack of a health exception. 413 F.3d, at 803-804. The court began its analysis with what it saw as the appropriate question—"whether `substantial medical authority' supports the medical necessity of the banned procedure." Id., at 796 (quoting Stenberg, 530 U.S., at 938, 120 S. Ct. 2597). This was the proper framework, according to the Court of Appeals, because "when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health exception." 413 F.3d, at 796. The court rejected the Attorney General's attempt to demonstrate changed evidentiary circumstances since Stenberg and considered itself bound by Stenberg's conclusion that a health exception was required. 413 F.3d, at 803 (explaining "[t]he record in [the] case and the record in Stenberg [were] similar in all significant respects"). It invalidated the Act. Ibid. D The District Court in Planned Parenthood concluded the Act was unconstitutional "because it (1) pose[d] an undue burden on a woman's ability to choose a second trimester abortion; (2)[was] unconstitutionally vague; and (3) require[d] a health exception as set forth by . . . Stenberg." 320 F.Supp.2d, at 1034-1035. The Court of Appeals for the Ninth Circuit agreed. Like the Court of Appeals for the Eighth Circuit, it concluded the absence of a health exception rendered the Act unconstitutional. The court interpreted Stenberg to require a health exception unless "there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women." 435 F.3d, at 1173. Even after applying a deferential standard of review to Congress' factual findings, the Court of Appeals determined "substantial disagreement exists in the medical community regarding whether" the procedures prohibited by the Act are ever necessary to preserve a woman's health. Id., at 1175-1176. The Court of Appeals concluded further that the Act placed an undue burden on a woman's ability to obtain a second-trimester abortion. The court found the textual differences between the Act and the Nebraska statute struck down in Stenberg insufficient to distinguish D & E and intact D & E. 435 F.3d, at 1178-1180. As a result, according to the Court of Appeals, the Act imposed an undue burden because it prohibited D & E. Id., at 1180-1181. Finally, the Court of Appeals found the Act void for vagueness. Id., at 1181. Abortion doctors testified they were uncertain *1626 which procedures the Act made criminal. The court thus concluded the Act did not offer physicians clear warning of its regulatory reach. Id., at 1181-1184. Resting on its understanding of the remedial framework established by this Court in Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328-330, 126 S. Ct. 961, 163 L. Ed. 2d 812 (2006), the Court of Appeals held the Act was unconstitutional on its face and should be permanently enjoined. 435 F.3d, at 1184-1191. II The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), did not find support from all those who join the instant opinion. See id., at 979-1002, 112 S. Ct. 2791 (SCALIA, J., joined by THOMAS, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one's views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals. Casey involved a challenge to Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The opinion contains this summary: "It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each." 505 U.S., at 846, 112 S. Ct. 2791 (opinion of the Court). Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child. To implement its holding, Casey rejected both Roe's rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. 505 U.S., at 875-876, 878, 112 S. Ct. 2791 (plurality opinion). On this point Casey overruled the holdings in two cases because they undervalued the State's interest in potential life. See id., at 881-883, 112 S. Ct. 2791 (joint opinion) (overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779 (1986) and Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983)). We assume the following principles for the purposes of this opinion. Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." 505 U.S., at 879, 112 S. Ct. 2791 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation's "purpose or effect is to place a substantial obstacle in the path of a woman *1627 seeking an abortion before the fetus attains viability." Id., at 878, 112 S. Ct. 2791. On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." Id., at 877, 112 S. Ct. 2791. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar. III We begin with a determination of the Act's operation and effect. A straightforward reading of the Act's text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D & E procedure. Respondents agree the Act encompasses intact D & E, but they contend its additional reach is both unclear and excessive. Respondents assert that, at the least, the Act is void for vagueness because its scope is indefinite. In the alternative, respondents argue the Act's text proscribes all D & Es. Because D & E is the most common second-trimester abortion method, respondents suggest the Act imposes an undue burden. In this litigation the Attorney General does not dispute that the Act would impose an undue burden if it covered standard D & E. We conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face. A The Act punishes "knowingly perform[ing]" a "partial-birth abortion." § 1531(a) (2000 ed., Supp. IV). It defines the unlawful abortion in explicit terms. § 1531(b)(1). First, the person performing the abortion must "vaginally delive[r] a living fetus." § 1531(b)(1)(A). The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. See, e.g., Planned Parenthood, 320 F.Supp.2d, at 971-972. We do not understand this point to be contested by the parties. Second, the Act's definition of partial-birth abortion requires the fetus to be delivered "until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother." § 1531(b)(1)(A) (2000 ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these "anatomical `landmarks'"—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply. Brief for Petitioner in No. 05-380, p. 46. Third, to fall within the Act, a doctor must perform an "overt act, other than completion of delivery, that kills the partially delivered living fetus." § 1531(b)(1)(B) (2000 ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus' death must be separate from delivery. And the overt act must *1628 occur after the delivery to an anatomical landmark. This is because the Act proscribes killing "the partially delivered" fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark. Ibid. Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have "deliberately and intentionally" delivered the fetus to one of the Act's anatomical landmarks. § 1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered "for the purpose of performing an overt act that the [doctor] knows will kill [it]." Ibid. If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind. See generally 1 W. LaFave, Substantive Criminal Law § 5.1 (2d ed.2003) (hereinafter LaFave); 1 C. Torcia, Wharton's Criminal Law § 27 (15th ed.1993). B Respondents contend the language described above is indeterminate, and they thus argue the Act is unconstitutionally vague on its face. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); Posters `N' Things, Ltd. v. United States, 511 U.S. 513, 525, 114 S. Ct. 1747, 128 L. Ed. 2d 539 (1994). The Act satisfies both requirements. The Act provides doctors "of ordinary intelligence a reasonable opportunity to know what is prohibited." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Indeed, it sets forth "relatively clear guidelines as to prohibited conduct" and provides "objective criteria" to evaluate whether a doctor has performed a prohibited procedure. Posters `N' Things, supra, at 525-526, 114 S. Ct. 1747. Unlike the statutory language in Stenberg that prohibited the delivery of a "`substantial portion'" of the fetus— where a doctor might question how much of the fetus is a substantial portion—the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. Stenberg, 530 U.S., at 922, 120 S. Ct. 2597 (quoting Neb. Rev.Stat. Ann. § 28-326(9) (Supp.1999)). Doctors performing D & E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability. This conclusion is buttressed by the intent that must be proved to impose liability. The Court has made clear that scienter requirements alleviate vagueness concerns. Posters `N' Things, supra, at 526, 114 S. Ct. 1747; see also Colautti v. Franklin, 439 U.S. 379, 395, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979) ("This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea"). The Act requires the doctor deliberately to have delivered the fetus to an anatomical landmark. § 1531(b)(1)(A) (2000 ed., Supp. IV). Because a doctor performing a D & E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as "a trap for those who act in good faith." Colautti, supra, at 395, 99 *1629 S.Ct. 675 (internal quotation marks omitted). Respondents likewise have failed to show that the Act should be invalidated on its face because it encourages arbitrary or discriminatory enforcement. Kolender, supra, at 357, 103 S. Ct. 1855. Just as the Act's anatomical landmarks provide doctors with objective standards, they also "establish minimal guidelines to govern law enforcement." Smith v. Goguen, 415 U.S. 566, 574, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974). The scienter requirements narrow the scope of the Act's prohibition and limit prosecutorial discretion. It cannot be said that the Act "vests virtually complete discretion in the hands of [law enforcement] to determine whether the [doctor] has satisfied [its provisions]." Kolender, supra, at 358, 103 S. Ct. 1855 (invalidating a statute regulating loitering). Respondents' arguments concerning arbitrary enforcement, furthermore, are somewhat speculative. This is a preenforcement challenge, where "no evidence has been, or could be, introduced to indicate whether the [Act] has been enforced in a discriminatory manner or with the aim of inhibiting [constitutionally protected conduct]." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). The Act is not vague. C We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. A review of the statutory text discloses the limits of its reach. The Act prohibits intact D & E; and, notwithstanding respondents' arguments, it does not prohibit the D & E procedure in which the fetus is removed in parts. 1 The Act prohibits a doctor from intentionally performing an intact D & E. The dual prohibitions of the Act, both of which are necessary for criminal liability, correspond with the steps generally undertaken during this type of procedure. First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation. See 18 U.S.C. § 1531(b)(1)(A) (2000 ed., Supp. IV). Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps. This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery. See § 1531(b)(1)(B). The Act's intent requirements, however, limit its reach to those physicians who carry out the intact D & E after intending to undertake both steps at the outset. The Act excludes most D & Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability. A doctor performing a standard D & E procedure can often "tak[e] about 10-15 `passes' through the uterus to remove the entire fetus." Planned Parenthood, 320 F.Supp.2d, at 962. Removing the fetus in this manner does not violate the Act because the doctor will not have delivered the living fetus to one of the anatomical landmarks or committed an additional overt act that kills the fetus after partial delivery. § 1531(b)(1) (2000 ed., Supp. IV). A comparison of the Act with the Nebraska statute struck down in Stenberg confirms this point. The statute in Stenberg prohibited "`deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such *1630 procedure knows will kill the unborn child and does kill the unborn child.'" 530 U.S., at 922, 120 S. Ct. 2597 (quoting Neb.Rev. Stat. Ann. § 28-326(9) (Supp.1999)). The Court concluded that this statute encompassed D & E because "D & E will often involve a physician pulling a `substantial portion' of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus." 530 U.S., at 939, 120 S. Ct. 2597. The Court also rejected the limiting interpretation urged by Nebraska's Attorney General that the statute's reference to a "procedure" that "`kill[s] the unborn child'" was to a distinct procedure, not to the abortion procedure as a whole. Id., at 943, 120 S. Ct. 2597. Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in Stenberg. It adopts the phrase "delivers a living fetus," § 1531(b)(1)(A) (2000 ed., Supp. IV), instead of "`delivering . . . a living unborn child, or a substantial portion thereof,'" 530 U.S., at 938, 120 S. Ct. 2597 (quoting Neb.Rev.Stat. Ann. § 28-326(9) (Supp.1999)). The Act's language, unlike the statute in Stenberg, expresses the usual meaning of "deliver" when used in connection with "fetus," namely, extraction of an entire fetus rather than removal of fetal pieces. See Stedman's Medical Dictionary 470 (27th ed.2000) (defining deliver as "[t]o assist a woman in childbirth" and "[t]o extract from an enclosed place, as the fetus from the womb, an object or foreign body"); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni, The HarperCollins Illustrated Medical Dictionary 160 (4th ed.2001); Merriam Webster's Collegiate Dictionary 306 (10th ed.1997). The Act thus displaces the interpretation of "delivering" dictated by the Nebraska statute's reference to a "substantial portion" of the fetus. Stenberg, supra, at 944, 120 S. Ct. 2597 (indicating that the Nebraska "statute itself specifies that it applies both to delivering `an intact unborn child' or `a substantial portion thereof'"). In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result. See, e.g., 2A N. Singer, Sutherland on Statutes and Statutory Construction § 47:28 (rev. 6th ed.2000). Here, unlike in Stenberg, the language does not require a departure from the ordinary meaning. D & E does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix. The identification of specific anatomical landmarks to which the fetus must be partially delivered also differentiates the Act from the statute at issue in Stenberg. § 1531(b)(1)(A) (2000 ed., Supp. IV). The Court in Stenberg interpreted "`substantial portion'" of the fetus to include an arm or a leg. 530 U.S., at 939, 120 S. Ct. 2597. The Act's anatomical landmarks, by contrast, clarify that the removal of a small portion of the fetus is not prohibited. The landmarks also require the fetus to be delivered so that it is partially "outside the body of the mother." § 1531(b)(1)(A). To come within the ambit of the Nebraska statute, on the other hand, a substantial portion of the fetus only had to be delivered into the vagina; no part of the fetus had to be outside the body of the mother before a doctor could face criminal sanctions. Id., at 938-939, 120 S. Ct. 2597. By adding an overt-act requirement Congress sought further to meet the Court's objections to the state statute considered in Stenberg. Compare 18 U.S.C. § 1531(b)(1) (2000 ed., Supp. IV) with Neb. Rev.Stat. Ann. § 28-326(9) (Supp.1999). The Act makes the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced) by differentiating between the overall partial-birth *1631 abortion and the distinct overt act that kills the fetus. See Stenberg, 530 U.S., at 943-944, 120 S. Ct. 2597. The fatal overt act must occur after delivery to an anatomical landmark, and it must be something "other than [the] completion of delivery." § 1531(b)(1)(B). This distinction matters because, unlike intact D & E, standard D & E does not involve a delivery followed by a fatal act. The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D & E procedure. "`[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'" Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988) (quoting Hooper v. California, 155 U.S. 648, 657, 15 S. Ct. 207, 39 L. Ed. 297 (1895)). It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic "`canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.'" Stenberg, supra, at 977, 120 S. Ct. 2597 (KENNEDY, J., dissenting) (quoting Thornburgh, 476 U.S., at 829, 106 S. Ct. 2169 (O'Connor, J., dissenting)). Casey put this novel statutory approach to rest. Stenberg, supra, at 977, 120 S. Ct. 2597 (KENNEDY, J., dissenting). Stenberg need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not "genuinely susceptible to two constructions." Almendarez-Torres v. United States, 523 U.S. 224, 238, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998); see also Clark v. Martinez, 543 U.S. 371, 385, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005). In Stenberg the Court found the statute covered D & E. 530 U.S., at 938-945, 120 S. Ct. 2597. Here, by contrast, interpreting the Act so that it does not prohibit standard D & E is the most reasonable reading and understanding of its terms. 2 Contrary arguments by the respondents are unavailing. Respondents look to situations that might arise during D & E, situations not examined in Stenberg. They contend—relying on the testimony of numerous abortion doctors—that D & E may result in the delivery of a living fetus beyond the Act's anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion procedure. It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D & E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. Brief for Respondent Planned Parenthood et al. in No. 05-1382, p. 38. This reasoning, however, does not take account of the Act's intent requirements, which preclude liability from attaching to an accidental intact D & E. If a doctor's intent at the outset is to perform a D & E in which the fetus would not be delivered to either of the Act's anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present. 18 U.S.C. § 1531(b)(1)(A) (2000 ed., Supp. IV). When a doctor in that situation completes an abortion by performing an intact *1632 D & E, the doctor does not violate the Act. It is true that intent to cause a result may sometimes be inferred if a person "knows that that result is practically certain to follow from his conduct." 1 LaFave § 5.2(a), at 341. Yet abortion doctors intending at the outset to perform a standard D & E procedure will not know that a prohibited abortion "is practically certain to follow from" their conduct. Ibid. A fetus is only delivered largely intact in a small fraction of the overall number of D & E abortions. Planned Parenthood, 320 F.Supp.2d, at 965. The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance. Doctors, for example, may remove the fetus in a manner that will increase the chances of an intact delivery. See, e.g., App. in No. 05-1382, at 74, 452. And intact D & E is usually described as involving some manner of serial dilation. See, e.g., Dilation and Extraction 110. Doctors who do not seek to obtain this serial dilation perform an intact D & E on far fewer occasions. See, e.g., Carhart, 331 F.Supp.2d, at 857-858 ("In order for intact removal to occur on a regular basis, Dr. Fitzhugh would have to dilate his patients with a second round of laminaria"). This evidence belies any claim that a standard D & E cannot be performed without intending or foreseeing an intact D & E. Many doctors who testified on behalf of respondents, and who objected to the Act, do not perform an intact D & E by accident. On the contrary, they begin every D & E abortion with the objective of removing the fetus as intact as possible. See, e.g., id., at 869 ("Since Dr. Chasen believes that the intact D & E is safer than the dismemberment D & E, Dr. Chasen's goal is to perform an intact D & E every time"); see also id., at 873, 886. This does not prove, as respondents suggest, that every D & E might violate the Act and that the Act therefore imposes an undue burden. It demonstrates only that those doctors who intend to perform a D & E that would involve delivery of a living fetus to one of the Act's anatomical landmarks must adjust their conduct to the law by not attempting to deliver the fetus to either of those points. Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D & E abortions. The Act, then, cannot be held invalid on its face on these grounds. IV Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Casey, 505 U.S., at 878, 112 S. Ct. 2791 (plurality opinion). The abortions affected by the Act's regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity. A The Act's purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before *1633 completion of the birth process. Congress stated as follows: "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." Congressional Findings (14)(N), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769. The Act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain: "Partial-birth abortion . . . confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life." Congressional Findings (14)(J), ibid. There can be no doubt the government "has an interest in protecting the integrity and ethics of the medical profession." Washington v. Glucksberg, 521 U.S. 702, 731, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997); see also Barsky v. Board of Regents of Univ. of N. Y., 347 U.S. 442, 451, 74 S. Ct. 650, 98 L. Ed. 829 (1954) (indicating the State has "legitimate concern for maintaining high standards of professional conduct" in the practice of medicine). Under our precedents it is clear the State has a significant role to play in regulating the medical profession. Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court's precedents after Roe had "undervalue[d] the State's interest in potential life." 505 U.S., at 873, 112 S. Ct. 2791 (plurality opinion); see also id., at 871, 112 S. Ct. 2791. The plurality opinion indicated "[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." Id., at 874, 112 S. Ct. 2791. This was not an idle assertion. The three premises of Casey must coexist. See id., at 846, 112 S. Ct. 2791 (opinion of the Court). The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D & E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," Congressional Findings (14)(L), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with "draw[ing] a *1634 bright line that clearly distinguishes abortion and infanticide." Congressional Findings (14)(G), ibid. The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's "fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia." 521 U.S., at 732-735, and n. 23, 117 S. Ct. 2258. Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852-853, 112 S. Ct. 2791 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of esteem can follow. See ibid. In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F.Supp.2d, at 466, n. 22 ("Most of [the plaintiffs'] experts acknowledged that they do not describe to their patients what [the D & E and intact D & E] procedures entail in clear and precise terms"); see also id., at 479. It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873, 112 S. Ct. 2791 (plurality opinion) ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning"). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. It is objected that the standard D & E is in some respects as brutal, if not more, than the intact D & E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D & E because the former *1635 occurs when the fetus is partially outside the mother to the point of one of the Act's anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D & E, "undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world." Congressional Findings (14)(K), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769. There would be a flaw in this Court's logic, and an irony in its jurisprudence, were we first to conclude a ban on both D & E and intact D & E was overbroad and then to say it is irrational to ban only intact D & E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was "to place a substantial obstacle in the path of a woman seeking an abortion." 505 U.S., at 878, 112 S. Ct. 2791 (plurality opinion). B The Act's furtherance of legitimate government interests bears upon, but does not resolve, the next question: whether the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where "`necessary, in appropriate medical judgment, for [the] preservation of the . . . health of the mother.'" Ayotte, 546 U.S., at 327-328, 126 S. Ct. 961 (quoting Casey, supra, at 879, 112 S. Ct. 2791 (plurality opinion)). The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it "subject[ed] [women] to significant health risks." Ayotte, supra, at 328, 126 S. Ct. 961; see also Casey, supra, at 880, 112 S. Ct. 2791 (opinion of the Court). In Ayotte the parties agreed a health exception to the challenged parental-involvement statute was necessary "to avert serious and often irreversible damage to [a pregnant minor's] health." 546 U.S., at 328, 126 S. Ct. 961. Here, by contrast, whether the Act creates significant health risks for women has been a contested factual question. The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their position. Respondents presented evidence that intact D & E may be the safest method of abortion, for reasons similar to those adduced in Stenberg. See 530 U.S., at 932, 120 S. Ct. 2597. Abortion doctors testified, for example, that intact D & E decreases the risk of cervical laceration or uterine perforation because it requires fewer passes into the uterus with surgical instruments and does not require the removal of bony fragments of the dismembered fetus, fragments that may be sharp. Respondents also presented evidence that intact D & E was safer both because it reduces the risks that fetal parts will remain in the uterus and because it takes less time to complete. Respondents, in addition, proffered evidence that intact D & E was safer for women with certain medical conditions or women with fetuses that had certain anomalies. See, e.g., Carhart, 331 F.Supp.2d, at 923-929; Nat. Abortion Federation, supra, at 470-474; Planned Parenthood, 320 F.Supp.2d, at 982-983. These contentions were contradicted by other doctors who testified in the District Courts and before Congress. They concluded that the alleged health advantages were based on speculation without scientific studies to support them. They considered D & E always to be a safe alternative. See, e.g., Carhart, supra, at 930-940; Nat. Abortion Federation, 330 F.Supp.2d, at 470-474; Planned Parenthood, 320 F.Supp.2d, at 983. *1636 There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women. See, e.g., id., at 1033 ("[T]here continues to be a division of opinion among highly qualified experts regarding the necessity or safety of intact D & E"); see also Nat. Abortion Federation, supra, at 482. The three District Courts that considered the Act's constitutionality appeared to be in some disagreement on this central factual question. The District Court for the District of Nebraska concluded "the banned procedure is, sometimes, the safest abortion procedure to preserve the health of women." Carhart, supra, at 1017, 120 S. Ct. 2597. The District Court for the Northern District of California reached a similar conclusion. Planned Parenthood, supra, at 1002, 112 S. Ct. 2791 (finding intact D & E was "under certain circumstances . . . significantly safer than D & E by disarticulation"). The District Court for the Southern District of New York was more skeptical of the purported health benefits of intact D & E. It found the Attorney General's "expert witnesses reasonably and effectively refuted [the plaintiffs'] proffered bases for the opinion that [intact D & E] has safety advantages over other second-trimester abortion procedures." Nat. Abortion Federation, 330 F.Supp.2d, at 479. In addition it did "not believe that many of [the plaintiffs'] purported reasons for why [intact D & E] is medically necessary [were] credible; rather [it found them to be] theoretical or false." Id., at 480. The court nonetheless invalidated the Act because it determined "a significant body of medical opinion . . . holds that D & E has safety advantages over induction and that [intact D & E] has some safety advantages (however hypothetical and unsubstantiated by scientific evidence) over D & E for some women in some circumstances." Ibid. The question becomes whether the Act can stand when this medical uncertainty persists. The Court's precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty. See Kansas v. Hendricks, 521 U.S. 346, 360, n. 3, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); Jones v. United States, 463 U.S. 354, 364-365, n. 13, 370, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983); Lambert v. Yellowley, 272 U.S. 581, 597, 47 S. Ct. 210, 71 L. Ed. 422 (1926); Collins v. Texas, 223 U.S. 288, 297-298, 32 S. Ct. 286, 56 L. Ed. 439 (1912); Jacobson v. Massachusetts, 197 U.S. 11, 30-31, 25 S. Ct. 358, 49 L. Ed. 643 (1905); see also Stenberg, supra, at 969-972, 120 S. Ct. 2597 (KENNEDY, J., dissenting); Marshall v. United States, 414 U.S. 417, 427, 94 S. Ct. 700, 38 L. Ed. 2d 618 (1974) ("When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad"). This traditional rule is consistent with Casey, which confirms the State's interest in promoting respect for human life at all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. In Casey the controlling opinion held an informed-consent requirement in the abortion context was "no different from a requirement that a doctor give certain specific information about any medical procedure." 505 U.S., at 884, 112 S. Ct. 2791 (joint opinion). The opinion stated "the doctor-patient relation here is entitled to the same solicitude it receives in other contexts." Ibid.; see also Webster v. Reproductive Health *1637 Services, 492 U.S. 490, 518-519, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989) (plurality opinion) (criticizing Roe's trimester framework because, inter alia, it "left this Court to serve as the country's ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States" (internal quotation marks omitted)); Mazurek v. Armstrong, 520 U.S. 968, 973, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (per curiam) (upholding a restriction on the performance of abortions to licensed physicians despite the respondents' contention "all health evidence contradicts the claim that there is any health basis for the law" (internal quotation marks omitted)). Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. See Hendricks, supra, at 360, n. 3, 117 S. Ct. 2072. The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden. The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D & E. One District Court found D & E to have extremely low rates of medical complications. Planned Parenthood, supra, at 1000, 112 S. Ct. 2791. Another indicated D & E was "generally the safest method of abortion during the second trimester." Carhart, 331 F.Supp.2d, at 1031; see also Nat. Abortion Federation, supra, at 467-468 (explaining that "[e]xperts testifying for both sides" agreed D & E was safe). In addition the Act's prohibition only applies to the delivery of "a living fetus." 18 U.S.C. § 1531(b)(1)(A) (2000 ed., Supp. IV). If the intact D & E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure. The instant cases, then, are different from Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 77-79, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), in which the Court invalidated a ban on saline amniocentesis, the then-dominant second-trimester abortion method. The Court found the ban in Danforth to be "an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks." Id., at 79, 96 S. Ct. 2831. Here the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right. In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05-380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See Crowell v. Benson, 285 U.S. 22, 60, 52 S. Ct. 285, 76 L. Ed. 598 (1932) ("In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function"). As respondents have noted, and the District Courts recognized, some recitations in *1638 the Act are factually incorrect. See Nat. Abortion Federation, 330 F.Supp.2d, at 482, 488-491. Whether or not accurate at the time, some of the important findings have been superseded. Two examples suffice. Congress determined no medical schools provide instruction on the prohibited procedure. Congressional Findings (14)(B), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769. The testimony in the District Courts, however, demonstrated intact D & E is taught at medical schools. Nat. Abortion Federation, supra, at 490; Planned Parenthood, 320 F.Supp.2d, at 1029. Congress also found there existed a medical consensus that the prohibited procedure is never medically necessary. Congressional Findings (1), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 767. The evidence presented in the District Courts contradicts that conclusion. See, e.g., Carhart, supra, at 1012-1015, 120 S. Ct. 2597; Nat. Abortion Federation, supra, at 488-489; Planned Parenthood, supra, at 1025-1026. Uncritical deference to Congress' factual findings in these cases is inappropriate. On the other hand, relying on the Court's opinion in Stenberg, respondents contend that an abortion regulation must contain a health exception "if `substantial medical authority supports the proposition that banning a particular procedure could endanger women's health.'" Brief for Respondents in No. 05-380, p. 19 (quoting 530 U.S., at 938, 120 S. Ct. 2597); see also Brief for Respondent Planned Parenthood et al. in No. 05-1382, at 12 (same). As illustrated by respondents' arguments and the decisions of the Courts of Appeals, Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty. Carhart, 413 F.3d, at 796; Planned Parenthood, 435 F.3d, at 1173; see also Nat. Abortion Federation, 437 F.3d, at 296 (Walker, C. J., concurring) (explaining the standard under Stenberg "is a virtually insurmountable evidentiary hurdle"). A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives. V The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. Tr. of Oral Arg. in No. 05-380, pp. 21-23. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied *1639 challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. The latitude given facial challenges in the First Amendment context is inapplicable here. Broad challenges of this type impose "a heavy burden" upon the parties maintaining the suit. Rust v. Sullivan, 500 U.S. 173, 183, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991). What that burden consists of in the specific context of abortion statutes has been a subject of some question. Compare Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514, 110 S. Ct. 2972, 111 L. Ed. 2d 405 (1990) ("[B]ecause appellees are making a facial challenge to a statute, they must show that no set of circumstances exists under which the Act would be valid" (internal quotation marks omitted)), with Casey, 505 U.S., at 895, 112 S. Ct. 2791 (opinion of the Court) (indicating a spousal-notification statute would impose an undue burden "in a large fraction of the cases in which [it] is relevant" and holding the statutory provision facially invalid). See also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 116 S. Ct. 1582, 134 L. Ed. 2d 679 (1996). We need not resolve that debate. As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895, 112 S. Ct. 2791 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. "[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation." United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960) (internal quotation marks omitted). For this reason, "[a]s-applied challenges are the basic building blocks of constitutional adjudication." Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321, 1328 (2000). The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U.S. 410, 411-412, 126 S. Ct. 1016, 163 L. Ed. 2d 990 (2006) (per curiam). No as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life exception. 18 U.S.C. § 1531(a) (2000 ed., Supp. IV). * * * Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed. It is so ordered.

These cases require us to consider the validity of the Partial-Birth Abortion Ban Act of 2003(Act), ( ed., Supp. IV), a federal statute regulating abortion procedures. In recitations preceding its operative provisions the Act refers to the Court's opinion in which also addressed the subject of abortion procedures used in the later stages of pregnancy. Compared to the state statute at issue in the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it. In No. 05-380 () respondents are LeRoy William G. Fitzhugh, William H. Knorr, and Jill L. Vibhakar, doctors who perform second-trimester abortions. These doctors filed their complaint against the Attorney General of the United States in the United States District Court for the District of Nebraska. They challenged the constitutionality of the Act and sought a permanent injunction against its enforcement. In after a 2-week trial, the District Court granted a permanent injunction that prohibited the Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. The Court of Appeals for the Eighth Circuit affirmed. We granted certiorari. In No. 05-1382 (Planned ) respondents are Planned of America, Inc., Planned Golden Gate, and the City and County of San Francisco. The Planned entities sought to enjoin enforcement of the Act in a suit filed in the United States District Court for the Northern District of California. Planned *1620 of The City and County of San Francisco intervened as a plaintiff. In the District Court held a trial spanning a period just short of three weeks, and it, too, enjoined the Attorney General from enforcing the Act. The Court of Appeals for the Ninth Circuit affirmed. We granted certiorari. 547 U.S. I A The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in to discuss abortion procedures in some detail. Three United States District Courts heard extensive evidence describing the procedures. In addition to the two courts involved in the instant cases the District Court for the Southern District of New York also considered the constitutionality of the Act. Nat. Abortion It found the Act unconstitutional, and the Court of Appeals for the Second Circuit affirmed, Nat. Abortion The three District Courts relied on similar medical evidence; indeed, much of the evidence submitted to the court previously had been submitted to the other two -810. We refer to the District Courts' exhaustive opinions in our own discussion of abortion procedures. Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child's development. Between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy, which is to say in the first trimester. Planned and n. 4; App. in No. 05-1382, pp. 45-48. The most common first-trimester abortion method is vacuum aspiration (otherwise known as suction curettage) in which the physician vacuums out the embryonic tissue. Early in this trimester an alternative is to use medication, such as mifepristone (commonly known as RU-486), to terminate the pregnancy. Nat. Abortion The Act does not regulate these procedures. Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as "dilation and evacuation" or "D & E" is the usual abortion method in this trimester. Planned -961. Although individual techniques for performing D & E differ, the general steps are the same. A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion ; App. in No. 05-1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., 856, 859, 862-865, 868, 870, 873-874, 876-877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix *16 for two days, while others use dilators for a day or less. Nat. Abortion ; Planned After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e.g., Nat. Abortion ; Planned Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. ; Nat. Abortion The abortion procedure that was the impetus for the numerous bans on "partial-birth abortion," including the Act, is a variation of this standard D & See M. Haskell, Dilation and Extraction for Late Second Trimester Abortion 1 Appellant's App. in No. 04-3379(CA8), p. 109 (hereinafter Dilation and Extraction). The medical community has not reached unanimity on the appropriate name for this D & E variation. It has been referred to as "intact D & E," "dilation and extraction" (D & X), and "intact D & X." Nat. Abortion ; see also F. Cunningham et al., Williams Obstetrics 243 (identifying the procedure as D & X); Danforth's Obstetrics and Gynecology 567 (J. Scott, R. Gibbs, B. Karlan, & A. Haney eds. 9th ed.2003) (identifying the procedure as intact D & X); M. Paul, Lichtenberg, L. Borgatta, D. Grimes, & P. Stubblefield, A Clinician's Guide to Medical and Surgical Abortion 136 (1999) (identifying the procedure as intact D & E). For discussion purposes this D & E variation will be referred to as intact D & The main difference between the two procedures is that in intact D & E a doctor extracts the fetus intact or largely intact with only a few passes. There are no comprehensive statistics indicating what percentage of all D & Es are performed in this manner. Intact D & E, like regular D & E, begins with dilation of the cervix. Sufficient dilation is essential for the To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called "serial" dilation. ; Planned Doctors who attempt at the outset to perform intact D & E may dilate for two full days or use up to 25 osmotic dilators. See, e.g., Dilation and Extraction 110; *1622 In an intact D & E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified: "If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don't close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible." App. in No. 05-1382, at 74. Rotating the fetus as it is being pulled decreases the odds of dismemberment. ; App. in No. 05-380, pp. 40-41; 5 Appellant's App. in No. 04-3379(CA8), p. 1469. A doctor also "may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level—sometimes using both his hand and a forceps—to exert traction to retrieve the fetus intact until the head is lodged in the [cervix]." -887. Intact D & E gained public notoriety when, in Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110-111. In the usual intact D & E the fetus' head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e.g., ; App. in No. 05-380, at 577; App. in No. 05-1382, at 74, 282. Haskell explained the next step as follows: "`At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and "hooks" the shoulders of the fetus with the index and ring fingers (palm down). "`While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger. "`[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. "`The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.'" H.R.Rep. No. -58, p. 3 (2003). This is an abortion doctor's clinical description. Here is another description from a nurse who witnessed the same method performed on a 26½-week fetus and who testified before the Senate Judiciary Committee: "`Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms—everything but the head. The doctor kept the head right inside the uterus. "`The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. "`The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. "`He cut the umbilical cord and delivered the placenta. He threw the baby *1623 in a pan, along with the placenta and the instruments he had just used.'" Dr. Haskell's approach is not the only method of killing the fetus once its head lodges in the cervix, and "the process has evolved" since his presentation. Planned 320 F.Supp.2d, Another doctor, for example, squeezes the skull after it has been pierced "so that enough brain tissue exudes to allow the head to pass through." App. in No. 05-380, at 41; see also Still other physicians reach into the cervix with their forceps and crush the fetus' skull. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it. ; see also Planned Some doctors performing an intact D & E attempt to remove the fetus without collapsing the skull. See Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because "the objective of [his] procedure is to perform an abortion," not a birth. App. in No. 05-1382, at 408-409. The doctor thus answered in the affirmative when asked whether he would "hold the fetus' head on the internal side of the [cervix] in order to collapse the skull" and kill the fetus before it is born. ; see also Another doctor testified he crushes a fetus' skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has "some viability to it, some movement of limbs," according to this doctor, "[is] always a difficult situation." App. in No. 05-380, at 94; see D & E and intact D & E are not the only second-trimester abortion methods. Doctors also may abort a fetus through medical induction. The doctor medicates the woman to induce labor, and contractions occur to deliver the fetus. Induction, which unlike D & E should occur in a hospital, can last as little as 6 hours but can take longer than 48. It accounts for about five percent of second-trimester abortions before 20 weeks of gestation and 15 percent of those after 20 weeks. Doctors turn to two other methods of second-trimester abortion, hysterotomy and hysterectomy, only in emergency situations because they carry increased risk of complications. In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about07% of second-trimester abortions. Nat. Abortion ; Planned -963. B After Dr. Haskell's procedure received public attention, with ensuing and increasing public concern, bans on "`partial birth abortion'" proliferated. By the time of the decision, about 30 States had enacted bans designed to prohibit the -996, and nn. 12-13, (THOMAS, J., dissenting); see also H.R.Rep. No. -58, at 4-5. In Congress also acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in but President Clinton again vetoed it. In 2003, after this Court's decision in Congress passed the Act at issue here. H.R.Rep. No. -58, at 12-14. On November 5, 2003, President *1624 Bush signed the Act into law. It was to take effect the following day. (a) ( ed., Supp. IV). The Act responded to in two ways. First, Congress made factual findings. Congress determined that this Court in "was required to accept the very questionable findings issued by the district court judge," 2(7), notes following ( ed., Supp. IV), p. 768, ¶ (7) (Congressional Findings), but that Congress was "not bound to accept the same factual findings," ib ¶ (8). Congress found, among other things, that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." ¶ (1). Second, and more relevant here, the Act's language differs from that of the Nebraska statute struck down in See -922, (quoting Neb.Rev.Stat. Ann. 28-328(1), 28-326(9) (Supp.1999)). The operative provisions of the Act provide in relevant part: "(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. "(b) As used in this section— "(1) the term `partial-birth abortion' means an abortion in which the person performing the abortion— "(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and "(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and "(2) the term `physician' means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section. "(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. "(2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning *1625 of the trial for not more than 30 days to permit such a hearing to take place. "(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section." ( ed., Supp. IV). The Act also includes a provision authorizing civil actions that is not of relevance here. 1531(c). C The District Court in concluded the Act was unconstitutional for two reasons. First, it determined the Act was unconstitutional because it lacked an exception allowing the procedure where necessary for the health of the -1030. Second, the District Court found the Act deficient because it covered not merely intact D & E but also certain other D & Es. The Court of Appeals for the Eighth Circuit addressed only the lack of a health -804. The court began its analysis with what it saw as the appropriate question—"whether `substantial medical authority' supports the medical necessity of the banned " (quoting ). This was the proper framework, according to the Court of Appeals, because "when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health " 413 F.3d, The court rejected the Attorney General's attempt to demonstrate changed evidentiary circumstances since and considered itself bound by 's conclusion that a health exception was (explaining "[t]he record in [the] case and the record in [were] similar in all significant respects"). It invalidated the Act. D The District Court in Planned concluded the Act was unconstitutional "because it (1) pose[d] an undue burden on a woman's ability to choose a second trimester abortion; (2)[was] unconstitutionally vague; and (3) require[d] a health exception as set forth by" -1035. The Court of Appeals for the Ninth Circuit agreed. Like the Court of Appeals for the Eighth Circuit, it concluded the absence of a health exception rendered the Act unconstitutional. The court interpreted to require a health exception unless "there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women." Even after applying a deferential standard of review to Congress' factual findings, the Court of Appeals determined "substantial disagreement exists in the medical community regarding whether" the procedures prohibited by the Act are ever necessary to preserve a woman's health. The Court of Appeals concluded further that the Act placed an undue burden on a woman's ability to obtain a second-trimester abortion. The court found the textual differences between the Act and the Nebraska statute struck down in insufficient to distinguish D & E and intact D & -1180. As a result, according to the Court of Appeals, the Act imposed an undue burden because it prohibited D & Finally, the Court of Appeals found the Act void for vagueness. Abortion doctors testified they were uncertain *1626 which procedures the Act made criminal. The court thus concluded the Act did not offer physicians clear warning of its regulatory reach. -1184. Resting on its understanding of the remedial framework established by this Court in v. Planned of Northern New Eng., the Court of Appeals held the Act was unconstitutional on its face and should be permanently -1191. II The principles set forth in the joint opinion in Planned of Southeastern did not find support from all those who join the instant opinion. See (SCALIA, J., joined by THOMAS, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one's views concerning the joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals. involved a challenge to The opinion contains this summary: "It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each." (opinion of the Court). Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child. To implement its holding, rejected both Roe's rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion -876, 878, On this point overruled the holdings in two cases because they undervalued the State's interest in potential life. See (joint opinion) and ). We assume the following principles for the purposes of this opinion. Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." It also may not impose upon this right an undue burden, which exists if a regulation's "purpose or effect is to place a substantial obstacle in the path of a woman *1627 seeking an abortion before the fetus attains viability." On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar. III We begin with a determination of the Act's operation and effect. A straightforward reading of the Act's text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D & E Respondents agree the Act encompasses intact D & E, but they contend its additional reach is both unclear and excessive. Respondents assert that, at the least, the Act is void for vagueness because its scope is indefinite. In the alternative, respondents argue the Act's text proscribes all D & Es. Because D & E is the most common second-trimester abortion method, respondents suggest the Act imposes an undue burden. In this litigation the Attorney General does not dispute that the Act would impose an undue burden if it covered standard D & We conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face. A The Act punishes "knowingly perform[ing]" a "partial-birth abortion." 1531(a) ( ed., Supp. IV). It defines the unlawful abortion in explicit terms. 1531(b)(1). First, the person performing the abortion must "vaginally delive[r] a living fetus." 1531(b)(1)(A). The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. See, e.g., Planned -972. We do not understand this point to be contested by the parties. Second, the Act's definition of partial-birth abortion requires the fetus to be delivered "until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the " 1531(b)(1)(A) ( ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these "anatomical `landmarks'"—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply. Brief for Petitioner in No. 05-380, p. 46. Third, to fall within the Act, a doctor must perform an "overt act, other than completion of delivery, that kills the partially delivered living fetus." 1531(b)(1)(B) ( ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus' death must be separate from delivery. And the overt act must *1628 occur after the delivery to an anatomical landmark. This is because the Act proscribes killing "the partially delivered" fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark. Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have "deliberately and intentionally" delivered the fetus to one of the Act's anatomical landmarks. 1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered "for the purpose of performing an overt act that the [doctor] knows will kill [it]." If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind. See generally 1 W. LaFave, Substantive Criminal Law 5.1 (2d ed.2003) (hereinafter LaFave); 1 C. Torcia, Wharton's Criminal Law 27 (15th ed.1993). B Respondents contend the language described above is indeterminate, and they thus argue the Act is unconstitutionally vague on its face. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." ; Posters `N' The Act satisfies both requirements. The Act provides doctors "of ordinary intelligence a reasonable opportunity to know what is prohibited." Indeed, it sets forth "relatively clear guidelines as to prohibited conduct" and provides "objective criteria" to evaluate whether a doctor has performed a prohibited Posters `N' at -526, Unlike the statutory language in that prohibited the delivery of a "`substantial portion'" of the fetus— where a doctor might question how much of the fetus is a substantial portion—the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. (quoting Neb. Rev.Stat. Ann. 28-326(9) (Supp.1999)). Doctors performing D & E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability. This conclusion is buttressed by the intent that must be proved to impose liability. The Court has made clear that scienter requirements alleviate vagueness concerns. Posters `N' The Act requires the doctor deliberately to have delivered the fetus to an anatomical landmark. 1531(b)(1)(A) ( ed., Supp. IV). Because a doctor performing a D & E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as "a trap for those who act in good faith." at 99 * Respondents likewise have failed to show that the Act should be invalidated on its face because it encourages arbitrary or discriminatory enforcement. at The scienter requirements narrow the scope of the Act's prohibition and limit prosecutorial discretion. It cannot be said that the Act "vests virtually complete discretion in the hands of [law enforcement] to determine whether the [doctor] has satisfied [its provisions]." (invalidating a statute regulating loitering). Respondents' arguments concerning arbitrary enforcement, furthermore, are somewhat speculative. This is a preenforcement challenge, where "no evidence has been, or could be, introduced to indicate whether the [Act] has been enforced in a discriminatory manner or with the aim of inhibiting [constitutionally protected conduct]." Hoffman The Act is not vague. C We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. A review of the statutory text discloses the limits of its reach. The Act prohibits intact D & E; and, notwithstanding respondents' arguments, it does not prohibit the D & E procedure in which the fetus is removed in parts. 1 The Act prohibits a doctor from intentionally performing an intact D & The dual prohibitions of the Act, both of which are necessary for criminal liability, correspond with the steps generally undertaken during this type of First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation. See (b)(1)(A) ( ed., Supp. IV). Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps. This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery. See 1531(b)(1)(B). The Act's intent requirements, however, limit its reach to those physicians who carry out the intact D & E after intending to undertake both steps at the outset. The Act excludes most D & Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability. A doctor performing a standard D & E procedure can often "tak[e] about 10-15 `passes' through the uterus to remove the entire fetus." Planned 320 F.Supp.2d, Removing the fetus in this manner does not violate the Act because the doctor will not have delivered the living fetus to one of the anatomical landmarks or committed an additional overt act that kills the fetus after partial delivery. 1531(b)(1) ( ed., Supp. IV). A comparison of the Act with the Nebraska statute struck down in confirms this point. The statute in prohibited "`deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such *1630 procedure knows will kill the unborn child and does kill the unborn child.'" (quoting Neb.Rev. Stat. Ann. 28-326(9) (Supp.1999)). The Court concluded that this statute encompassed D & E because "D & E will often involve a physician pulling a `substantial portion' of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus." The Court also rejected the limiting interpretation urged by Nebraska's Attorney General that the statute's reference to a "procedure" that "`kill[s] the unborn child'" was to a distinct procedure, not to the abortion procedure as a whole. Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in It adopts the phrase "delivers a living fetus," 1531(b)(1)(A) ( ed., Supp. IV), instead of "`delivering a living unborn child, or a substantial portion thereof,'" (quoting Neb.Rev.Stat. Ann. 28-326(9) (Supp.1999)). The Act's language, unlike the statute in expresses the usual meaning of "deliver" when used in connection with "fetus," namely, extraction of an entire fetus rather than removal of fetal pieces. See Stedman's Medical Dictionary 470 (defining deliver as "[t]o assist a woman in childbirth" and "[t]o extract from an enclosed place, as the fetus from the womb, an object or foreign body"); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni, The HarperCollins Illustrated Medical Dictionary 1 (4th ed.2001); Merriam Webster's Collegiate Dictionary 306 The Act thus displaces the interpretation of "delivering" dictated by the Nebraska statute's reference to a "substantial portion" of the fetus. (indicating that the Nebraska "statute itself specifies that it applies both to delivering `an intact unborn child' or `a substantial portion thereof'"). In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result. See, e.g., 2A N. Singer, Sutherland on Statutes and Statutory Construction 47:28 Here, unlike in the language does not require a departure from the ordinary meaning. D & E does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix. The identification of specific anatomical landmarks to which the fetus must be partially delivered also differentiates the Act from the statute at issue in 1531(b)(1)(A) ( ed., Supp. IV). The Court in interpreted "`substantial portion'" of the fetus to include an arm or a The Act's anatomical landmarks, by contrast, clarify that the removal of a small portion of the fetus is not prohibited. The landmarks also require the fetus to be delivered so that it is partially "outside the body of the " 1531(b)(1)(A). To come within the ambit of the Nebraska statute, on the other hand, a substantial portion of the fetus only had to be delivered into the vagina; no part of the fetus had to be outside the body of the mother before a doctor could face criminal sanctions. By adding an overt-act requirement Congress sought further to meet the Court's objections to the state statute considered in Compare (b)(1) ( ed., Supp. IV) with Neb. Rev.Stat. Ann. 28-326(9) (Supp.1999). The Act makes the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced) by differentiating between the overall partial-birth *1631 abortion and the distinct overt act that kills the fetus. See 530 U.S., -944, The fatal overt act must occur after delivery to an anatomical landmark, and it must be something "other than [the] completion of delivery." 1531(b)(1)(B). This distinction matters because, unlike intact D & E, standard D & E does not involve a delivery followed by a fatal act. The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D & E "`[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'" Edward J. DeBartolo S. Ct. 1392, It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic "`canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.'" (KENNEDY, J., dissenting) (quoting (O'Connor, J., dissenting)). put this novel statutory approach to rest. (KENNEDY, J., dissenting). need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not "genuinely susceptible to two constructions." ; see also In the Court found the statute covered D & -945, Here, by contrast, interpreting the Act so that it does not prohibit standard D & E is the most reasonable reading and understanding of its terms. 2 Contrary arguments by the respondents are unavailing. Respondents look to situations that might arise during D & E, situations not examined in They contend—relying on the testimony of numerous abortion doctors—that D & E may result in the delivery of a living fetus beyond the Act's anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D & E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. Brief for Respondent Planned et al. in No. 05-1382, p. 38. This reasoning, however, does not take account of the Act's intent requirements, which preclude liability from attaching to an accidental intact D & If a doctor's intent at the outset is to perform a D & E in which the fetus would not be delivered to either of the Act's anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present. (b)(1)(A) ( ed., Supp. IV). When a doctor in that situation completes an abortion by performing an intact *1632 D & E, the doctor does not violate the Act. It is true that intent to cause a result may sometimes be inferred if a person "knows that that result is practically certain to follow from his conduct." 1 LaFave 5.2(a), at 341. Yet abortion doctors intending at the outset to perform a standard D & E procedure will not know that a prohibited abortion "is practically certain to follow from" their conduct. A fetus is only delivered largely intact in a small fraction of the overall number of D & E abortions. Planned 320 F.Supp.2d, The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance. Doctors, for example, may remove the fetus in a manner that will increase the chances of an intact delivery. See, e.g., App. in No. 05-1382, at 74, 452. And intact D & E is usually described as involving some manner of serial dilation. See, e.g., Dilation and Extraction 110. Doctors who do not seek to obtain this serial dilation perform an intact D & E on far fewer occasions. See, e.g., -858 This evidence belies any claim that a standard D & E cannot be performed without intending or foreseeing an intact D & Many doctors who testified on behalf of respondents, and who objected to the Act, do not perform an intact D & E by accident. On the contrary, they begin every D & E abortion with the objective of removing the fetus as intact as possible. See, e.g., ; see also This does not prove, as respondents suggest, that every D & E might violate the Act and that the Act therefore imposes an undue burden. It demonstrates only that those doctors who intend to perform a D & E that would involve delivery of a living fetus to one of the Act's anatomical landmarks must adjust their conduct to the law by not attempting to deliver the fetus to either of those points. Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D & E abortions. The Act, then, cannot be held invalid on its face on these grounds. IV Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." 505 U.S., The abortions affected by the Act's regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity. A The Act's purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before *1633 completion of the birth process. Congress stated as follows: "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." Congressional Findings (14)(N), in notes following ( ed., Supp. IV), p. 769. The Act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain: "Partial-birth abortion confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life." Congressional Findings (14)(J), There can be no doubt the government "has an interest in protecting the integrity and ethics of the medical profession." ; see also Under our precedents it is clear the State has a significant role to play in regulating the medical profession. reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court's precedents after Roe had "undervalue[d] the State's interest in potential life." ; see also The plurality opinion indicated "[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." This was not an idle assertion. The three premises of must coexist. See (opinion of the Court). The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting 's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D & E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," Congressional Findings (14)(L), in notes following ( ed., Supp. IV), p. 769, and thus it was concerned with "draw[ing] a *1634 bright line that clearly distinguishes abortion and infanticide." Congressional Findings (14)(G), The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's "fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia." -735, and n. 23, Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of esteem can follow. See In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion n. 22 ; see also It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning"). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. It is objected that the standard D & E is in some respects as brutal, if not more, than the intact D & E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D & E because the former *1635 occurs when the fetus is partially outside the mother to the point of one of the Act's anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D & E, "undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world." Congressional Findings (14)(K), in notes following ( ed., Supp. IV), p. 769. There would be a flaw in this Court's logic, and an irony in its jurisprudence, were we first to conclude a ban on both D & E and intact D & E was overbroad and then to say it is irrational to ban only intact D & E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was "to place a substantial obstacle in the path of a woman seeking an abortion." 505 U.S., B The Act's furtherance of legitimate government interests bears upon, but does not resolve, the next question: whether the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where "`necessary, in appropriate medical judgment, for [the] preservation of the health of the '" -328, (quoting ). The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it "subject[ed] [women] to significant health risks." ; see also (opinion of the Court). In the parties agreed a health exception to the challenged parental-involvement statute was necessary "to avert serious and often irreversible damage to [a pregnant minor's] health." 546 U.S., Here, by contrast, whether the Act creates significant health risks for women has been a contested factual question. The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their position. Respondents presented evidence that intact D & E may be the safest method of abortion, for reasons similar to those adduced in See Abortion doctors testified, for example, that intact D & E decreases the risk of cervical laceration or uterine perforation because it requires fewer passes into the uterus with surgical instruments and does not require the removal of bony fragments of the dismembered fetus, fragments that may be sharp. Respondents also presented evidence that intact D & E was safer both because it reduces the risks that fetal parts will remain in the uterus and because it takes less time to complete. Respondents, in addition, proffered evidence that intact D & E was safer for women with certain medical conditions or women with fetuses that had certain anomalies. See, e.g., -929; Nat. Abortion ; Planned -983. These contentions were contradicted by other doctors who testified in the District Courts and before Congress. They concluded that the alleged health advantages were based on speculation without scientific studies to support them. They considered D & E always to be a safe alternative. See, e.g., ; Nat. Abortion 330 F.Supp.2d, ; Planned *1636 There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women. See, e.g., ; see also Nat. Abortion The three District Courts that considered the Act's constitutionality appeared to be in some disagreement on this central factual question. The District Court for the District of Nebraska concluded "the banned procedure is, sometimes, the safest abortion procedure to preserve the health of women." The District Court for the Northern District of California reached a similar conclusion. Planned (finding intact D & E was "under certain circumstances significantly safer than D & E by disarticulation"). The District Court for the Southern District of New York was more skeptical of the purported health benefits of intact D & It found the Attorney General's "expert witnesses reasonably and effectively refuted [the plaintiffs'] proffered bases for the opinion that [intact D & E] has safety advantages over other second-trimester abortion procedures." Nat. Abortion 330 F.Supp.2d, In addition it did "not believe that many of [the plaintiffs'] purported reasons for why [intact D & E] is medically necessary [were] credible; rather [it found them to be] theoretical or false." The court nonetheless invalidated the Act because it determined "a significant body of medical opinion holds that D & E has safety advantages over induction and that [intact D & E] has some safety advantages (however hypothetical and unsubstantiated by scientific evidence) over D & E for some women in some circumstances." The question becomes whether the Act can stand when this medical uncertainty persists. The Court's precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty. See ; ; ; ; ; see also (KENNEDY, J., dissenting); This traditional rule is consistent with which confirms the State's interest in promoting respect for human life at all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. In the controlling opinion held an informed-consent requirement in the abortion context was "no different from a requirement that a doctor give certain specific information about any medical " (joint opinion). The opinion stated "the doctor-patient relation here is entitled to the same solicitude it receives in other contexts." ; see also (criticizing Roe's trimester framework because, inter alia, it "left this Court to serve as the country's ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States" ); (upholding a restriction on the performance of abortions to licensed physicians despite the respondents' contention "all health evidence contradicts the claim that there is any health basis for the law" ). Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. See at The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden. The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited As we have noted, the Act does not proscribe D & One District Court found D & E to have extremely low rates of medical complications. Planned Another indicated D & E was "generally the safest method of abortion during the second trimester." ; see also Nat. Abortion In addition the Act's prohibition only applies to the delivery of "a living fetus." (b)(1)(A) ( ed., Supp. IV). If the intact D & E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the The instant cases, then, are different from Planned of Central in which the Court invalidated a ban on saline amniocentesis, the then-dominant second-trimester abortion method. The Court found the ban in Danforth to be "an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks." Here the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right. In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05-380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See As respondents have noted, and the District Courts recognized, some recitations in *1638 the Act are factually incorrect. See Nat. Abortion 330 F.Supp.2d, 488-491. Whether or not accurate at the time, some of the important findings have been superseded. Two examples suffice. Congress determined no medical schools provide instruction on the prohibited Congressional Findings (14)(B), in notes following ( ed., Supp. IV), p. 769. The testimony in the District Courts, however, demonstrated intact D & E is taught at medical schools. Nat. Abortion ; Planned Congress also found there existed a medical consensus that the prohibited procedure is never medically necessary. Congressional Findings (1), in notes following ( ed., Supp. IV), p. 767. The evidence presented in the District Courts contradicts that conclusion. See, e.g., ; Nat. Abortion ; Planned Uncritical deference to Congress' factual findings in these cases is inappropriate. On the other hand, relying on the Court's opinion in respondents contend that an abortion regulation must contain a health exception "if `substantial medical authority supports the proposition that banning a particular procedure could endanger women's health.'" Brief for Respondents in No. 05-380, p. 19 (quoting ); see also Brief for Respondent Planned et al. in No. 05-1382, at 12 (same). As illustrated by respondents' arguments and the decisions of the Courts of Appeals, has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty. 413 F.3d, ; Planned ; see also Nat. Abortion (explaining the standard under "is a virtually insurmountable evidentiary hurdle"). A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives. V The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. Tr. of Oral Arg. in No. 05-380, pp. -23. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied *1639 challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. The latitude given facial challenges in the First Amendment context is inapplicable here. Broad challenges of this type impose "a heavy burden" upon the parties maintaining the suit. What that burden consists of in the specific context of abortion statutes has been a subject of some question. Compare with (opinion of the Court) (indicating a spousal-notification statute would impose an undue burden "in a large fraction of the cases in which [it] is relevant" and holding the statutory provision facially invalid). See also Janklow v. Planned Sioux Falls Clinic, We need not resolve that debate. As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. "[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation." United (19) For this reason, "[a]s-applied challenges are the basic building blocks of constitutional adjudication." Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.Rev. 13, 1328 The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, No as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life (a) ( ed., Supp. IV). * * * Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed. It is so ordered.

Justice Thomas

concurring

Gonzales v. Carhart

2007-04-18

https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/

https://www.courtlistener.com/api/rest/v3/clusters/145744/

2006-031

I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), has no basis in the Constitution. See Casey, supra, at 979, 112 S. Ct. 2791 (SCALIA, J., *1640 concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U.S. 914, 980-983, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000) (THOMAS, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U.S. 709, 727, n. 2, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005) (THOMAS, J., concurring).

I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern I write separately to reiterate my view that the Court's abortion jurisprudence, including and has no basis in the Constitution. See (SCALIA, J., *1640 concurring in judgment in part and dissenting in part); I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See

Justice Ginsburg

dissenting

Gonzales v. Carhart

2007-04-18

https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/

https://www.courtlistener.com/api/rest/v3/clusters/145744/

2006-031

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), the Court declared that "[l]iberty finds no refuge in a jurisprudence of doubt." There was, the Court said, an "imperative" need to dispel doubt as to "the meaning and reach" of the Court's 7-to-2 judgment, rendered nearly two decades earlier in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). 505 U.S., at 845, 112 S. Ct. 2791. Responsive to that need, the Court endeavored to provide secure guidance to "[s]tate and federal courts as well as legislatures throughout the Union," by defining "the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures." Ibid. Taking care to speak plainly, the Casey Court restated and reaffirmed Roe's essential holding. 505 U.S., at 845-846, 112 S. Ct. 2791. First, the Court addressed the type of abortion regulation permissible prior to fetal viability. It recognized "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Id., at 846, 112 S. Ct. 2791. Second, the Court acknowledged "the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health." Ibid. (emphasis added). Third, the Court confirmed that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." Ibid. (emphasis added). In reaffirming Roe, the Casey Court described the centrality of "the decision whether to bear . . . a child," Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), to a woman's "dignity and autonomy," her "personhood" and "destiny," her "conception of . . . her place in society." 505 U.S., at 851-852, 112 S. Ct. 2791. Of signal importance here, the Casey Court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect "the health of the woman." Id., at 846, 112 S. Ct. 2791. Seven years ago, in Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000), the Court invalidated a Nebraska statute criminalizing the performance of a medical procedure that, in the political arena, has been dubbed "partial-birth abortion."[1] With fidelity to the Roe-Casey line of precedent, the Court held the Nebraska statute unconstitutional in part because *1641 it lacked the requisite protection for the preservation of a woman's health. Stenberg, 530 U.S., at 930, 120 S. Ct. 2597; cf. Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 327, 126 S. Ct. 961, 163 L. Ed. 2d 812 (2006). Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health. I dissent from the Court's disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices. I A As Casey comprehended, at stake in cases challenging abortion restrictions is a woman's "control over her [own] destiny." 505 U.S., at 869, 112 S. Ct. 2791 (plurality opinion). See also id., at 852, 112 S. Ct. 2791 (majority opinion).[2] "There was a time, not so long ago," when women were "regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution." Id., at 896-897, 112 S. Ct. 2791 (quoting Hoyt v. Florida, 368 U.S. 57, 62, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961)). Those views, this Court made clear in Casey, "are no longer consistent with our understanding of the family, the individual, or the Constitution." 505 U.S., at 897, 112 S. Ct. 2791. Women, it is now acknowledged, have the talent, capacity, and right "to participate equally in the economic and social life of the Nation." Id., at 856, 112 S. Ct. 2791. Their ability to realize their full potential, the Court recognized, is intimately connected to "their ability to control their reproductive lives." Ibid. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature. See, e.g., Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L.Rev. 261 (1992); Law, Rethinking Sex and the Constitution, 132 U. Pa. L.Rev. 955, 1002-1028 (1984). In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard a woman's health. See, e.g., Ayotte, 546 U.S., at 327-328, 126 S. Ct. 961 ("[O]ur precedents hold. . . that a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the [woman]." (quoting Casey, 505 U.S., at 879, 112 S. Ct. 2791 (plurality opinion))); Stenberg, 530 U.S., at *1642 930, 120 S. Ct. 2597 ("Since the law requires a health exception in order to validate even a postviability abortion regulation, it at a minimum requires the same in respect to previability regulation."). See also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-769, 106 S. Ct. 2169, 90 L. Ed. 2d 779 (1986) (invalidating a post-viability abortion regulation for "fail[ure] to require that [a pregnant woman's] health be the physician's paramount consideration"). We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 79, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976) (holding unconstitutional a ban on a method of abortion that "force[d] a woman . . . to terminate her pregnancy by methods more dangerous to her health"). See also Stenberg, 530 U.S., at 931, 120 S. Ct. 2597 ("[Our cases] make clear that a risk to . . . women's health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely."). Indeed, we have applied the rule that abortion regulation must safeguard a woman's health to the particular procedure at issue here—intact dilation and evacuation (D & E).[3] In Stenberg, we expressly held that a statute banning intact D & E was unconstitutional in part because it lacked a health exception. 530 U.S., at 930, 937, 120 S. Ct. 2597. We noted that there existed a "division of medical opinion" about the relative safety of intact D & E, id., at 937, 120 S. Ct. 2597, but we made clear that as long as "substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health," a health exception is required, id., at 938, 120 S. Ct. 2597. We explained: "The word `necessary' in Casey's phrase `necessary, in appropriate medical *1643 judgment, for the preservation of the life or health of the [pregnant woman],' cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey's words `appropriate medical judgment' must embody the judicial need to tolerate responsible differences of medical opinion. . . ." Id., at 937, 120 S. Ct. 2597 (citation omitted). Thus, we reasoned, division in medical opinion "at most means uncertainty, a factor that signals the presence of risk, not its absence." Ibid. "[A] statute that altogether forbids [intact D & E]. . . . consequently must contain a health exception." Id., at 938, 120 S. Ct. 2597. See also id., at 948, 120 S. Ct. 2597 (O'Connor, J., concurring) ("Th[e] lack of a health exception necessarily renders the statute unconstitutional."). B In 2003, a few years after our ruling in Stenberg, Congress passed the Partial-Birth Abortion Ban Act—without an exception for women's health. See 18 U.S.C. § 1531(a) (2000 ed., Supp. IV).[4] The congressional findings on which the Partial-Birth Abortion Ban Act rests do not withstand inspection, as the lower courts have determined and this Court is obliged to concede. Ante, at 1637-1638. See National Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436, 482 (S.D.N.Y.2004) ("Congress did not . . . carefully consider the evidence before arriving at its findings."), aff'd sub nom. National Abortion Federation v. Gonzales, 437 F.3d 278 (C.A.2 2006). See also Planned Parenthood Federation of Am. v. Ashcroft, 320 F. Supp. 2d 957, 1019 (N.D.Cal.2004) ("[N]one of the six physicians who testified before Congress had ever performed an intact D & E. Several did not provide abortion services at all; and one was not even an obgyn. . . . [T]he oral testimony before Congress was not only unbalanced, but intentionally polemic."), aff'd, 435 F.3d 1163 (C.A.9 2006); Carhart v. Ashcroft, 331 F. Supp. 2d 805, 1011 (Neb.2004) ("Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures."), aff'd, 413 F.3d 791 (C.A.8 2005). Many of the Act's recitations are incorrect. See ante, at 1637-1638. For example, Congress determined that no medical schools provide instruction on intact D & E. § 2(14)(B), 117 Stat. 1204, notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769, ¶ (14)(B) (Congressional Findings). But in fact, numerous leading medical schools teach the procedure. See Planned Parenthood, 320 F.Supp.2d, at 1029; National Abortion Federation, 330 F.Supp.2d, at 479. See also Brief for ACOG as Amicus Curiae 18 ("Among the schools that now teach the intact variant are Columbia, Cornell, Yale, New York University, Northwestern, University of *1644 Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago."). More important, Congress claimed there was a medical consensus that the banned procedure is never necessary. Congressional Findings (1), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 767. But the evidence "very clearly demonstrate[d] the opposite." Planned Parenthood, 320 F.Supp.2d, at 1025. See also Carhart, 331 F.Supp.2d, at 1008-1009 ("[T]here was no evident consensus in the record that Congress compiled. There was, however, a substantial body of medical opinion presented to Congress in opposition. If anything . . . the congressional record establishes that there was a `consensus' in favor of the banned procedure."); National Abortion Federation, 330 F.Supp.2d, at 488 ("The congressional record itself undermines [Congress'] finding" that there is a medical consensus that intact D & E "is never medically necessary and should be prohibited." (internal quotation marks omitted)). Similarly, Congress found that "[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures." Congressional Findings (14)(B), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769. But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D & E carries meaningful safety advantages over other methods. See National Abortion Federation, 330 F.Supp.2d, at 490. See also Planned Parenthood, 320 F.Supp.2d, at 1021 ("Congress in its findings . . . chose to disregard the statements by ACOG and other medical organizations."). No comparable medical groups supported the ban. In fact, "all of the government's own witnesses disagreed with many of the specific congressional findings." Id., at 1024. C In contrast to Congress, the District Courts made findings after full trials at which all parties had the opportunity to present their best evidence. The courts had the benefit of "much more extensive medical and scientific evidence . . . concerning the safety and necessity of intact D & Es." Planned Parenthood, 320 F.Supp.2d, at 1014; cf. National Abortion Federation, 330 F.Supp.2d, at 482 (District Court "heard more evidence during its trial than Congress heard over the span of eight years."). During the District Court trials, "numerous" "extraordinarily accomplished" and "very experienced" medical experts explained that, in certain circumstances and for certain women, intact D & E is safer than alternative procedures and necessary to protect women's health. Carhart, 331 F.Supp.2d, at 1024-1027; see Planned Parenthood, 320 F.Supp.2d, at 1001 ("[A]ll of the doctors who actually perform intact D & Es concluded that in their opinion and clinical judgment, intact D & Es remain the safest option for certain individual women under certain individual health circumstances, and are significantly safer for these women than other abortion techniques, and are thus medically necessary."); cf. ante, at 1635 ("Respondents presented evidence that intact D & E may be the safest method of abortion, for reasons similar to those adduced in Stenberg."). According to the expert testimony plaintiffs introduced, the safety advantages of intact D & E are marked for women with certain medical conditions, for example, *1645 uterine scarring, bleeding disorders, heart disease, or compromised immune systems. See Carhart, 331 F.Supp.2d, at 924-929, 1026-1027; National Abortion Federation, 330 F.Supp.2d, at 472-473; Planned Parenthood, 320 F.Supp.2d, at 992-994, 1001. Further, plaintiffs' experts testified that intact D & E is significantly safer for women with certain pregnancy-related conditions, such as placenta previa and accreta, and for women carrying fetuses with certain abnormalities, such as severe hydrocephalus. See Carhart, 331 F.Supp.2d, at 924, 1026-1027; National Abortion Federation, 330 F.Supp.2d, at 473-474; Planned Parenthood, 320 F.Supp.2d, at 992-994, 1001. See also Stenberg, 530 U.S., at 929, 120 S. Ct. 2597; Brief for ACOG as Amicus Curiae 2, 13-16. Intact D & E, plaintiffs' experts explained, provides safety benefits over D & E by dismemberment for several reasons: First, intact D & E minimizes the number of times a physician must insert instruments through the cervix and into the uterus, and thereby reduces the risk of trauma to, and perforation of, the cervix and uterus—the most serious complication associated with nonintact D & E. See Carhart, 331 F.Supp.2d, at 923-928, 1025; National Abortion Federation, 330 F.Supp.2d, at 471; Planned Parenthood, 320 F.Supp.2d, at 982, 1001. Second, removing the fetus intact, instead of dismembering it in utero, decreases the likelihood that fetal tissue will be retained in the uterus, a condition that can cause infection, hemorrhage, and infertility. See Carhart, 331 F.Supp.2d, at 923-928, 1025-1026; National Abortion Federation, 330 F.Supp.2d, at 472; Planned Parenthood, 320 F.Supp.2d, at 1001. Third, intact D & E diminishes the chances of exposing the patient's tissues to sharp bony fragments sometimes resulting from dismemberment of the fetus. See Carhart, 331 F.Supp.2d, at 923-928, 1026; National Abortion Federation, 330 F.Supp.2d, at 471; Planned Parenthood, 320 F.Supp.2d, at 1001. Fourth, intact D & E takes less operating time than D & E by dismemberment, and thus may reduce bleeding, the risk of infection, and complications relating to anesthesia. See Carhart, 331 F.Supp.2d, at 923-928, 1026; National Abortion Federation, 330 F.Supp.2d, at 472; Planned Parenthood, 320 F.Supp.2d, at 1001. See also Stenberg, 530 U.S., at 928-929, 932, 120 S. Ct. 2597; Brief for ACOG as Amicus Curiae 2, 11-13. Based on thoroughgoing review of the trial evidence and the congressional record, each of the District Courts to consider the issue rejected Congress' findings as unreasonable and not supported by the evidence. See Carhart, 331 F.Supp.2d, at 1008-1027; National Abortion Federation, 330 F.Supp.2d, at 482, 488-491; Planned Parenthood, 320 F.Supp.2d, at 1032. The trial courts concluded, in contrast to Congress' findings, that "significant medical authority supports the proposition that in some circumstances, [intact D & E] is the safest procedure." Id., at 1033 (quoting Stenberg, 530 U.S., at 932, 120 S. Ct. 2597); accord Carhart, 331 F.Supp.2d, at 1008-1009, 1017-1018; National Abortion Federation, 330 F.Supp.2d, at 480-482;[5] cf. Stenberg, 530 U.S., at 932, 120 S. Ct. 2597 ("[T]he record shows that significant medical authority supports the proposition that *1646 in some circumstances, [intact D & E] would be the safest procedure."). The District Courts' findings merit this Court's respect. See, e.g., Fed. Rule Civ. Proc. 52(a); Salve Regina College v. Russell, 499 U.S. 225, 233, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991). Today's opinion supplies no reason to reject those findings. Nevertheless, despite the District Courts' appraisal of the weight of the evidence, and in undisguised conflict with Stenberg, the Court asserts that the Partial-Birth Abortion Ban Act can survive "when . . . medical uncertainty persists." Ante, at 1636. This assertion is bewildering. Not only does it defy the Court's longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty, see supra, at 1641-1642; it gives short shrift to the records before us, carefully canvassed by the District Courts. Those records indicate that "the majority of highly-qualified experts on the subject believe intact D & E to be the safest, most appropriate procedure under certain circumstances." Planned Parenthood, 320 F.Supp.2d, at 1034. See supra, at 1644-1645. The Court acknowledges some of this evidence, ante, at 1635, but insists that, because some witnesses disagreed with the ACOG and other experts' assessment of risk, the Act can stand. Ante, at 1635-1636, 1638-1639. In this insistence, the Court brushes under the rug the District Courts' well-supported findings that the physicians who testified that intact D & E is never necessary to preserve the health of a woman had slim authority for their opinions. They had no training for, or personal experience with, the intact D & E procedure, and many performed abortions only on rare occasions. See Planned Parenthood, 320 F.Supp.2d, at 980; Carhart, 331 F.Supp.2d, at 1025; cf. National Abortion Federation, 330 F.Supp.2d, at 462-464. Even indulging the assumption that the Government witnesses were equally qualified to evaluate the relative risks of abortion procedures, their testimony could not erase the "significant medical authority support[ing] the proposition that in some circumstances, [intact D & E] would be the safest procedure." Stenberg, 530 U.S., at 932, 120 S. Ct. 2597.[6] II A The Court offers flimsy and transparent justifications for upholding a nationwide *1647 ban on intact D & E sans any exception to safeguard a women's health. Today's ruling, the Court declares, advances "a premise central to [Casey's] conclusion"—i.e., the Government's "legitimate and substantial interest in preserving and promoting fetal life." Ante, at 1625-1626. See also ante, at 1626 ("[W]e must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child."). But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion. See Stenberg, 530 U.S., at 930, 120 S. Ct. 2597. And surely the statute was not designed to protect the lives or health of pregnant women. Id., at 951, 120 S. Ct. 2597 (GINSBURG, J., concurring); cf. Casey, 505 U.S., at 846, 112 S. Ct. 2791 (recognizing along with the State's legitimate interest in the life of the fetus, its "legitimate interes[t]. . . in protecting the health of the woman" (emphasis added)). In short, the Court upholds a law that, while doing nothing to "preserv[e] . . . fetal life," ante, at 1626, bars a woman from choosing intact D & E although her doctor "reasonably believes [that procedure] will best protect [her]." Stenberg, 530 U.S., at 946, 120 S. Ct. 2597 (STEVENS, J., concurring). As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D & E procedure. See ante, at 1637. But why not, one might ask. Nonintact D & E could equally be characterized as "brutal," ante, at 1633, involving as it does "tear[ing] [a fetus] apart" and "ripp[ing] off" its limbs, ante, at 1620-1621, 1621-1622. "[T]he notion that either of these two equally gruesome procedures . . . is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational." Stenberg, 530 U.S., at 946-947, 120 S. Ct. 2597 (STEVENS, J., concurring). Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. Ante, at 1633-1634. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, ante, at 1621, 1637-1638, or a fetus delivered through medical induction or cesarean, ante, at 1644. Yet, the availability of those procedures—along with D & E by dismemberment—the Court says, saves the ban on intact D & E from a declaration of unconstitutionality. Ante, at 1637-1638. Never mind that the procedures deemed acceptable might put a woman's health at greater risk. See supra, at 1646, and n. 6; cf. ante, at 1621, 1635-1636. Ultimately, the Court admits that "moral concerns" are at work, concerns that could yield prohibitions on any abortion. See ante, at 1633-1634 ("Congress could. . . conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition."). Notably, the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U.S., at 850, 112 S. Ct. 2791 ("Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."); Lawrence v. Texas, 539 U.S. 558, 571, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) (Though "[f]or many persons [objections to homosexual conduct] are not trivial concerns *1648 but profound and deep convictions accepted as ethical and moral principles," the power of the State may not be used "to enforce these views on the whole society through operation of the criminal law." (citing Casey, 505 U.S., at 850, 112 S. Ct. 2791)). Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." Ante, at 1634.[7] Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D & E procedure. Ante, at 1633-1634.[8] The solution the Court approves, then, is not to require doctors to *1649 inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U.S., at 873, 112 S. Ct. 2791 (plurality opinion) ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning."). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.[9] This way of thinking reflects ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U.S. 412, 422-423, 28 S. Ct. 324, 52 L. Ed. 551 (1908) ("protective" legislation imposing hours-of-work limitations on women only held permissible in view of women's "physical structure and a proper discharge of her maternal funct[ion]"); Bradwell v. State, 16 Wall. 130, 141, 21 L. Ed. 442 (1873) (Bradley, J., concurring) ("Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother."), with United States v. Virginia, 518 U.S. 515, 533, 542, n. 12, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) (State may not rely on "overbroad generalizations" about the "talents, capacities, or preferences" of women; "[s]uch judgments have. . . impeded . . . women's progress toward full citizenship stature throughout our Nation's history"); Califano v. Goldfarb, 430 U.S. 199, 207, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977) (gender-based Social Security classification rejected because it rested on "archaic and overbroad generalizations" "such as assumptions as to [women's] dependency" (internal quotation marks omitted)). Though today's majority may regard women's feelings on the matter as "self-evident," ante, at 1634, this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society." Casey, 505 U.S., at 852, 112 S. Ct. 2791. See also id., at 877, 112 S. Ct. 2791 (plurality opinion) ("[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it."); supra, at 1641-1642. B In cases on a "woman's liberty to determine whether to [continue] her pregnancy," this Court has identified viability as a critical consideration. See Casey, 505 U.S., at 869-870, 112 S. Ct. 2791 (plurality opinion). "[T]here is no line [more workable] *1650 than viability," the Court explained in Casey, for viability is "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. . . . In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child." Id., at 870, 112 S. Ct. 2791. Today, the Court blurs that line, maintaining that "[t]he Act [legitimately] appl[ies] both previability and postviability because . . . a fetus is a living organism while within the womb, whether or not it is viable outside the womb." Ante, at 1627. Instead of drawing the line at viability, the Court refers to Congress' purpose to differentiate "abortion and infanticide" based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 1633-1634 (quoting Congressional Findings (14)(G), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769). One wonders how long a line that saves no fetus from destruction will hold in face of the Court's "moral concerns." See supra, at 1647; cf. ante, at 1627 (noting that "[i]n this litigation" the Attorney General "does not dispute that the Act would impose an undue burden if it covered standard D & E"). The Court's hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." Ante, at 1625, 1631, 1632, 1635, 1636. A fetus is described as an "unborn child," and as a "baby," ante, at 1620, 1622-1623; second-trimester, previability abortions are referred to as "late-term," ante, at 1632; and the reasoned medical judgments of highly trained doctors are dismissed as "preferences" motivated by "mere convenience," ante, at 1620, 1638. Instead of the heightened scrutiny we have previously applied, the Court determines that a "rational" ground is enough to uphold the Act, ante, at 1633-1634, 1638. And, most troubling, Casey's principles, confirming the continuing vitality of "the essential holding of Roe," are merely "assume[d]" for the moment, ante, at 1626, 1635, rather than "retained" or "reaffirmed," Casey, 505 U.S., at 846, 112 S. Ct. 2791. III A The Court further confuses our jurisprudence when it declares that "facial attacks" are not permissible in "these circumstances," i.e., where medical uncertainty exists. Ante, at 1638; see ibid. ("In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack."). This holding is perplexing given that, in materially identical circumstances we held that a statute lacking a health exception was unconstitutional on its face. Stenberg, 530 U.S., at 930, 120 S. Ct. 2597; see id., at 937, 120 S. Ct. 2597 (in facial challenge, law held unconstitutional because "significant body of medical opinion believes [the] procedure may bring with it greater safety for some patients" (emphasis added)). See also Sabri v. United States, 541 U.S. 600, 609-610, 124 S. Ct. 1941, 158 L. Ed. 2d 891 (2004) (identifying abortion as one setting in which we have recognized the validity of facial challenges); Fallon, Making Sense of Overbreadth, 100 Yale L.J. 853, 859, n. 29 (1991) *1651 ("[V]irtually all of the abortion cases reaching the Supreme Court since Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), have involved facial attacks on state statutes, and the Court, whether accepting or rejecting the challenges on the merits, has typically accepted this framing of the question presented."). Accord Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321, 1356 (2000); Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L.Rev. 235, 271-276 (1994). Without attempting to distinguish Stenberg and earlier decisions, the majority asserts that the Act survives review because respondents have not shown that the ban on intact D & E would be unconstitutional "in a large fraction of relevant cases." Ante, at 1639 (citing Casey, 505 U.S., at 895, 112 S. Ct. 2791). But Casey makes clear that, in determining whether any restriction poses an undue burden on a "large fraction" of women, the relevant class is not "all women," nor "all pregnant women," nor even all women "seeking abortions." 505 U.S., at 895, 112 S. Ct. 2791. Rather, a provision restricting access to abortion, "must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction," ibid. Thus the absence of a health exception burdens all women for whom it is relevant—women who, in the judgment of their doctors, require an intact D & E because other procedures would place their health at risk.[10] Cf. Stenberg, 530 U.S., at 934, 120 S. Ct. 2597 (accepting the "relative rarity" of medically indicated intact D & Es as true but not "highly relevant"—for "the health exception question is whether protecting women's health requires an exception for those infrequent occasions"); Ayotte, 546 U.S., at 328, 126 S. Ct. 961 (facial challenge entertained where "[i]n some very small percentage of cases ... women ... need immediate abortions to avert serious, and often irreversible damage to their health"). It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases. B If there is anything at all redemptive to be said of today's opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act. "The Act is open," the Court states, "to a proper as-applied challenge in a discrete case." Ante, at 1639; see ante, at 1639 ("The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained."). But the Court offers no clue on what a "proper" lawsuit might look like. See ante, at 1638-1639. Nor does the Court explain why the injunctions ordered by the District Courts should not remain in place, trimmed only to exclude instances in which another procedure would safeguard a woman's health at least equally well. Surely the Court cannot mean that no suit may be brought until a woman's health is immediately jeopardized by the ban on intact D & E. A woman "suffer[ing] from medical complications," ante, at 1639, needs access to the *1652 medical procedure at once and cannot wait for the judicial process to unfold. See Ayotte, 546 U.S., at 328, 126 S. Ct. 961. The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions. In such a second round, the Court suggests, the challengers could succeed upon demonstrating that "in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used." Ante, at 1638. One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D & E prohibition. The Court envisions that in an as-applied challenge, "the nature of the medical risk can be better quantified and balanced." Ibid. But it should not escape notice that the record already includes hundreds and hundreds of pages of testimony identifying "discrete and well-defined instances" in which recourse to an intact D & E would better protect the health of women with particular conditions. See supra, at 1644-1645. Record evidence also documents that medical exigencies, unpredictable in advance, may indicate to a well-trained doctor that intact D & E is the safest procedure. See ibid. In light of this evidence, our unanimous decision just one year ago in Ayotte counsels against reversal. See 546 U.S., at 331, 126 S. Ct. 961 (remanding for reconsideration of the remedy for the absence of a health exception, suggesting that an injunction prohibiting unconstitutional applications might suffice). The Court's allowance only of an "as-applied challenge in a discrete case," ante, at 1639—jeopardizes women's health and places doctors in an untenable position. Even if courts were able to carve-out exceptions through piecemeal litigation for "discrete and well-defined instances," ante, at 1638, women whose circumstances have not been anticipated by prior litigation could well be left unprotected. In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients. The Court is thus gravely mistaken to conclude that narrow as-applied challenges are "the proper manner to protect the health of the woman." Cf. ibid. IV As the Court wrote in Casey, "overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law." 505 U.S., at 865, 112 S. Ct. 2791. "[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable." Id., at 854, 112 S. Ct. 2791. See also id., at 867, 112 S. Ct. 2791 ("[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."). Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of "the rule of law" and the "principles of stare decisis." Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman's health. See supra, at 1643, n. 4. Although Congress' findings could not withstand the crucible of trial, the Court *1653 defers to the legislative override of our Constitution-based rulings. See supra, at 1643-1644. A decision so at odds with our jurisprudence should not have staying power. In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court— and with increasing comprehension of its centrality to women's lives. See supra, at 1641, n. 2; supra, at 1643, n. 4. When "a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue." Stenberg, 530 U.S., at 952, 120 S. Ct. 2597 (GINSBURG, J., concurring) (quoting Hope Clinic v. Ryan, 195 F.3d 857, 881 (C.A.7 1999) (Posner, C. J., dissenting)). * * * For the reasons stated, I dissent from the Court's disposition and would affirm the judgments before us for review.

In Planned of Southeastern the Court declared that "[l]iberty finds no refuge in a jurisprudence of doubt" There was, the Court said, an "imperative" need to dispel doubt as to "the meaning and reach" of the Court's 7-to-2 judgment, rendered nearly two decades earlier in Responsive to that need, the Court endeavored to provide secure guidance to "[s]tate and federal courts as well as legislatures throughout the Union," by defining "the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures" Ibid Taking care to speak plainly, the Court restated and reaffirmed Roe's essential holding -846, First, the Court addressed the type of abortion regulation permissible prior to fetal viability It recognized "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State" Id, Second, the Court acknowledged "the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health" Ibid Third, the Court confirmed that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child" Ibid In reaffirming Roe, the Court described the centrality of "the decision whether to bear a child," Eisenstadt v Baird, 405 US 438, 92 S Ct 1029, 31 L Ed 2d 349 to a woman's "dignity and autonomy," her "personhood" and "destiny," her "conception of her place in society" 505 US, at 851-852, Of signal importance here, the Court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect "the health of the woman" Id, Seven years ago, in v 530 US 914, 120 S Ct 2597, 147 L Ed 2d 743 the Court invalidated a Nebraska statute criminalizing the performance of a medical procedure that, in the political arena, has been dubbed "partial-birth abortion"[1] With fidelity to the Roe- line of precedent, the Court held the Nebraska statute unconstitutional in part because *1641 it lacked the requisite protection for the preservation of a woman's health 530 US, at 930, 120 S Ct 2597; cf v Planned of Northern New Eng, 546 US 320, 126 S Ct 961, 163 L Ed 2d 812 Today's decision is alarming It refuses to take and seriously It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG) It blurs the line, firmly drawn in between previability and postviability abortions And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health I dissent from the Court's disposition Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices I A As comprehended, at stake in cases challenging abortion restrictions is a woman's "control over her [own] destiny" 505 US, at 869, (plurality opinion) See also id, (majority opinion)[2] "There was a time, not so long ago," when women were "regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution" Id, ) Those views, this Court made clear in "are no longer consistent with our understanding of the family, the individual, or the Constitution" 505 US, at 897, Women, it is now acknowledged, have the talent, capacity, and right "to participate equally in the economic and social life of the Nation" Id, Their ability to realize their full potential, the Court recognized, is intimately connected to "their ability to control their reproductive lives" Ibid Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature See, eg, Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan LRev 261 ; Law, Rethinking Sex and the Constitution, 132 U Pa LRev 955, 1002-1028 (1984) In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard a woman's health See, eg, 546 US, at -328, 126 S Ct 961 ("[O]ur precedents hold that a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the [woman]" (quoting 505 US, at 8, (plurality opinion))); 530 US, at *1642 930, 120 S Ct 2597 ("Since the law requires a health exception in order to validate even a postviability abortion regulation, it at a minimum requires the same in respect to previability regulation") See also Thornburgh v American College of Obstetricians and Gynecologists, 476 US 747, 106 S Ct 2169, 90 L Ed 2d 7 We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion See Planned of Central Mo v Danforth, 428 US 52, 96 S Ct 2831, 49 L Ed 2d 788 (holding unconstitutional a ban on a method of abortion that "force[d] a woman to terminate her pregnancy by methods more dangerous to her health") See also 530 US, at 931, 120 S Ct 2597 ("[Our cases] make clear that a risk to women's health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely") Indeed, we have applied the rule that abortion regulation must safeguard a woman's health to the particular procedure at issue here—intact dilation and evacuation (D & E)[3] In we expressly held that a statute banning intact D & E was unconstitutional in part because it lacked a health exception 530 US, at 930, 937, 120 S Ct 2597 We noted that there existed a "division of medical opinion" about the relative safety of intact D & E, id, 120 S Ct 2597, but we made clear that as long as "substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health," a health exception is required, id, 120 S Ct 2597 We explained: "The word `necessary' in 's phrase `necessary, in appropriate medical *1643 judgment, for the preservation of the life or health of the [pregnant woman],' cannot refer to an absolute necessity or to absolute proof Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases Neither can that phrase require unanimity of medical opinion Doctors often differ in their estimation of comparative health risks and appropriate treatment And 's words `appropriate medical judgment' must embody the judicial need to tolerate responsible differences of medical opinion " Id, 120 S Ct 2597 (citation omitted) Thus, we reasoned, division in medical opinion "at most means uncertainty, a factor that signals the presence of risk, not its absence" Ibid "[A] statute that altogether forbids [intact D & E] consequently must contain a health exception" Id, 120 S Ct 2597 See also id, 120 S Ct 2597 (O'Connor, J, concurring) ("Th[e] lack of a health exception necessarily renders the statute unconstitutional") B In a few years after our ruling in Congress passed the Partial-Birth Abortion Ban Act—without an exception for women's health See 18 USC 1531(a) ( ed, Supp IV)[4] The congressional findings on which the Partial-Birth Abortion Ban Act rests do not withstand inspection, as the lower courts have determined and this Court is obliged to concede Ante, at 1637-1638 See National Abortion v Ashcroft, 330 F Supp 2d 436, ("Congress did not carefully consider the evidence before arriving at its findings"), aff'd sub nom National Abortion v Gonzales, 437 F3d 278 See also Planned of Am v Ashcroft, 320 F Supp 2d 957, ("[N]one of the six physicians who testified before Congress had ever performed an intact D & E Several did not provide abortion services at all; and one was not even an obgyn [T]he oral testimony before Congress was not only unbalanced, but intentionally polemic"), aff'd, 435 F3d 1163 ; v Ashcroft, 331 F Supp 2d 805, ("Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures"), aff'd, 413 F3d 1 Many of the Act's recitations are incorrect See ante, at 1637-1638 For example, Congress determined that no medical schools provide instruction on intact D & E 2(14)(B), 117 Stat 1204, notes following 18 USC 1531 ( ed, Supp IV), p 769, ¶ (14)(B) (Congressional Findings) But in fact, numerous leading medical schools teach the procedure See Planned 320 FSupp2d, at 1029; National Abortion 330 FSupp2d, at 4 See also Brief for ACOG as Amicus Curiae 18 ("Among the schools that now teach the intact variant are Columbia, Cornell, Yale, New York University, Northwestern, University of *1644 Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago") More important, Congress claimed there was a medical consensus that the banned procedure is never necessary Congressional Findings (1), in notes following 18 USC 1531 ( ed, Supp IV), p 767 But the evidence "very clearly demonstrate[d] the opposite" Planned 320 FSupp2d, at 1025 See also 331 FSupp2d, at 1008-1009 ("[T]here was no evident consensus in the record that Congress compiled There was, however, a substantial body of medical opinion presented to Congress in opposition If anything the congressional record establishes that there was a `consensus' in favor of the banned procedure"); National Abortion 330 FSupp2d, at 488 ("The congressional record itself undermines [Congress'] finding" that there is a medical consensus that intact D & E "is never medically necessary and should be prohibited" (internal quotation marks omitted)) Similarly, Congress found that "[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures" Congressional Findings (14)(B), in notes following 18 USC 1531 ( ed, Supp IV), p 769 But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D & E carries meaningful safety advantages over other methods See National Abortion 330 FSupp2d, at 490 See also Planned 320 FSupp2d, at 1021 ("Congress in its findings chose to disregard the statements by ACOG and other medical organizations") No comparable medical groups supported the ban In fact, "all of the government's own witnesses disagreed with many of the specific congressional findings" Id, C In contrast to Congress, the District Courts made findings after full trials at which all parties had the opportunity to present their best evidence The courts had the benefit of "much more extensive medical and scientific evidence concerning the safety and necessity of intact D & Es" Planned 320 FSupp2d, at 1014; cf National Abortion 330 FSupp2d, at (District Court "heard more evidence during its trial than Congress heard over the span of eight years") During the District Court trials, "numerous" "extraordinarily accomplished" and "very experienced" medical experts explained that, in certain circumstances and for certain women, intact D & E is safer than alternative procedures and necessary to protect women's health 331 FSupp2d, -1027; see Planned 320 FSupp2d, at 1001 ("[A]ll of the doctors who actually perform intact D & Es concluded that in their opinion and clinical judgment, intact D & Es remain the safest option for certain individual women under certain individual health circumstances, and are significantly safer for these women than other abortion techniques, and are thus medically necessary"); cf ante, at 1635 ("Respondents presented evidence that intact D & E may be the safest method of abortion, for reasons similar to those adduced in ") According to the expert testimony plaintiffs introduced, the safety advantages of intact D & E are marked for women with certain medical conditions, for example, *1645 uterine scarring, bleeding disorders, heart disease, or compromised immune systems See 331 FSupp2d, at 924-929, 1026-1027; National Abortion 330 FSupp2d, at 472-473; Planned 320 FSupp2d, at 992-994, 1001 Further, plaintiffs' experts testified that intact D & E is significantly safer for women with certain pregnancy-related conditions, such as placenta previa and accreta, and for women carrying fetuses with certain abnormalities, such as severe hydrocephalus See 331 FSupp2d, at 924, 1026-1027; National Abortion 330 FSupp2d, at 473-474; Planned 320 FSupp2d, at 992-994, 1001 See also 530 US, at 929, 120 S Ct 2597; Brief for ACOG as Amicus Curiae 2, 13-16 Intact D & E, plaintiffs' experts explained, provides safety benefits over D & E by dismemberment for several reasons: First, intact D & E minimizes the number of times a physician must insert instruments through the cervix and into the uterus, and thereby reduces the risk of trauma to, and perforation of, the cervix and uterus—the most serious complication associated with nonintact D & E See 331 FSupp2d, at 923-928, 1025; National Abortion 330 FSupp2d, at 471; Planned 320 FSupp2d, at 982, 1001 Second, removing the fetus intact, instead of dismembering it in utero, decreases the likelihood that fetal tissue will be retained in the uterus, a condition that can cause infection, hemorrhage, and infertility See 331 FSupp2d, at 923-928, 1025-1026; National Abortion 330 FSupp2d, at 472; Planned 320 FSupp2d, at 1001 Third, intact D & E diminishes the chances of exposing the patient's tissues to sharp bony fragments sometimes resulting from dismemberment of the fetus See 331 FSupp2d, at 923-928, 1026; National Abortion 330 FSupp2d, at 471; Planned 320 FSupp2d, at 1001 Fourth, intact D & E takes less operating time than D & E by dismemberment, and thus may reduce bleeding, the risk of infection, and complications relating to anesthesia See 331 FSupp2d, at 923-928, 1026; National Abortion 330 FSupp2d, at 472; Planned 320 FSupp2d, at 1001 See also 530 US, at 928-929, 932, 120 S Ct 2597; Brief for ACOG as Amicus Curiae 2, 11-13 Based on thoroughgoing review of the trial evidence and the congressional record, each of the District Courts to consider the issue rejected Congress' findings as unreasonable and not supported by the evidence See 331 FSupp2d, at 1008-1027; National Abortion 330 FSupp2d, at 488-491; Planned 320 FSupp2d, at 1032 The trial courts concluded, in contrast to Congress' findings, that "significant medical authority supports the proposition that in some circumstances, [intact D & E] is the safest procedure" Id, (quoting 530 US, at 932, 120 S Ct 2597); accord 331 FSupp2d, at 1008-1009, 1017-1018; National Abortion 330 FSupp2d, at 480-;[5] cf 530 US, at 932, 120 S Ct 2597 ("[T]he record shows that significant medical authority supports the proposition that *1646 in some circumstances, [intact D & E] would be the safest procedure") The District Courts' findings merit this Court's respect See, eg, Fed Rule Civ Proc 52(a); Salve Regina College v Russell, 499 US 225, 111 S Ct 1217, 113 L Ed 2d 190 Today's opinion supplies no reason to reject those findings Nevertheless, despite the District Courts' appraisal of the weight of the evidence, and in undisguised conflict with the Court asserts that the Partial-Birth Abortion Ban Act can survive "when medical uncertainty persists" Ante, at 1636 This assertion is bewildering Not only does it defy the Court's longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty, see ; it gives short shrift to the records before us, carefully canvassed by the District Courts Those records indicate that "the majority of highly-qualified experts on the subject believe intact D & E to be the safest, most appropriate procedure under certain circumstances" Planned 320 FSupp2d, at 1034 See The Court acknowledges some of this evidence, ante, at 1635, but insists that, because some witnesses disagreed with the ACOG and other experts' assessment of risk, the Act can stand Ante, at 1635-1636, 1638-1639 In this insistence, the Court brushes under the rug the District Courts' well-supported findings that the physicians who testified that intact D & E is never necessary to preserve the health of a woman had slim authority for their opinions They had no training for, or personal experience with, the intact D & E procedure, and many performed abortions only on rare occasions See Planned 320 FSupp2d, at 980; 331 FSupp2d, at 1025; cf National Abortion 330 FSupp2d, at 4-464 Even indulging the assumption that the Government witnesses were equally qualified to evaluate the relative risks of abortion procedures, their testimony could not erase the "significant medical authority support[ing] the proposition that in some circumstances, [intact D & E] would be the safest procedure" 530 US, at 932, 120 S Ct 2597[6] II A The Court offers flimsy and transparent justifications for upholding a nationwide *1647 ban on intact D & E sans any exception to safeguard a women's health Today's ruling, the Court declares, advances "a premise central to ['s] conclusion"—ie, the Government's "legitimate and substantial interest in preserving and promoting fetal life" Ante, at 15-16 See also ante, at 16 ("[W]e must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child") But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion See 530 US, at 930, 120 S Ct 2597 And surely the statute was not designed to protect the lives or health of pregnant women Id, 120 S Ct 2597 (GINSBURG, J, concurring); cf 505 US, (recognizing along with the State's legitimate interest in the life of the fetus, its "legitimate interes[t] in protecting the health of the woman" ) In short, the Court upholds a law that, while doing nothing to "preserv[e] fetal life," ante, at 16, bars a woman from choosing intact D & E although her doctor "reasonably believes [that procedure] will best protect [her]" 530 US, at 946, 120 S Ct 2597 (STEVENS, J, concurring) As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D & E procedure See ante, at 1637 But why not, one might ask Nonintact D & E could equally be characterized as "brutal," ante, at 1633, involving as it does "tear[ing] [a fetus] apart" and "ripp[ing] off" its limbs, ante, at 10-11, 11-12 "[T]he notion that either of these two equally gruesome procedures is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational" 530 US, at 946-947, 120 S Ct 2597 (STEVENS, J, concurring) Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant Ante, at 1633-1634 But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, ante, at 11, 1637-1638, or a fetus delivered through medical induction or cesarean, ante, at 1644 Yet, the availability of those procedures—along with D & E by dismemberment—the Court says, saves the ban on intact D & E from a declaration of unconstitutionality Ante, at 1637-1638 Never mind that the procedures deemed acceptable might put a woman's health at greater risk See and n 6; cf ante, at 11, 1635-1636 Ultimately, the Court admits that "moral concerns" are at work, concerns that could yield prohibitions on any abortion See ante, at 1633-1634 ("Congress could conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition") Notably, the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent See, eg, 505 US, at 850, ("Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision Our obligation is to define the liberty of all, not to mandate our own moral code"); Lawrence v Texas, 539 US 558, 123 S Ct 2472, 156 L Ed 2d 508 (Though "[f]or many persons [objections to homosexual conduct] are not trivial concerns *1648 but profound and deep convictions accepted as ethical and moral principles," the power of the State may not be used "to enforce these views on the whole society through operation of the criminal law" (citing 505 US, at 850, )) Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem" Ante, at 1634[7] Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D & E procedure Ante, at 1633-1634[8] The solution the Court approves, then, is not to require doctors to *1649 inform women, accurately and adequately, of the different procedures and their attendant risks Cf 505 US, at 873, (plurality opinion) ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning") Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety[9] This way of thinking reflects ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited Compare, eg, Muller v Oregon, 208 US 412, 28 S Ct 324, 52 L Ed 551 ; Bradwell v State, 16 Wall 130, 21 L Ed 442 (Bradley, J, concurring) ("Man is, or should be, woman's protector and defender The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother"), with United States v Virginia, 518 US 515, 533, 542, n 12, 116 S Ct 2264, 135 L Ed 2d 735 (State may not rely on "overbroad generalizations" about the "talents, capacities, or preferences" of women; "[s]uch judgments have impeded women's progress toward full citizenship stature throughout our Nation's history"); Califano v Goldfarb, 430 US 199, 97 S Ct 1021, 51 L Ed 2d 270 Though today's majority may regard women's feelings on the matter as "self-evident," ante, at 1634, this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped on her own conception of her spiritual imperatives and her place in society" 505 US, See also id, (plurality opinion) ("[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it"); B In cases on a "woman's liberty to determine whether to [continue] her pregnancy," this Court has identified viability as a critical consideration See 505 US, at 869-870, (plurality opinion) "[T]here is no line [more workable] *1650 than viability," the Court explained in for viability is "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child" Id, Today, the Court blurs that line, maintaining that "[t]he Act [legitimately] appl[ies] both previability and postviability because a fetus is a living organism while within the womb, whether or not it is viable outside the womb" Ante, at 17 Instead of drawing the line at viability, the Court refers to Congress' purpose to differentiate "abortion and infanticide" based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed See ante, at 1633-1634 (quoting Congressional Findings (14)(G), in notes following 18 USC 1531 ( ed, Supp IV), p 769) One wonders how long a line that saves no fetus from destruction will hold in face of the Court's "moral concerns" See ; cf ante, at 17 (noting that "[i]n this litigation" the Attorney General "does not dispute that the Act would impose an undue burden if it covered standard D & E") The Court's hostility to the right Roe and secured is not concealed Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor" Ante, at 15, 1631, 1632, 1635, 1636 A fetus is described as an "unborn child," and as a "baby," ante, at 10, 12-13; second-trimester, previability abortions are referred to as "late-term," ante, at 1632; and the reasoned medical judgments of highly trained doctors are dismissed as "preferences" motivated by "mere convenience," ante, at 10, 1638 Instead of the heightened scrutiny we have previously applied, the Court determines that a "rational" ground is enough to uphold the Act, ante, at 1633-1634, 1638 And, most troubling, 's principles, confirming the continuing vitality of "the essential holding of Roe," are merely "assume[d]" for the moment, ante, at 16, 1635, rather than "retained" or "reaffirmed," 505 US, III A The Court further confuses our jurisprudence when it declares that "facial attacks" are not permissible in "these circumstances," ie, where medical uncertainty exists Ante, at 1638; see ibid ("In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack") This holding is perplexing given that, in materially identical circumstances we held that a statute lacking a health exception was unconstitutional on its face 530 US, at 930, 120 S Ct 2597; see id, 120 S Ct 2597 (in facial challenge, law held unconstitutional because "significant body of medical opinion believes [the] procedure may bring with it greater safety for some patients" ) See also Sabri v United States, 541 US 600, 124 S Ct 1941, 158 L Ed 2d 891 ; Fallon, Making Sense of Overbreadth, 100 Yale LJ 853, 859, n 29 *1651 have involved facial attacks on state statutes, and the Court, whether accepting or rejecting the challenges on the merits, has typically accepted this framing of the question presented") Accord Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv LRev 1321, 1356 ; Dorf, Facial Challenges to State and Federal Statutes, 46 Stan LRev 235, 271-276 (1994) Without attempting to distinguish and earlier decisions, the majority asserts that the Act survives review because respondents have not shown that the ban on intact D & E would be unconstitutional "in a large fraction of relevant cases" Ante, at 1639 (citing 505 US, at 895, ) But makes clear that, in determining whether any restriction poses an undue burden on a "large fraction" of women, the relevant class is not "all women," nor "all pregnant women," nor even all women "seeking abortions" 505 US, at 895, Rather, a provision restricting access to abortion, "must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction," ibid Thus the absence of a health exception burdens all women for whom it is relevant—women who, in the judgment of their doctors, require an intact D & E because other procedures would place their health at risk[10] Cf 530 US, at 934, 120 S Ct 2597 (accepting the "relative rarity" of medically indicated intact D & Es as true but not "highly relevant"—for "the health exception question is whether protecting women's health requires an exception for those infrequent occasions"); 546 US, at 328, 126 S Ct 961 (facial challenge entertained where "[i]n some very small percentage of cases women need immediate abortions to avert serious, and often irreversible damage to their health") It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases B If there is anything at all redemptive to be said of today's opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act "The Act is open," the Court states, "to a proper as-applied challenge in a discrete case" Ante, at 1639; see ante, at 1639 ("The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained") But the Court offers no clue on what a "proper" lawsuit might look like See ante, at 1638-1639 Nor does the Court explain why the injunctions ordered by the District Courts should not remain in place, trimmed only to exclude instances in which another procedure would safeguard a woman's health at least equally well Surely the Court cannot mean that no suit may be brought until a woman's health is immediately jeopardized by the ban on intact D & E A woman "suffer[ing] from medical complications," ante, at 1639, needs access to the *1652 medical procedure at once and cannot wait for the judicial process to unfold See 546 US, at 328, 126 S Ct 961 The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions In such a second round, the Court suggests, the challengers could succeed upon demonstrating that "in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used" Ante, at 1638 One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D & E prohibition The Court envisions that in an as-applied challenge, "the nature of the medical risk can be better quantified and balanced" Ibid But it should not escape notice that the record already includes hundreds and hundreds of pages of testimony identifying "discrete and well-defined instances" in which recourse to an intact D & E would better protect the health of women with particular conditions See Record evidence also documents that medical exigencies, unpredictable in advance, may indicate to a well-trained doctor that intact D & E is the safest procedure See ibid In light of this evidence, our unanimous decision just one year ago in counsels against reversal See 546 US, at 331, 126 S Ct 961 (remanding for reconsideration of the remedy for the absence of a health exception, suggesting that an injunction prohibiting unconstitutional applications might suffice) The Court's allowance only of an "as-applied challenge in a discrete case," ante, at 1639—jeopardizes women's health and places doctors in an untenable position Even if courts were able to carve-out exceptions through piecemeal litigation for "discrete and well-defined instances," ante, at 1638, women whose circumstances have not been anticipated by prior litigation could well be left unprotected In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients The Court is thus gravely mistaken to conclude that narrow as-applied challenges are "the proper manner to protect the health of the woman" Cf ibid IV As the Court wrote in "overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law" 505 US, at 865, "[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable" Id, See also id, ("[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question") Though today's opinion does not go so far as to discard Roe or the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of "the rule of law" and the "principles of stare decisis" Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman's health See at 1643, n 4 Although Congress' findings could not withstand the crucible of trial, the Court *1653 defers to the legislative override of our Constitution-based rulings See A decision so at odds with our jurisprudence should not have staying power In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational The Court's defense of the statute provides no saving explanation In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court— and with increasing comprehension of its centrality to women's lives See at 1641, n 2; at 1643, n 4 When "a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue" 530 US, at 952, 120 S Ct 2597 (GINSBURG, J, concurring) (Posner, C J, dissenting)) * * * For the reasons stated, I dissent from the Court's disposition and would affirm the judgments before us for review

Justice Stevens

majority

McIntyre v. Ohio Elections Comm'n

1995-04-19

https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/

https://www.courtlistener.com/api/rest/v3/clusters/117921/

1994-045

The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a "law . . . abridging the freedom of speech" within the meaning of the First Amendment.[1] *337 I On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre's opposition to the levy.[2] There is no suggestion that the text of her message was false, misleading, or libelous. She had composed and printed it on her home computer and had paid a professional printer to make additional copies. Some of the handbills identified her as the author; others merely purported to express the views of "CONCERNED PARENTS AND TAX PAYERS." Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently. *338 While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills. The proposed school levy was defeated at the next two elections, but it finally passed on its third try in November 1988. Five months later, the same school official filed a complaint with the Ohio Elections Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated ง 3599.09(A) of the Ohio Code.[3] The commission agreed and imposed a fine of $100. *339 The Franklin County Court of Common Pleas reversed. Finding that Mrs. McIntyre did not "mislead the public nor act in a surreptitious manner," the court concluded that the statute was unconstitutional as applied to her conduct. App. to Pet. for Cert. A-34 to A-35. The Ohio Court of Appeals, by a divided vote, reinstated the fine. Notwithstanding doubts about the continuing validity of a 1922 decision of the Ohio Supreme Court upholding the statutory predecessor of ง 3599.09(A), the majority considered itself bound by that precedent. Id., at A-20 to A-21, citing State v. Babst, 104 Ohio St. 167, 135 N.E. 525 (1922). The dissenting judge thought that our intervening decision in Talley v. California, 362 U.S. 60 (1960), in which we invalidated a city ordinance prohibiting all anonymous leaf letting, compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality. App. to Pet. for Cert. A-30 to A-31. The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre's case from Talley on the ground that ง 3599.09(A) "has as its purpose the identification of persons who distribute materials containing false statements." 67 Ohio St. 3d 391, 394, 618 N.E.2d 152, 154 *340 (1993). The Ohio court believed that such a law should be upheld if the burdens imposed on the First Amendment rights of voters are "`reasonable ` " and "`nondiscriminatory. ` " Id., at 396, 618 N.E.2d, at 155, quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Under that standard, the majority concluded that the statute was plainly valid: "The minor requirement imposed by R.C. 3599.09 that those persons producing campaign literature identify themselves as the source thereof neither impacts the content of their message nor significantly burdens their ability to have it disseminated. This burden is more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising. Not only are such interests sufficient to overcome the minor burden placed upon such persons, these interests were specifically acknowledged in [First Nat. Bank of Boston v.] Bellotti [, 435 U.S. 765 (1978),] to be regulations of the sort which would survive constitutional scrutiny." 67 Ohio St. 3d, at 396, 618 N.E.2d, at 155-156. In dissent, Justice Wright argued that the statute should be tested under a more severe standard because of its significant effect "on the ability of individual citizens to freely express their views in writing on political issues." Id., at 398, 618 N.E.2d, at 156-157. He concluded that ง 3599.09(A) "is not narrowly tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre." Id., at 401, 618 N.E.2d, at 159. Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S. *341 1108 (1994), reflects our agreement with his appraisal of the importance of the question presented. II Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The State does not suggest that all anonymous publications are pernicious or that a statute totally excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment. "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Talley v. California, 362 U. S., at 64. Great works of literature have frequently been produced by authors writing under assumed names.[4] Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, *342 by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.[5] Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. The freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U.S. 60. Writing for the Court, Justice Black noted that "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Id., at 64. Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. Id., at 64-65. On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of *343 political rhetoric, where "the identity of the speaker is an important component of many attempts to persuade," City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (footnote omitted), the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes.[6] This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation. III California had defended the Los Angeles ordinance at issue in Talley as a law "aimed at providing a way to identify those responsible for fraud, false advertising and libel." 362 U.S., at 64. We rejected that argument because nothing in the text or legislative history of the ordinance limited its application to those evils.[7]Ibid. We then made clear that *344 we did "not pass on the validity of an ordinance limited to prevent these or any other supposed evils." Ibid. The Ohio statute likewise contains no language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify ง 3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when there is no hint of falsity or libel. Ohio's statute does, however, contain a different limitation: It applies only to unsigned documents designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all anonymous hand billing "in any place under any circumstances." Id., at 60-61. For that reason, Ohio correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide whether and to what extent the First Amendment's protection of anonymity encompasses documents intended to influence the electoral process. Ohio places its principal reliance on cases such as Anderson v. Celebrezze, 460 U.S. 780 (1983); Storer v. Brown, 415 U.S. 724 (1974); and Burdick v. Takushi, 504 U.S. 428 (1992), in which we reviewed election code provisions governing the voting process itself. See Anderson, supra (filing deadlines); Storer, supra (ballot access); Burdick, supra (write-in voting); see also Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) (eligibility of independent voters to vote in party primaries). In those cases we refused to adopt "any *345 `litmus-paper test' that will separate valid from invalid restrictions." Anderson, 460 U. S., at 789, quoting Storer, 415 U. S., at 730. Instead, we pursued an analytical process comparable to that used by courts "in ordinary litigation": We considered the relative interests of the State and the injured voters, and we evaluated the extent to which the State's interests necessitated the contested restrictions. Anderson, 460 U. S., at 789. Applying similar reasoning in this case, the Ohio Supreme Court upheld ง 3599.09(A) as a "reasonable " and "nondiscriminatory " burden on the rights of voters. 67 Ohio St. 3d, at 396, 618 N.E.2d, at 155, quoting Anderson, 460 U. S., at 788. The "ordinary litigation" test does not apply here. Unlike the statutory provisions challenged in Storer and Anderson, ง 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of differing viewpoints,[8] it is a direct regulation of the content of speech. Every written document covered by the statute must contain "the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor." Ohio Rev. Code Ann. ง 3599.09(A) (1988). Furthermore, the category of covered documents is defined by their contentโ€”only those publications containing speech designed to influence the voters in an election need bear the required markings.[9]Ibid. Consequently, we are not faced with an ordinary election restriction; *346 this case "involves a limitation on political expression subject to exacting scrutiny." Meyer v. Grant, 486 U.S. 414, 420 (1988).[10] Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment: "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order `to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States, 354 U.S. 476, 484 (1957). Although First Amendment protections are not confined to `the exposition of ideas,' Winters v. New York, 333 U.S. 507, 510 (1948), `there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs,. . . of course includ[ing] discussions of candidates . . . .' Mills v. Alabama, 384 U.S. 214, 218 (1966). This no more than reflects our `profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,' New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry *347 to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), `it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.' " Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (per curiam) . Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776-777 (1978) (speech on income tax referendum "is at the heart of the First Amendment's protection"). Indeed, the speech in which Mrs. McIntyre engagedโ€”handing out leaflets in the advocacy of a politically controversial viewpointโ€”is the essence of First Amendment expression. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); Lovell v. City of Griffin, 303 U.S. 444 (1938). That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre's expression: Urgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed. See Terminiello v. Chicago, 337 U.S. 1, 4 (1949). No form of speech is entitled to greater constitutional protection than Mrs. McIntyre's. When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., Bellotti , 435 U. S., at 786. Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than is appropriate in a case of this kind. *348 IV Nevertheless, the State argues that, even under the strictest standard of review, the disclosure requirement in ง 3599.09(A) is justified by two important and legitimate state interests. Ohio judges its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information to be sufficiently compelling to justify the anonymous speech ban. These two interests necessarily overlap to some extent, but it is useful to discuss them separately. Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude.[11] We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader's ability to evaluate the *349 document's message. Thus, Ohio's informational interest is plainly insufficient to support the constitutionality of its disclosure requirement. The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio's submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on ง 3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. งง 3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue-driven ballot measures.[12] Thus, *350 Ohio's prohibition of anonymous leaflets plainly is not its principal weapon against fraud.[13] Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent *351 to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify ง 3599.09(A)'s extremely broad prohibition. As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources.[14] It applies not only to elections of public officers, but also to *352 ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage.[15] It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance.[16] It applies no matter what the character or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the author's name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the Election Code. Nor has the State explained why it can *353 more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leaf letting at issue here. V Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978), and Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) , amply support the constitutionality of its disclosure requirement. Neither case is controlling: The former concerned the scope of First Amendment protection afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature. In Bellotti, we reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law that prohibited corporate expenditures designed to influence the vote on referendum proposals. 435 U.S. 765. The Massachusetts court had held that the First Amendment protects corporate speech only if its message pertains directly to the business interests of the corporation. Id., at 771-772. Consistently with our holding today, we noted that the "inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id., at 777. We also made it perfectly clear that we were not deciding whether the First Amendment's protection of corporate speech is coextensive with the protection it affords to individuals.[17] Accordingly, although we commented in dicta *354 on the prophylactic effect of requiring identification of the source of corporate advertising,[18] that footnote did not necessarily apply to independent communications by an individual like Mrs. McIntyre. Our reference in the Bellotti footnote to the "prophylactic effect" of disclosure requirements cited a portion of our earlier opinion in Buckley, in which we stressed the importance of providing "the electorate with information `as to where political campaign money comes from and how it is spent by the candidate.' " 424 U.S., at 66. We observed that the "sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office." Id., at 67. Those comments concerned contributions to the candidate or expenditures authorized by the candidate or his responsible agent. They had no reference to the kind of independent activity pursued by Mrs. McIntyre. Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case. *355 True, in another portion of the Buckley opinion we expressed approval of a requirement that even "independent expenditures" in excess of a threshold level be reported to the Federal Election Commission. Id., at 75-76. But that requirement entailed nothing more than an identification to the Commission of the amount and use of money expended in support of a candidate. See id., at 157-159, 160 (reproducing relevant portions of the statute[19] ). Though such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled selfidentification on all election-related writings. A written election-related documentโ€”particularly a leafletโ€”is often a personally crafted statement of a political viewpoint. Mrs. McIntyre's handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender's political views. Nonetheless, even though money may "talk," its speech is less specific, less personal, and less provocative than a handbillโ€”and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation. *356 Not only is the Ohio statute's infringement on speech more intrusive than the Buckley disclosure requirement, but it rests on different and less powerful state interests. The Federal Election Campaign Act of 1971, at issue in Buckley, regulates only candidate elections, not referenda or other issue-based ballot measures; and we construed "independent expenditures" to mean only those expenditures that "expressly advocate the election or defeat of a clearly identified candidate." Id., at 80. In candidate elections, the Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. Disclosure of expenditures lessens the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office. Curriers of favor will be deterred by the knowledge that all expenditures will be scrutinized by the Federal Election Commission and by the public for just this sort of abuse.[20] Moreover, the federal Act contains numerous legitimate disclosure requirements for campaign organizations; the similar requirements for independent expenditures serve to ensure that a campaign organization will not seek to evade disclosure by routing its expenditures through individual supporters. See Buckley, 424 U. S., at 76. In short, although Buckley may permit a more narrowly drawn statute, it surely is not authority for upholding Ohio's open-ended provision.[21] *357 VI Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliationโ€”and their ideas from suppressionโ€”at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Abrams v. United States, 250 U.S. 616, 630-631 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the case before us. The judgment of the Ohio Supreme Court is reversed. It is so ordered.

The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a "law abridging the freedom of speech" within the meaning of the First Amendment.[1] *337 I On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre's opposition to the levy.[2] There is no suggestion that the text of her message was false, misleading, or libelous. She had composed and printed it on her home computer and had paid a professional printer to make additional copies. Some of the handbills identified her as the author; others merely purported to express the views of "CONCERNED PARENTS AND TAX PAYERS." Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently. *338 While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills. The proposed school levy was defeated at the next two elections, but it finally passed on its third try in November 1988. Five months later, the same school official filed a complaint with the Ohio Elections Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated ง 3599.09(A) of the Ohio Code.[3] The commission agreed and imposed a fine of $100. *339 The Franklin County Court of Common Pleas reversed. Finding that Mrs. McIntyre did not "mislead the public nor act in a surreptitious manner," the court concluded that the statute was unconstitutional as applied to her conduct. App. to Pet. for Cert. A-3 to A-35. The Ohio Court of Appeals, by a divided vote, reinstated the fine. Notwithstanding doubts about the continuing validity of a decision of the Ohio Supreme Court upholding the statutory predecessor of ง 3599.09(A), the majority considered itself bound by that precedent. at A-20 to A-21, citing The dissenting judge thought that our intervening decision in in which we invalidated a city ordinance prohibiting all anonymous leaf letting, compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality. App. to Pet. for Cert. A-30 to A-31. The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre's case from Talley on the ground that ง 3599.09(A) "has as its purpose the identification of persons who distribute materials containing false statements." The Ohio court believed that such a law should be upheld if the burdens imposed on the First Amendment rights of voters are "`reasonable ` " and "`nondiscriminatory. ` " quoting Under that standard, the majority concluded that the statute was plainly valid: "The minor requirement imposed by R.C. 3599.09 that those persons producing campaign literature identify themselves as the source thereof neither impacts the content of their message nor significantly burdens their ability to have it disseminated. This burden is more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising. Not only are such interests sufficient to overcome the minor burden placed upon such persons, these interests were specifically acknowledged in [First Nat. Bank of Boston v.] Bellotti [,] to be regulations of the sort which would survive constitutional scrutiny." 67 Ohio St. 3d, -1. In dissent, Justice Wright argued that the statute should be tested under a more severe standard because of its significant effect "on the ability of individual citizens to freely express their views in writing on political issues." -157. He concluded that ง 3599.09(A) "is not narrowly tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre." Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, U. S. *31 1108 reflects our agreement with his appraisal of the importance of the question presented. II Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The State does not suggest that all anonymous publications are pernicious or that a statute totally excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment. "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Great works of literature have frequently been produced by authors writing under assumed names.[] Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, *32 by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.[5] Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. The freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. Writing for the Court, Justice Black noted that "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. -65. On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of *33 political rhetoric, where "the identity of the speaker is an important component of many attempts to persuade," City of the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes.[6] This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation. III had defended the Los Angeles ordinance at issue in Talley as a law "aimed at providing a way to identify those responsible for fraud, false advertising and libel." 362 U.S., We rejected that argument because nothing in the text or legislative history of the ordinance limited its application to those evils.[7] We then made clear that *3 we did "not pass on the validity of an ordinance limited to prevent these or any other supposed evils." The Ohio statute likewise contains no language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify ง 3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when there is no hint of falsity or libel. Ohio's statute does, however, contain a different limitation: It applies only to unsigned documents designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all anonymous hand billing "in any place under any circumstances." For that reason, Ohio correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide whether and to what extent the First Amendment's protection of anonymity encompasses documents intended to influence the electoral process. Ohio places its principal reliance on cases such as ; ; and in which we reviewed election code provisions governing the voting process itself. See ; ; ; see also In those cases we refused to adopt "any *35 `litmus-paper test' that will separate valid from invalid restrictions." quoting Instead, we pursued an analytical process comparable to that used by courts "in ordinary litigation": We considered the relative interests of the State and the injured voters, and we evaluated the extent to which the State's interests necessitated the contested restrictions. Applying similar reasoning in this case, the Ohio Supreme Court upheld ง 3599.09(A) as a "reasonable " and "nondiscriminatory " burden on the rights of 67 Ohio St. 3d, quoting 60 U. S., at The "ordinary litigation" test does not apply here. Unlike the statutory provisions challenged in and ง 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of differing viewpoints,[8] it is a direct regulation of the content of speech. Every written document covered by the statute must contain "the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor." Ohio Rev. Code Ann. ง 3599.09(A) Furthermore, the category of covered documents is defined by their contentโ€”only those publications containing speech designed to influence the voters in an election need bear the required markings.[9] Consequently, we are not faced with an ordinary election restriction; *36 this case "involves a limitation on political expression subject to exacting scrutiny."[10] Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment: "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order `to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Although First Amendment protections are not confined to `the exposition of ideas,' `there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs,. of course includ[ing] discussions of candidates' This no more than reflects our `profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,' New York Times In a republic where the people are sovereign, the ability of the citizenry *37 to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot U.S. 265, `it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.' " Of course, core political speech need not center on a candidate for office. The principles enunciated in extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Indeed, the speech in which Mrs. McIntyre engagedโ€”handing out leaflets in the advocacy of a politically controversial viewpointโ€”is the essence of First Amendment expression. See International Soc. for Krishna Consciousness, ; That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre's expression: Urgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed. See No form of speech is entitled to greater constitutional protection than Mrs. McIntyre's. When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., Bellotti 35 U. S., at 786. Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than is appropriate in a case of this kind. *38 IV Nevertheless, the State argues that, even under the strictest standard of review, the disclosure requirement in ง 3599.09(A) is justified by two important and legitimate state interests. Ohio judges its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information to be sufficiently compelling to justify the anonymous speech ban. These two interests necessarily overlap to some extent, but it is useful to discuss them separately. Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude.[11] We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing 18 U.S. 21 The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader's ability to evaluate the *39 document's message. Thus, Ohio's informational interest is plainly insufficient to support the constitutionality of its disclosure requirement. The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio's submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on ง 3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. งง 3599.09.1(B), 3599.09.2(B) These regulations apply both to candidate elections and to issue-driven ballot measures.[12] Thus, *350 Ohio's prohibition of anonymous leaflets plainly is not its principal weapon against fraud.[13] Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent *351 to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify ง 3599.09(A)'s extremely broad prohibition. As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources.[1] It applies not only to elections of public officers, but also to *352 ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage.[15] It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance.[16] It applies no matter what the character or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the author's name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the Election Code. Nor has the State explained why it can *353 more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leaf letting at issue here. V Finally, Ohio vigorously argues that our opinions in First Nat. Bank of and amply support the constitutionality of its disclosure requirement. Neither case is controlling: The former concerned the scope of First Amendment protection afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature. In Bellotti, we reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law that prohibited corporate expenditures designed to influence the vote on referendum proposals. The Massachusetts court had held that the First Amendment protects corporate speech only if its message pertains directly to the business interests of the corporation. Consistently with our holding today, we noted that the "inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." We also made it perfectly clear that we were not deciding whether the First Amendment's protection of corporate speech is coextensive with the protection it affords to individuals.[17] Accordingly, although we commented in dicta *35 on the prophylactic effect of requiring identification of the source of corporate advertising,[18] that footnote did not necessarily apply to independent communications by an individual like Mrs. McIntyre. Our reference in the Bellotti footnote to the "prophylactic effect" of disclosure requirements cited a portion of our earlier opinion in in which we stressed the importance of providing "the electorate with information `as to where political campaign money comes from and how it is spent by the candidate.' " 2 U.S., at 66. We observed that the "sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office." Those comments concerned contributions to the candidate or expenditures authorized by the candidate or his responsible agent. They had no reference to the kind of independent activity pursued by Mrs. McIntyre. Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case. *355 True, in another portion of the opinion we expressed approval of a requirement that even "independent expenditures" in excess of a threshold level be reported to the Federal Election Commission. But that requirement entailed nothing more than an identification to the Commission of the amount and use of money expended in support of a candidate. See Though such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled selfidentification on all election-related writings. A written election-related documentโ€”particularly a leafletโ€”is often a personally crafted statement of a political viewpoint. Mrs. McIntyre's handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender's political views. Nonetheless, even though money may "talk," its speech is less specific, less personal, and less provocative than a handbillโ€”and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation. *3 Not only is the Ohio statute's infringement on speech more intrusive than the disclosure requirement, but it rests on different and less powerful state interests. The Federal Election Campaign Act of 1971, at issue in regulates only candidate elections, not referenda or other issue-based ballot measures; and we construed "independent expenditures" to mean only those expenditures that "expressly advocate the election or defeat of a clearly identified candidate." In candidate elections, the Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. Disclosure of expenditures lessens the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office. Curriers of favor will be deterred by the knowledge that all expenditures will be scrutinized by the Federal Election Commission and by the public for just this sort of abuse.[20] Moreover, the federal Act contains numerous legitimate disclosure requirements for campaign organizations; the similar requirements for independent expenditures serve to ensure that a campaign organization will not seek to evade disclosure by routing its expenditures through individual supporters. See 2 U. S., at 76. In short, although may permit a more narrowly drawn statute, it surely is not authority for upholding Ohio's open-ended provision.[21] *357 VI Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3- (R. McCallum ed. 197). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliationโ€”and their ideas from suppressionโ€”at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the case before us. The judgment of the Ohio Supreme Court is reversed. It is so ordered.

Justice Ginsburg

concurring

McIntyre v. Ohio Elections Comm'n

1995-04-19

https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/

https://www.courtlistener.com/api/rest/v3/clusters/117921/

1994-045

The dissent is stirring in its appreciation of democratic values. But I do not see the Court's opinion as unguided by "bedrock principle," tradition, or our case law. See post, at 375-378, 378-380. Margaret McIntyre's case, it seems to me, bears a marked resemblance to Margaret Gilleo's case[1] and Mary Grace's.[2] All three decisions, I believe, are sound, and hardly sensational, applications of our First Amendment jurisprudence. In for a calf is not always in for a cow. The Court's decision finds unnecessary, over intrusive, and inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do not thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity. Appropriately leaving open matters not presented by McIntyre's handbills, the Court recognizes that a State's interest in protecting an election process "might justify a more limited identification requirement." Ante, at 353. But the Court has convincingly explained why Ohio lacks "cause for inhibiting the leaf letting at issue here." Ibid. Justice Thomas, concurring in the judgment. I agree with the majority's conclusion that Ohio's election law, Ohio Rev. Code Ann. ง 3599.09(A) (1988), is inconsistent with the First Amendment. I would apply, however, a different *359 methodology to this case. Instead of asking whether "an honorable tradition" of anonymous speech has existed throughout American history, or what the "value" of anonymous speech might be, we should determine whether the phrase "freedom of speech, or of the press," as originally understood, protected anonymous political leaf letting. I believe that it did. I The First Amendment states that the government "shall make no law . . . abridging the freedom of speech, or of the press." U. S. Const., Amdt. 1. When interpreting the Free Speech and Press Clauses, we must be guided by their original meaning, for "[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now." South Carolina v. United States, 199 U.S. 437, 448 (1905). We have long recognized that the meaning of the Constitution "must necessarily depend on the words of the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions . . . in the several states." Rhode Island v. Massachusetts, 12 Pet. 657, 721 (1838). See also INS v. Chadha, 462 U.S. 919, 959 (1983). We should seek the original understanding when we interpret the Speech and Press Clauses, just as we do when we read the Religion Clauses of the First Amendment. When the Framers did not discuss the precise question at issue, we have turned to "what history reveals was the contemporaneous understanding of [the Establishment Clause's] guarantees." Lynch v. Donnelly, 465 U.S. 668, 673 (1984). "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." School Dist. of Abington Township v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring); see also Lee v. Weisman, 505 U.S. 577, 632-633 (1992) (Scalia, J., dissenting). *360 II Unfortunately, we have no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must focus on the practices and beliefs held by the Founders concerning anonymous political articles and pamphlets. As an initial matter, we can safely maintain that the leaflets at issue in this case implicate the freedom of the press. When the Framers thought of the press, they did not envision the large, corporate newspaper and television establishments of our modern world. Instead, they employed the term "the press" to refer to the many independent printers who circulated small newspapers or published writers' pamphlets for a fee. See generally B. Bailyn & J. Hench, The Press & the American Revolution (1980); L. Levy, Emergence of a Free Press (1985); B. Bailyn, The Ideological Origins of the American Revolution (1967). "It was in this formโ€”as pamphletsโ€”that much of the most important and characteristic writing of the American Revolution occurred." 1 B. Bailyn, Pamphlets of the American Revolution 3 (1965). This practice continued during the struggle for ratification. See, e. g., Pamphlets on the Constitution of the United States (P. Ford ed. 1888). Regardless of whether one designates the right involved here as one of press or one of speech, however, it makes little difference in terms of our analysis, which seeks to determine only whether the First Amendment, as originally understood, protects anonymous writing. There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of "Publius," are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution. Of course, the simple fact that the Framers engaged in certain conduct does not necessarily prove that they forbade its prohibition by the government. See post, at 373 *361 (Scalia, J., dissenting). In this case, however, the historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the "freedom of the press." For example, the earliest and most famous American experience with freedom of the press, the 1735 Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter Zenger, who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger himself for seditious libel. See J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 9-19 (S. Katz ed. 1972). Although the case set the Colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind. During the Revolutionary and Ratification periods, the Framers' understanding of the relationship between anonymity and freedom of the press became more explicit. In 1779, for example, the Continental Congress attempted to discover the identity of an anonymous article in the Pennsylvania Packet signed by the name "Leonidas." Leonidas, who actually was Dr. Benjamin Rush, had attacked the Members of Congress for causing inflation throughout the States and for engaging in embezzelment and fraud. 13 Letters of Delegates to Congress 1774-1789, p. 141, n. 1 (G. Gawalt & R. Gephart eds. 1986). Elbridge Gerry, a delegate from Massachusetts, moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas. Several Members of Congress then rose to oppose Gerry's motion on the ground that it invaded the freedom of the press. Merriweather Smith of Virginia rose, quoted from *362 the offending article with approval, and then finished with a declaration that "[w]hen the liberty of the Press shall be restrained . . . the liberties of the People will be at an end." Henry Laurens, Notes of Debates, July 3, 1779, id. , at 139. Supporting Smith, John Penn of North Carolina argued that the writer "no doubt had good designs, " and that "[t]he liberty of the Press ought not to be restrained." Ibid. In the end, these arguments persuaded the assembled delegates, who "sat mute" in response to Gerry's motion. Id. , at 141. Neither the printer nor Dr. Rush ever appeared before Congress to answer for their publication. D. Teeter, Press Freedom and the Public Printing: Pennsylvania, 1775-83, 45 Journalism Q. 445, 451 (1968). At least one of the state legislatures shared Congress' view that the freedom of the press protected anonymous writing. Also in 1779, the upper house of the New Jersey State Legislature attempted to punish the author of a satirical attack on the Governor and the College of New Jersey (now Princeton) who had signed his work "Cincinnatus." R. Hixson, Isaac Collins: A Quaker Printer in 18th Century America 95 (1968). Attempting to enforce the crime of seditious libel, the State Legislative Council ordered Isaac Collinsโ€”the printer and editor of the newspaper in which the article had appearedโ€”to reveal the author's identity. Refusing, Collins declared: "`Were I to comply . . . I conceive I should betray the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.' " Id. , at 96. Apparently, the State Assembly agreed that anonymity was protected by the freedom of the press, as it voted to support the editor and publisher by frustrating the council's orders. Id. , at 95. By 1784, the same Governor of New Jersey, William Livingston, was at work writing anonymous articles that defended the right to publish anonymously as part of the freedom of the press. Under the pseudonym "Scipio," *363 Livingston wrote several articles attacking the legislature's failure to lower taxes, and he accused a state officer of stealing or losing state funds during the British invasion of New Jersey. Id. , at 107-109; Scipio, Letter to the Printer, Feb. 24, 1784, The New-Jersey Gazette. Responding to the allegations, the officer called upon Scipio "to avow your publication, give up your real name." S. Tucker, To Scipio, Mar. 2, 1784, The New-Jersey Gazette. Livingston replied with a four-part series defending "the Liberty of the Press." Although Livingston at first defended anonymity because it encouraged authors to discuss politics without fear of reprisal, he ultimately invoked the liberty of the press as the guardian for anonymous political writing. "I hope [Tucker] is not seriously bent upon a total subversion of our political system," Scipio wrote. "And pray may not a man, in a free country, convey thro' the press his sentiments on publick grievances. . . without being obliged to send a certified copy of the baptismal register to prove his name." Scipio, On the Liberty of the Press IV, Apr. 26, 1784, The New-Jersey Gazette. To be sure, there was some controversy among newspaper editors over publishing anonymous articles and pamphlets. But this controversy was resolved in a manner that indicates that the freedom of the press protected an author's anonymity. The tempest began when a Federalist, writing anonymously himself, expressed fear that "emissaries" of "foreign enemies" would attempt to scuttle the Constitution by "fill[ing] the press with objections" against the proposal. Boston Independent Chronicle, Oct. 4, 1787, in 13 Documentary History of the Ratification of the Constitution 315 (J. Kaminski & G. Saladino eds. 1981) (hereinafter Documentary History). He called upon printers to refrain from publishing when the author "chooses to remain concealed." Ibid. Benjamin Russell, the editor of the prominent Federalist newspaper the Massachusetts Centinel, immediately adopted a policy of refusing to publish Anti-Federalist pieces unless the *364 author provided his identity to be "handed to the publick, if required." Massachusetts Centinel, Oct. 10, 1787, id., at 312, 315-316. A few days later, the Massachusetts Gazette announced that it would emulate the example set by the Massachusetts Centinel. Massachusetts Gazette, Oct. 16, 1787, id., at 317. In the same issue, the Gazette carried an article claiming that requiring an anonymous writer to leave his name with the printer, so that anyone who wished to know his identity could be informed, "appears perfectly reasonable, and is perfectly consistent with the liberty of the press." A Citizen, Massachusetts Gazette, Oct. 16, 1787, id., at 316. Federalists expressed similar thoughts in Philadelphia. See A Philadelphia Mechanic, Philadelphia Independent Gazetteer, Oct. 29, 1787, id., at 318-319; Galba, Philadelphia Independent Gazetteer, Oct. 31, 1787, id., at 319. The Jewel, Philadelphia Independent Gazetteer, Nov. 2, 1787, id., at 320. Ordinarily, the fact that some founding-era editors as a matter of policy decided not to publish anonymous articles would seem to shed little light upon what the Framers thought the government could do. The widespread criticism raised by the Anti-Federalists, however, who were the driving force behind the demand for a Bill of Rights, indicates that they believed the freedom of the press to include the right to author anonymous political articles and pamphlets.[1] That most other Americans shared this understanding is reflected in the Federalists' hasty retreat before the withering criticism of their assault on the liberty of the press. Opposition to Russell's declaration centered in Philadelphia. Three Philadelphia papers published the "Citizen" piece that had run in the Massachusetts Gazette. Id., at *365 318-320.[2] In response, one of the leading Anti-Federalist writers, the "Federal Farmer," attacked Russell's policy: "What can be the views of those gentlemen in Boston, who countenanced the Printers in shutting up the press against a fair and free investigation of this important system in the usual way?" Letters From the Federal Farmer No. 5, Oct. 13, 1787, in 2 The Complete Anti-Federalist 254 (H. Storing ed. 1981). Another Anti-Federalist, "Philadelphiensis," also launched a substantial attack on Russell and his defenders for undermining the freedom of the press. "In this desperate situation of affairs . . . the friends of this despotic scheme of government, were driven to the last and only alternative from which there was any probability of success; namely, the abolition of the freedom of the Press. " Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, 3 id. , at 102. In Philadelphiensis' eyes, Federalist attempts to suppress the Anti-Federalist press by requiring the disclosure of authors' identities only foreshadowed the oppression permitted by the new Constitution. "Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution." Id. , at 103. According to Philadelphiensis, Federalist policies had already ruined freedom in Massachusetts: "In Boston the liberty of the press is now completely abolished; and hence all other privileges and rights of the people will in a short time be destroyed." Id. , at 104. Not limited to Philadelphia, the Anti-Federalist attack was repeated widely throughout the States. In New York, one writer exclaimed that the Federalist effort to suppress anonymity *366 would "reverse the important doctrine of the freedom of the press, " whose "truth" was "universally acknowledged." Detector, New York Journal, Oct. 25, 1787, in 13 Documentary History 318. "Detector" proceeded to proclaim that Russell's policy was "the introduction of this first trait of slavery into your country!" Ibid. Responding to the Federalist editorial policy, a Rhode Island AntiFederalist wrote: "The Liberty of the Press, or the Liberty which every Person in the United States at present enjoys. . . is a Privilege of infinite Importance . . . for which . . . we have fought and bled," and that the attempt by "our aristocratical Gentry, to have every Person's Name published who should write against the proposed Federal Constitution, has given many of us a just Alarm." Argus, Providence United States Chronicle, Nov. 8, 1787, id. , at 320-321. Edward Powars, editor of the Anti-Federalist Boston American Herald, proclaimed that his pages would remain "free and open to all parties." Boston American Herald, Oct. 15, 1787, id., at 316. In the Boston Independent Chronicle of Oct. 18, 1787, "Solon" accused Russell of attempting to undermine a "freedom and independence of sentiments " which "should never be checked in a free country" and was "so essential to the existance of free Governments." Id. , at 313. The controversy over Federalist attempts to prohibit anonymous political speech is significant for several reasons. First, the Anti-Federalists clearly believed the right to author and publish anonymous political articles and pamphlets was protected by the liberty of the press. Second, although printers' editorial policies did not constitute state action, the Anti-Federalists believed that the Federalists were merely flexing the governmental powers they would fully exercise upon the Constitution's ratification. Third, and perhaps most significantly, it appears that the Federalists agreed with the Anti-Federalist critique. In Philadelphia, where opposition to the ban was strongest, there is no record that any newspaper adopted the nonanonymity policy, nor that of *367 any city or State aside from Russell's Massachusetts Centinel and the Federalist Massachusetts Gazette. Moreover, these two papers' bark was worse than their bite. In the face of widespread criticism, it appears that Russell retreated from his policy and, as he put it, "`readily' " reprinted several anonymous Federalist and Anti-Federalist essays to show that claims that he had suppressed freedom of the press "`had not any foundation in truth.' " 13 Documentary History 313-314. Likewise, the Massachusetts Gazette refused to release the names of Anti-Federalist writers when requested. Ibid. When Federalist attempts to ban anonymity are followed by a sharp, widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author's name. III The historical record is not as complete or as full as I would desire. For example, there is no evidence that, after the adoption of the First Amendment, the Federal Government attempted to require writers to attach their names to political documents. Nor do we have any indication that the federal courts of the early Republic would have squashed such an effort as a violation of the First Amendment. The understanding described above, however, when viewed in light of the Framers' universal practice of publishing anonymous articles and pamphlets, indicates that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech. The large quantity of newspapers and pamphlets the Framers produced during the various crises of their generation show the remarkable extent to which the Framers relied upon anonymity. During the break with Great Britain, the *368 revolutionaries employed pseudonyms both to conceal their identity from Crown authorities and to impart a message. Often, writers would choose names to signal their point of view or to invoke specific classical and modern "crusaders in an agelong struggle against tyranny." A. Schlesinger, Prelude to Independence 35 (1958). Thus, leaders of the struggle for independence would adopt descriptive names such as "Common Sense," a "Farmer," or "A True Patriot," or historical ones such as "Cato" (a name used by many to refer to the Roman Cato and to Cato's letters), or "Mucius Scaevola." Id. , at xiiโ€”xiii. The practice was even more prevalent during the great outpouring of political argument and commentary that accompanied the ratification of the Constitution. Besides "Publius," prominent Federalists signed their articles and pamphlets with names such as "An American Citizen," "Marcus," "A Landholder," "Americanus"; AntiFederalists replied with the pseudonyms "Cato," "Centinel," "Brutus," the "Federal Farmer," and "The Impartial Examiner." See generally 1-2 Debate on the Constitution (B. Bailyn ed. 1993). The practice of publishing one's thoughts anonymously or under pseudonym was so widespread that only two major Federalist or Anti-Federalist pieces appear to have been signed by their true authors, and they may have had special reasons to do so.[3] If the practice of publishing anonymous articles and pamphlets fell into disuse after the Ratification, one might infer that the custom of anonymous political speech arose only in response to the unusual conditions of the 1776-1787 period. *369 After all, the Revolution and the Ratification were not "elections," per se, either for candidates or for discrete issues. Records from the first federal elections indicate, however, that anonymous political pamphlets and newspaper articles remained the favorite media for expressing views on candidates. In Pennsylvania, for example, writers for or against the Federalist and Anti-Federalist candidates wrote under the names "Numa," "Pompilius," "A Friend to Agriculture, Trade, and Good Laws," "A Federal Centinel," a "Freeman," "Centinel," "A Real Patriot to All True Federalists," "A Mechanic," "Justice," "A German Federalist," and so on. See generally 1 Documentary History of the First Federal Elections 1788-1790, pp. 246-362 (M. Jensen & R. Becker eds. 1976). This appears to have been the practice in allof the major States of which we have substantial records today. See 1 id. , at 446-464 (Massachusetts); 2 id. , at 108-122, 175โ€” 229 (Maryland); 2 id. , at 387-397 (Virginia); 3 id. , at 204-216, 436-493 (New York). It seems that actual names were used rarely, and usually only by candidates who wanted to explain their positions to the electorate. The use of anonymous writing extended to issues as well as candidates. The ratification of the Constitution was not the only issue discussed via anonymous writings in the press. James Madison and Alexander Hamilton, for example, resorted to pseudonyms in the famous "Helvidius" and "Pacificus" debates over President Washington's declaration of neutrality in the war between the British and French. See Hamilton, Pacificus No. 1, June 29, 1793, in 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison, Helvidius No. 1, Aug. 24, 1793, in 15 Papers of James Madison 66-73 (T. Mason, R. Rutland, J. Sisson eds. 1985). Anonymous writings continued in such Republican papers as the Aurora and Federalists organs such as the Gazette of the United States at least until the election of Thomas Jefferson. See generally J. Smith, Freedom's Fetters (1956). *370 IV This evidence leads me to agree with the majority's result, but not its reasoning. The majority fails to seek the original understanding of the First Amendment, and instead attempts to answer the question in this case by resorting to three approaches. First, the majority recalls the historical practice of anonymous writing from Shakespeare's works to the Federalist Papers to Mark Twain. Ante, at 341, and n. 4, 342-343, and n. 6, 357. Second, it finds that anonymous speech has an expressive value both to the speaker and to society that outweighs public interest in disclosure. Third, it finds that ง 3599.09(A) cannot survive strict scrutiny because it is a "content-based" restriction on speech. I cannot join the majority's analysis because it deviates from our settled approach to interpreting the Constitution and because it superimposes its modern theories concerning expression upon the constitutional text. Whether "great works of literature"โ€”by Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases "free speech" or "free press" meant to the people who drafted and ratified the First Amendment. Similarly, whether certain types of expression have "value" today has little significance; what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights. And although the majority faithfully follows our approach to "content-based" speech regulations, we need not undertake this analysis when the original understanding provides the answer. While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when *371 interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the judgment.

The dissent is stirring in its appreciation of democratic values. But I do not see the Court's opinion as unguided by "bedrock principle," tradition, or our case law. See post, at 375-378, 378-380. Margaret McIntyre's case, it seems to me, bears a marked resemblance to Margaret Gilleo's case[1] and Mary Grace's.[2] All three decisions, I believe, are sound, and hardly sensational, applications of our First Amendment jurisprudence. In for a calf is not always in for a cow. The Court's decision finds unnecessary, over intrusive, and inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do not thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity. Appropriately leaving open matters not presented by McIntyre's handbills, the Court recognizes that a State's interest in protecting an election process "might justify a more limited identification requirement." Ante, at 353. But the Court has convincingly explained why Ohio lacks "cause for inhibiting the leaf letting at issue here." Justice Thomas, concurring in the judgment. I agree with the majority's conclusion that Ohio's election law, Ohio Rev. Code Ann. ง 3599.09(A) (1988), is inconsistent with the First Amendment. I would apply, however, a different *359 methodology to this case. Instead of asking whether "an honorable tradition" of anonymous speech has existed throughout American history, or what the "value" of anonymous speech might be, we should determine whether the phrase "freedom of speech, or of the press," as originally understood, protected anonymous political leaf letting. I believe that it d I The First Amendment states that the government "shall make no law abridging the freedom of speech, or of the press." U. S. Const., Amdt. 1. When interpreting the Free Speech and Press Clauses, we must be guided by their original meaning, for "[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now." South We have long recognized that the meaning of the Constitution "must necessarily depend on the words of the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions in the several states." Rhode See also We should seek the original understanding when we interpret the Speech and Press Clauses, just as we do when we read the Religion Clauses of the First Amendment. When the Framers did not discuss the precise question at issue, we have turned to "what history reveals was the contemporaneous understanding of [the Establishment Clause's] guarantees." "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." School Dist. of Abington ; see also *360 II Unfortunately, we have no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must focus on the practices and beliefs held by the Founders concerning anonymous political articles and pamphlets. As an initial matter, we can safely maintain that the leaflets at issue in this case implicate the freedom of the press. When the Framers thought of the press, they did not envision the large, corporate newspaper and television establishments of our modern world. Instead, they employed the term "the press" to refer to the many independent printers who circulated small newspapers or published writers' pamphlets for a fee. See generally B. Bailyn & J. Hench, The Press & the American Revolution (1980); L. Levy, Emergence of a Free Press (1985); B. Bailyn, The Ideological Origins of the American Revolution (1967). "It was in this formโ€”as pamphletsโ€”that much of the most important and characteristic writing of the American Revolution occurred." 1 B. Bailyn, Pamphlets of the American Revolution 3 (1965). This practice continued during the struggle for ratification. See, e. g., Pamphlets on the Constitution of the United States (P. Ford ed. 1888). Regardless of whether one designates the right involved here as one of press or one of speech, however, it makes little difference in terms of our analysis, which seeks to determine only whether the First Amendment, as originally understood, protects anonymous writing. There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of "Publius," are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution. Of course, the simple fact that the Framers engaged in certain conduct does not necessarily prove that they forbade its prohibition by the government. See post, at 373 *361 In this case, however, the historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the "freedom of the press." For example, the earliest and most famous American experience with freedom of the press, the 1735 Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter Zenger, who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger himself for seditious libel. See J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 9-19 (S. Katz ed. 1972). Although the case set the Colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind. During the Revolutionary and Ratification periods, the Framers' understanding of the relationship between anonymity and freedom of the press became more explicit. In 1779, for example, the Continental Congress attempted to discover the identity of an anonymous article in the Pennsylvania Packet signed by the name "Leonidas." Leonidas, who actually was Dr. Benjamin Rush, had attacked the Members of Congress for causing inflation throughout the States and for engaging in embezzelment and fraud. 13 Letters of Delegates to Congress 1774-1789, p. 141, n. 1 (G. Gawalt & R. Gephart eds. 1986). Elbridge Gerry, a delegate from Massachusetts, moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas. Several Members of Congress then rose to oppose Gerry's motion on the ground that it invaded the freedom of the press. Merriweather Smith of Virginia rose, quoted from *362 the offending article with approval, and then finished with a declaration that "[w]hen the liberty of the Press shall be restrained the liberties of the People will be at an end." Henry Laurens, Notes of Debates, July 3, 1779, at 139. Supporting Smith, John Penn of North Carolina argued that the writer "no doubt had good designs, " and that "[t]he liberty of the Press ought not to be restrained." In the end, these arguments persuaded the assembled delegates, who "sat mute" in response to Gerry's motion. at 141. Neither the printer nor Dr. Rush ever appeared before Congress to answer for their publication. D. Teeter, Press Freedom and the Public Printing: Pennsylvania, 1775-83, 45 Journalism Q. 445, 451 (1968). At least one of the state legislatures shared Congress' view that the freedom of the press protected anonymous writing. Also in 1779, the upper house of the New Jersey State Legislature attempted to punish the author of a satirical attack on the Governor and the College of New Jersey (now Princeton) who had signed his work "Cincinnatus." R. Hixson, Isaac Collins: A Quaker Printer in 18th Century America 95 (1968). Attempting to enforce the crime of seditious libel, the State Legislative Council ordered Isaac Collinsโ€”the printer and editor of the newspaper in which the article had appearedโ€”to reveal the author's identity. Refusing, Collins declared: "`Were I to comply I conceive I should betray the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.' " at 96. Apparently, the State Assembly agreed that anonymity was protected by the freedom of the press, as it voted to support the editor and publisher by frustrating the council's orders. at 95. By 1784, the same Governor of New Jersey, William Livingston, was at work writing anonymous articles that defended the right to publish anonymously as part of the freedom of the press. Under the pseudonym "Scipio," *363 Livingston wrote several articles attacking the legislature's failure to lower taxes, and he accused a state officer of stealing or losing state funds during the British invasion of New Jersey. at 107-109; Scipio, Letter to the Printer, Feb. 24, 1784, The New-Jersey Gazette. Responding to the allegations, the officer called upon Scipio "to avow your publication, give up your real name." S. Tucker, To Scipio, Mar. 2, 1784, The New-Jersey Gazette. Livingston replied with a four-part series defending "the Liberty of the Press." Although Livingston at first defended anonymity because it encouraged authors to discuss politics without fear of reprisal, he ultimately invoked the liberty of the press as the guardian for anonymous political writing. "I hope [Tucker] is not seriously bent upon a total subversion of our political system," Scipio wrote. "And pray may not a man, in a free country, convey thro' the press his sentiments on publick grievances. without being obliged to send a certified copy of the baptismal register to prove his name." Scipio, On the Liberty of the Press IV, Apr. 26, 1784, The New-Jersey Gazette. To be sure, there was some controversy among newspaper editors over publishing anonymous articles and pamphlets. But this controversy was resolved in a manner that indicates that the freedom of the press protected an author's anonymity. The tempest began when a Federalist, writing anonymously himself, expressed fear that "emissaries" of "foreign enemies" would attempt to scuttle the Constitution by "fill[ing] the press with objections" against the proposal. Boston Independent Chronicle, Oct. 4, 1787, in 13 Documentary History of the Ratification of the Constitution 315 (J. Kaminski & G. Saladino eds. 1981) (hereinafter Documentary History). He called upon printers to refrain from publishing when the author "chooses to remain concealed." Benjamin Russell, the editor of the prominent Federalist newspaper the Massachusetts Centinel, immediately adopted a policy of refusing to publish Anti-Federalist pieces unless the *364 author provided his identity to be "handed to the publick, if required." Massachusetts Centinel, Oct. 10, 1787, A few days later, the Massachusetts Gazette announced that it would emulate the example set by the Massachusetts Centinel. Massachusetts Gazette, Oct. 16, 1787, In the same issue, the Gazette carried an article claiming that requiring an anonymous writer to leave his name with the printer, so that anyone who wished to know his identity could be informed, "appears perfectly reasonable, and is perfectly consistent with the liberty of the press." A Citizen, Massachusetts Gazette, Oct. 16, 1787, Federalists expressed similar thoughts in Philadelphia. See A Philadelphia Mechanic, Philadelphia Independent Gazetteer, Oct. 29, 1787, ; Galba, Philadelphia Independent Gazetteer, Oct. 31, 1787, The Jewel, Philadelphia Independent Gazetteer, Nov. 2, 1787, Ordinarily, the fact that some founding-era editors as a matter of policy decided not to publish anonymous articles would seem to shed little light upon what the Framers thought the government could do. The widespread criticism raised by the Anti-Federalists, however, who were the driving force behind the demand for a Bill of Rights, indicates that they believed the freedom of the press to include the right to author anonymous political articles and pamphlets.[1] That most other Americans shared this understanding is reflected in the Federalists' hasty retreat before the withering criticism of their assault on the liberty of the press. Opposition to Russell's declaration centered in Philadelphia. Three Philadelphia papers published the "Citizen" piece that had run in the Massachusetts Gazette. at *365 318-320.[2] In response, one of the leading Anti-Federalist writers, the "Federal Farmer," attacked Russell's policy: "What can be the views of those gentlemen in Boston, who countenanced the Printers in shutting up the press against a fair and free investigation of this important system in the usual way?" Letters From the Federal Farmer No. 5, Oct. 13, 1787, in 2 The Complete Anti-Federalist 254 (H. Storing ed. 1981). Another Anti-Federalist, "Philadelphiensis," also launched a substantial attack on Russell and his defenders for undermining the freedom of the press. "In this desperate situation of affairs the friends of this despotic scheme of government, were driven to the last and only alternative from which there was any probability of success; namely, the abolition of the freedom of the Press. " Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, 3 at 102. In Philadelphiensis' eyes, Federalist attempts to suppress the Anti-Federalist press by requiring the disclosure of authors' identities only foreshadowed the oppression permitted by the new Constitution. "Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution." at 103. According to Philadelphiensis, Federalist policies had already ruined freedom in Massachusetts: "In Boston the liberty of the press is now completely abolished; and hence all other privileges and rights of the people will in a short time be destroyed." at 104. Not limited to Philadelphia, the Anti-Federalist attack was repeated widely throughout the States. In New York, one writer exclaimed that the Federalist effort to suppress anonymity *366 would "reverse the important doctrine of the freedom of the press, " whose "truth" was "universally acknowledged." Detector, New York Journal, Oct. 25, 1787, in 13 Documentary History 318. "Detector" proceeded to proclaim that Russell's policy was "the introduction of this first trait of slavery into your country!" Responding to the Federalist editorial policy, a Rhode Island AntiFederalist wrote: "The Liberty of the Press, or the Liberty which every Person in the United States at present enjoys. is a Privilege of infinite Importance for which we have fought and bled," and that the attempt by "our aristocratical Gentry, to have every Person's Name published who should write against the proposed Federal Constitution, has given many of us a just Alarm." Argus, Providence United States Chronicle, Nov. 8, 1787, -321. Edward Powars, editor of the Anti-Federalist Boston American Herald, proclaimed that his pages would remain "free and open to all parties." Boston American Herald, Oct. 15, 1787, In the Boston Independent Chronicle of Oct. 18, 1787, "Solon" accused Russell of attempting to undermine a "freedom and independence of sentiments " which "should never be checked in a free country" and was "so essential to the existance of free Governments." at 313. The controversy over Federalist attempts to prohibit anonymous political speech is significant for several reasons. First, the Anti-Federalists clearly believed the right to author and publish anonymous political articles and pamphlets was protected by the liberty of the press. Second, although printers' editorial policies did not constitute state action, the Anti-Federalists believed that the Federalists were merely flexing the governmental powers they would fully exercise upon the Constitution's ratification. Third, and perhaps most significantly, it appears that the Federalists agreed with the Anti-Federalist critique. In Philadelphia, where opposition to the ban was strongest, there is no record that any newspaper adopted the nonanonymity policy, nor that of *367 any city or State aside from Russell's Massachusetts Centinel and the Federalist Massachusetts Gazette. Moreover, these two papers' bark was worse than their bite. In the face of widespread criticism, it appears that Russell retreated from his policy and, as he put it, "`readily' " reprinted several anonymous Federalist and Anti-Federalist essays to show that claims that he had suppressed freedom of the press "`had not any foundation in truth.' " 13 Documentary History 313-314. Likewise, the Massachusetts Gazette refused to release the names of Anti-Federalist writers when requested. When Federalist attempts to ban anonymity are followed by a sharp, widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author's name. III The historical record is not as complete or as full as I would desire. For example, there is no evidence that, after the adoption of the First Amendment, the Federal Government attempted to require writers to attach their names to political documents. Nor do we have any indication that the federal courts of the early Republic would have squashed such an effort as a violation of the First Amendment. The understanding described above, however, when viewed in light of the Framers' universal practice of publishing anonymous articles and pamphlets, indicates that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech. The large quantity of newspapers and pamphlets the Framers produced during the various crises of their generation show the remarkable extent to which the Framers relied upon anonymity. During the break with Great Britain, the *368 revolutionaries employed pseudonyms both to conceal their identity from Crown authorities and to impart a message. Often, writers would choose names to signal their point of view or to invoke specific classical and modern "crusaders in an agelong struggle against tyranny." A. Schlesinger, Prelude to Independence 35 (1958). Thus, leaders of the struggle for independence would adopt descriptive names such as "Common Sense," a "Farmer," or "A True Patriot," or historical ones such as "Cato" (a name used by many to refer to the Roman Cato and to Cato's letters), or "Mucius Scaevola." at xiiโ€”xiii. The practice was even more prevalent during the great outpouring of political argument and commentary that accompanied the ratification of the Constitution. Besides "Publius," prominent Federalists signed their articles and pamphlets with names such as "An American Citizen," "Marcus," "A Landholder," "Americanus"; AntiFederalists replied with the pseudonyms "Cato," "Centinel," "Brutus," the "Federal Farmer," and "The Impartial Examiner." See generally 1-2 Debate on the Constitution (B. Bailyn ed. 1993). The practice of publishing one's thoughts anonymously or under pseudonym was so widespread that only two major Federalist or Anti-Federalist pieces appear to have been signed by their true authors, and they may have had special reasons to do so.[3] If the practice of publishing anonymous articles and pamphlets fell into disuse after the Ratification, one might infer that the custom of anonymous political speech arose only in response to the unusual conditions of the 1776-1787 period. *369 After all, the Revolution and the Ratification were not "elections," per se, either for candidates or for discrete issues. Records from the first federal elections indicate, however, that anonymous political pamphlets and newspaper articles remained the favorite media for expressing views on candidates. In Pennsylvania, for example, writers for or against the Federalist and Anti-Federalist candidates wrote under the names "Numa," "Pompilius," "A Friend to Agriculture, Trade, and Good Laws," "A Federal Centinel," a "Freeman," "Centinel," "A Real Patriot to All True Federalists," "A Mechanic," "Justice," "A German Federalist," and so on. See generally 1 Documentary History of the First Federal Elections 1788-1790, pp. 246-362 (M. Jensen & R. Becker eds. 1976). This appears to have been the practice in allof the major States of which we have substantial records today. See 1 at 446-464 (Massachusetts); 2 at 108-122, 175โ€” 229 (Maryland); 2 at 387-397 (Virginia); 3 at 204-216, 436-493 (New York). It seems that actual names were used rarely, and usually only by candidates who wanted to explain their positions to the electorate. The use of anonymous writing extended to issues as well as candidates. The ratification of the Constitution was not the only issue discussed via anonymous writings in the press. James Madison and Alexander Hamilton, for example, resorted to pseudonyms in the famous "Helvidius" and "Pacificus" debates over President Washington's declaration of neutrality in the war between the British and French. See Hamilton, Pacificus No. 1, June 29, 1793, in 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison, Helvidius No. 1, Aug. 24, 1793, in 15 Papers of James Madison 66-73 (T. Mason, R. Rutland, J. Sisson eds. 1985). Anonymous writings continued in such Republican papers as the Aurora and Federalists organs such as the Gazette of the United States at least until the election of Thomas Jefferson. See generally J. Smith, Freedom's Fetters (1956). *370 IV This evidence leads me to agree with the majority's result, but not its reasoning. The majority fails to seek the original understanding of the First Amendment, and instead attempts to answer the question in this case by resorting to three approaches. First, the majority recalls the historical practice of anonymous writing from Shakespeare's works to the Federalist Papers to Mark Twain. Ante, at 341, and n. 4, 342-343, and n. 6, 357. Second, it finds that anonymous speech has an expressive value both to the speaker and to society that outweighs public interest in disclosure. Third, it finds that ง 3599.09(A) cannot survive strict scrutiny because it is a "content-based" restriction on speech. I cannot join the majority's analysis because it deviates from our settled approach to interpreting the Constitution and because it superimposes its modern theories concerning expression upon the constitutional text. Whether "great works of literature"โ€”by Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases "free speech" or "free press" meant to the people who drafted and ratified the First Amendment. Similarly, whether certain types of expression have "value" today has little significance; what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights. And although the majority faithfully follows our approach to "content-based" speech regulations, we need not undertake this analysis when the original understanding provides the answer. While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when *371 interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the judgment.

Justice Scalia

dissenting

McIntyre v. Ohio Elections Comm'n

1995-04-19

https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/

https://www.courtlistener.com/api/rest/v3/clusters/117921/

1994-045

At a time when both political branches of Government and both political parties reflect a popular desire to leave more decision making authority to the States, today's decision moves in the opposite direction, adding to the legacy of inflexible central mandates (irrevocable even by Congress) imposed by this Court's constitutional jurisprudence. In an opinion which reads as though it is addressing some peculiar law like the Los Angeles municipal ordinance at issue in Talley v. California, 362 U.S. 60 (1960), the Court invalidates a species of protection for the election process that exists, in a variety of forms, in every State except California, and that has a pedigree dating back to the end of the 19th century. Preferring the views of the English utilitarian philosopher John Stuart Mill, ante, at 357, to the considered judgment of the American people's elected representatives from coast to coast, the Court discovers a hitherto unknown right-to-beunknown while engaging in electoral politics. I dissent from this imposition of free-speech imperatives that are demonstrably not those of the American people today, and that there is inadequate reason to believe were those of the society that begat the First Amendment or the Fourteenth. I The question posed by the present case is not the easiest sort to answer for those who adhere to the Court's (and the *372 society's) traditional view that the Constitution bears its original meaning and is unchanging. Under that view, "[o]n every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." T. Jefferson, Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed. 1904). That technique is simple of application when government conduct that is claimed to violate the Bill of Rights or the Fourteenth Amendment is shown, upon investigation, to have been engaged in without objection at the very time the Bill of Rights or the Fourteenth Amendment was adopted. There is no doubt, for example, that laws against libel and obscenity do not violate "the freedom of speech" to which the First Amendment refers; they existed and were universally approved in 1791. Application of the principle of an unchanging Constitution is also simple enough at the other extreme, where the government conduct at issue was not engaged in at the time of adoption, and there is ample evidence that the reason it was not engaged in is that it was thought to violate the right embodied in the constitutional guarantee. Racks and thumbscrews, well-known instruments for inflicting pain, were not in use because they were regarded as cruel punishments. The present case lies between those two extremes. Anonymous electioneering was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. I need not dwell upon the evidence of that, since it is described at length in today's concurrence. See ante, at 360โ€” 369 (Thomas, J., concurring in judgment). The practice of anonymous electioneering may have been less general in 1868, *373 when the Fourteenth Amendment was adopted, but at least as late as 1837 it was respectable enough to be engaged in by Abraham Lincoln. See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1 Uncollected Works of Abraham Lincoln 155-161 (R. Wilson ed. 1947). But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern election laws such as those involved in Burson v. Freeman, 504 U.S. 191 (1992), and Buckley v. Valeo, 424 U.S. 1 (1976), would be prohibited, as would (to mention only a few other categories) modern anti noise regulation of the sort involved in Kovacs v. Cooper, 336 U.S. 77 (1949), and Ward v. Rock Against Racism, 491 U.S. 781 (1989), and modern parade-permitting regulation of the sort involved in Cox v. New Hampshire, 312 U.S. 569 (1941). Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent. The concurrence points to "freedom of the press" objections that were made against the refusal of some Federalist newspapers to publish unsigned essays opposing the proposed Constitution (on the ground that they might be the work of foreign agents). See ante, at 364-366 (Thomas, J., concurring in judgment). But, of course, if every partisan cry of "freedom of the press" were accepted as valid, our Constitution would be unrecognizable; and if one were to generalize from these particular cries, the First Amendment would be not only a protection for newspapers, but a restriction upon them. Leaving aside, however, the fact that no governmental action was involved, the Anti-Federalists had a point, inasmuch as the editorial proscription of anonymity applied only to them, and thus had the vice of viewpoint discrimination. (Hence the comment by Philadelphiensis, *374 quoted in the concurrence: "`Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution.' " Ante, at 365 (quoting Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, in 3 Complete Anti-Federalist 103 (H. Storing ed. 1981)).) The concurrence recounts other pre- and post-Revolution examples of defense of anonymity in the name of "freedom of the press," but not a single one involves the context of restrictions imposed in connection with a free, democratic election, which is all that is at issue here. For many of them, moreover, such as the 1735 Zenger trial, ante, at 361, the 1779 "Leonidas" controversy in the Continental Congress, ibid., and the 1779 action by the New Jersey Legislative Council against Isaac Collins, ante, at 362, the issue of anonymity was incidental to the (unquestionably free-speech) issue of whether criticism of the government could be punished by the state. Thus, the sum total of the historical evidence marshaled by the concurrence for the principle of constitutional entitlement to anonymous electioneering is partisan claims in the debate on ratification (which was almost like an election) that a viewpoint-based restriction on anonymity by newspaper editors violates freedom of speech. This absence of historical testimony concerning the point before us is hardly remarkable. The issue of a governmental prohibition upon anonymous electioneering in particular (as opposed to a government prohibition upon anonymous publication in general) simply never arose. Indeed, there probably never arose even the abstract question whether electoral openness and regularity was worth such a governmental restriction upon the normal right to anonymous speech. The idea of close government regulation of the electoral process is a more modern phenomenon, arriving in this country in the late 1800's. See Burson v. Freeman, supra, at 203-205. *375 What we have, then, is the most difficult case for determining the meaning of the Constitution. No accepted existence of governmental restrictions of the sort at issue here demonstrates their constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections. In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press) that existed when the constitutional protection was accorded. In the present case, absent other indication, I would be inclined to agree with the concurrence that a society which used anonymous political debate so regularly would not regard as constitutional even moderate restrictions made to improve the election process. (I would, however, want further evidence of common practice in 1868, since I doubt that the Fourteenth Amendment time-warped the post-Civil War States back to the Revolution.) But there is other indication, of the most weighty sort: the widespread and long-standing traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. And that is what we have before us here. Ohio Rev. Code Ann. ง 3599.09(A) (1988) was enacted by the General Assembly of the State of Ohio almost 80 years ago. See Act of May 27, 1915, 1915 Ohio Leg. Acts 350. Even at the time of its adoption, there was nothing unique or extraordinary about it. The earliest statute of this sort was adopted by Massachusetts in 1890, little more than 20 years after the Fourteenth Amendment was ratified. No *376 less than 24 States had similar laws by the end of World War I,[1] and today every State of the Union except California has one,[2] as does the District of Columbia, see D. C. Code *377 Ann. ง 1-1420 (1992), and as does the Federal Government where advertising relating to candidates for federal office is concerned, see 2 U.S. C. ง 441d(a). Such a universal[3] and long-established American legislative practice must be given precedence, I think, over historical and academic speculation regarding a restriction that assuredly does not go to the heart of free speech. It can be said that we ignored a tradition as old, and almost as widespread, in Texas v. Johnson, 491 U.S. 397 (1989), where we held unconstitutional a state law prohibiting desecration of the United States flag. See also United States v. Eichman, 496 U.S. 310 (1990). But those cases merely *378 stand for the proposition that post adoption tradition cannot alter the core meaning of a constitutional guarantee. As we said in Johnson, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." 491 U.S., at 414. Prohibition of expression of contempt for the flag, whether by contemptuous words, see Street v. New York, 394 U.S. 576 (1969), or by burning the flag, came, we said, within that "bedrock principle." The law at issue here, by contrast, forbids the expression of no idea, but merely requires identification of the speaker when the idea is uttered in the electoral context. It is at the periphery of the First Amendment, like the law at issue in Burson, where we took guidance from tradition in upholding against constitutional attack restrictions upon electioneering in the vicinity of polling places, see 504 U.S., at 204-206 (plurality opinion); id., at 214-216 (Scalia, J., concurring in judgment). II The foregoing analysis suffices to decide this case for me. Where the meaning of a constitutional text (such as "the freedom of speech") is unclear, the widespread and longaccepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine. Even if I were to close my eyes to practice, however, and were to be guided exclusively by deductive analysis from our case law, I would reach the same result. Three basic questions must be answered to decide this case. Two of them are readily answered by our precedents; the third is readily answered by common sense and by a decent regard for the practical judgment of those more familiar with elections than we are. The first question is whether protection of the election process justifies limitations upon speech that cannot constitutionally be imposed generally. (If not, Talley v. California, which invalidated a flat ban on *379 all anonymous leaf letting, controls the decision here.) Our cases plainly answer that question in the affirmativeโ€”indeed, they suggest that no justification for regulation is more compelling than protection of the electoral process. "Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The State has a "compelling interest in preserving the integrity of its election process." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 231 (1989). So significant have we found the interest in protecting the electoral process to be that we have approved the prohibition of political speech entirely in areas that would impede that process. Burson, supra, at 204-206 (plurality opinion). The second question relevant to our decision is whether a "right to anonymity" is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer, again, is clear: no. Several of our cases have held that in peculiar circumstances the compelled disclosure of a person's identity would unconstitutionally deter the exercise of First Amendment associational rights. See, e. g., Brown v. Socialist Workers `74 Campaign Comm. (Ohio), 459 U.S. 87 (1982); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). But those cases did not acknowledge any general right to anonymity, or even any right on the part of all citizens to ignore the particular laws under challenge. Rather, they recognized a right to an exemption from otherwise valid disclosure requirements on the part of someone who could show a "reasonable probability" that the compelled disclosure would result in "threats, harassment, or reprisals from either Government officials or private parties." This last quotation is from Buckley v. Valeo, 424 U. S., at 74 (per curiam), which prescribed the safety valve of a similar exemption in upholding the disclosure requirements of the Federal Election Campaign Act. That is the answer our case law provides *380 to the Court's fear about the "tyranny of the majority," ante, at 357, and to its concern that "`[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all,' " ante, at 342 (quoting Talley, 362 U. S., at 64). Anonymity can still be enjoyed by those who require it, without utterly destroying useful disclosure laws. The record in this case contains not even a hint that Mrs. McIntyre feared "threats, harassment, or reprisals"; indeed, she placed her name on some of her fliers and meant to place it on all of them. See App. 12, 36-40. The existence of a generalized right of anonymity in speech was rejected by this Court in Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), which held that newspapers desiring the privilege of second-class postage could be required to provide to the Postmaster General, and to publish, a statement of the names and addresses of their editors, publishers, business managers, and owners. We rejected the argument that the First Amendment forbade the requirement of such disclosure. Id., at 299. The provision that gave rise to that case still exists, see 39 U.S. C. ง 3685, and is still enforced by the Postal Service. It is one of several federal laws seemingly invalidated by today's opinion. The Court's unprecedented protection for anonymous speech does not even have the virtue of establishing a clear (albeit erroneous) rule of law. For after having announced that this statute, because it "burdens core political speech," requires "`exacting scrutiny' " and must be "narrowly tailored to serve an overriding state interest," ante, at 347 (ordinarily the kiss of death), the opinion goes on to proclaim soothingly (and unhelpfully) that "a State's enforcement interest might justify a more limited identification requirement," ante, at 353. See also ante, at 358 (Ginsburg, J., concurring) ("We do not . . . hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity"). Perhaps, then, not *381 all the state statutes I have alluded to are invalid, but just some of them; or indeed maybe all of them remain valid in "larger circumstances"! It may take decades to work out the shape of this newly expanded right-to-speak-incognito, even in the elections field. And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors. Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a municipally owned theater that is leased for private productions book anonymously sponsored presentations? Must a government periodical that has a "letters to the editor" column disavow the policy that most newspapers have against the publication of anonymous letters? Must a public university that makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the on-campus or off-campus group that has sponsored or paid for the speech? Must a municipal "public-access" cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. The third and last question relevant to our decision is whether the prohibition of anonymous campaigning is effective in protecting and enhancing democratic elections. In answering this question no, the Justices of the majority set their own viewsโ€”on a practical matter that bears closely upon the real-life experience of elected politicians and not upon that of unelected judgesโ€”up against the views of 49 (and perhaps all 50, see n. 4, supra ) state legislatures and the Federal Congress. We might also add to the list on the other side the legislatures of foreign democracies: Australia, Canada, and England, for example, all have prohibitions upon anonymous campaigning. See, e. g., Commonwealth Electoral Act 1918, ง 328 (Australia); Canada Elections Act, R. S. C., ch. E-2, ง 261 (1985); Representation of the People Act, 1983, ง 110 (England). How is it, one must wonder, that *382 all of these elected legislators, from around the country and around the world, could not see what six Justices of this Court see so clearly that they are willing to require the entire Nation to act upon it: that requiring identification of the source of campaign literature does not improve the quality of the campaign? The Court says that the State has not explained "why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection." Ante, at 352-353. I am not sure what this complicated comparison means. I am sure, however, that (1) a person who is required to put his name to a document is much less likely to lie than one who can lie anonymously, and (2) the distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus, people will be more likely to observe a signing requirement than a naked "no falsity" requirement; and, having observed that requirement, will then be significantly less likely to lie in what they have signed. But the usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and dignified level of campaign debateโ€” which the State has no power to command, but ample power to encourage by such undemanding measures as a signature requirement. Observers of the past few national elections have expressed concern about the increase of character assassinationโ€”"mudslinging" is the colloquial termโ€”engaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office. *383 Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased potential for "dirty tricks." It is not unheard-of for campaign operatives to circulate material over the name of their opponents or their opponents' supporters (a violation of election laws) in order to attract or alienate certain interest groups. See, e. g., B. Felknor, Political Mischief: Smear, Sabotage, and Reform in U. S. Elections 111-112 (1992) (fake United Mine Workers' newspaper assembled by the National Republican Congressional Committee); New York v. Duryea, 76 Misc. 2d 948, 351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting to be from the "Action Committee for the Liberal Party" sent by Republicans). How much easierโ€”and sanction free!โ€”it would be to circulate anonymous material (for example, a really tasteless, though not actionably false, attack upon one's own candidate) with the hope and expectation that it will be attributed to, and held against, the other side. The Court contends that demanding the disclosure of the pamphleteer's identity is no different from requiring the disclosure of any other information that may reduce the persuasiveness of the pamphlet's message. See ante, at 348-349. It cites Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), which held it unconstitutional to require a newspaper that had published an editorial critical of a particular candidate to furnish space for that candidate to reply. But it is not usual for a speaker to put forward the best arguments against himself, and it is a great imposition upon free speech to make him do so. Whereas it is quite usualโ€”it is expectedโ€”for a speaker to identify himself, and requiring that is (at least when there are no special circumstances present) virtually no imposition at all. We have approved much more onerous disclosure requirements in the name of fair elections. In Buckley v. Valeo, 424 *384 U. S. 1 (1976), we upheld provisions of the Federal Election Campaign Act that required private individuals to report to the Federal Election Commission independent expenditures made for communications advocating the election or defeat of a candidate for federal office. Id., at 80. Our primary rationale for upholding this provision was that it served an "informational interest" by "increas[ing] the fund of information concerning those who support the candidates." Id., at 81. The provision before us here serves the same informational interest, as well as more important interests, which I have discussed above. The Court's attempt to distinguish Buckley, see ante, at 356, would be unconvincing, even if it were accurate in its statement that the disclosure requirement there at issue "reveals far less information" than requiring disclosure of the identity of the author of a specific campaign statement. That happens not to be accurate, since the provision there at issue required not merely "[d]isclosure of an expenditure and its use, without more." Ante, at 355. It required, among other things: "the identification of each person to whom expenditures have been made . . . within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candi- date on whose behalf such expenditure was made." 2 U.S. C. ง 434(b)(9) (1970 ed., Supp. IV) (emphasis added). See also 2 U.S. C. ง 434(e) (1970 ed., Supp. IV). (Both reproduced in Appendix to Buckley, supra, at 158, 160.) Surely in many if not most cases, this information will readily permit identification of the particular message that the would-be-anonymous campaigner sponsored. Besides which the burden of complying with this provision, which includes the filing of quarterly reports, is infinitely more onerous than Ohio's simple requirement for signature of *385 campaign literature. If Buckley remains the law, this is an easy case. * * * I do not know where the Court derives its perception that "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." Ante, at 357. I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity is needed to avoid "threats, harassment, or reprisals" the First Amendment will require an exemption from the Ohio law. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). But to strike down the Ohio law in its general applicationโ€”and similar laws of 49 other States and the Federal Governmentโ€” on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the future. I respectfully dissent.

At a time when both political branches of Government and both political parties reflect a popular desire to leave more decision making authority to the States, today's decision moves in the opposite direction, adding to the legacy of inflexible central mandates (irrevocable even by Congress) imposed by this Court's constitutional jurisprudence. In an opinion which reads as though it is addressing some peculiar law like the Los Angeles municipal ordinance at issue in the Court invalidates a species of protection for the election process that exists, in a variety of forms, in every State except California, and that has a pedigree dating back to the end of the 19th century. Preferring the views of the English utilitarian philosopher John Stuart Mill, ante, at 357, to the considered judgment of the American people's elected representatives from coast to coast, the Court discovers a hitherto unknown right-to-beunknown while engaging in electoral politics. I dissent from this imposition of free-speech imperatives that are demonstrably not those of the American people today, and that there is inadequate reason to believe were those of the society that begat the First Amendment or the Fourteenth. I The question posed by the present case is not the easiest sort to answer for those who adhere to the Court's (and the *372 society's) traditional view that the Constitution bears its original meaning and is unchanging. Under that view, "[o]n every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." T. Jefferson, Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas Jefferson 39, 9 (A. Lipscomb ed. 190). That technique is simple of application when government conduct that is claimed to violate the Bill of Rights or the Fourteenth Amendment is shown, upon investigation, to have been engaged in without objection at the very time the Bill of Rights or the Fourteenth Amendment was adopted. There is no doubt, for example, that laws against libel and obscenity do not violate "the freedom of speech" to which the First Amendment refers; they existed and were universally approved in 91. Application of the principle of an unchanging Constitution is also simple enough at the other extreme, where the government conduct at issue was not engaged in at the time of adoption, and there is ample evidence that the reason it was not engaged in is that it was thought to violate the right embodied in the constitutional guarantee. Racks and thumbscrews, well-known instruments for inflicting pain, were not in use because they were regarded as cruel punishments. The present case lies between those two extremes. Anonymous electioneering was not prohibited by law in 91 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. I need not dwell upon the evidence of that, since it is described at length in today's concurrence. See ante, at 360โ€” 369 (Thomas, J., concurring in judgment). The practice of anonymous electioneering may have been less general in 1868, *373 when the Fourteenth Amendment was adopted, but at least as late as 1837 it was respectable enough to be engaged in by Abraham Lincoln. See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1 Uncollected Works of Abraham Lincoln 155-161 (R. Wilson ed. 197). But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 91 or in 1868 is ipso facto unconstitutional, or else modern election laws such as those involved in and would be prohibited, as would (to mention only a few other categories) modern anti noise regulation of the sort involved in and and modern parade-permitting regulation of the sort involved in Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent. The concurrence points to "freedom of the press" objections that were made against the refusal of some Federalist newspapers to publish unsigned essays opposing the proposed Constitution (on the ground that they might be the work of foreign agents). See ante, at 36-366 (Thomas, J., concurring in judgment). But, of course, if every partisan cry of "freedom of the press" were accepted as valid, our Constitution would be unrecognizable; and if one were to generalize from these particular cries, the First Amendment would be not only a protection for newspapers, but a restriction upon them. Leaving aside, however, the fact that no governmental action was involved, the Anti-Federalists had a point, inasmuch as the editorial proscription of anonymity applied only to them, and thus had the vice of viewpoint discrimination. (Hence the comment by Philadelphiensis, *37 quoted in the concurrence: "`Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution.' " Ante, at 365 (quoting Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 87, in 3 Complete Anti-Federalist 103 (H. Storing ed. 1981)).) The concurrence recounts other pre- and post-Revolution examples of defense of anonymity in the name of "freedom of the press," but not a single one involves the context of restrictions imposed in connection with a free, democratic election, which is all that is at issue here. For many of them, moreover, such as the 35 Zenger trial, ante, at 361, the 79 "Leonidas" controversy in the Continental Congress, ib and the 79 action by the New Jersey Legislative Council against Isaac Collins, ante, at 362, the issue of anonymity was incidental to the (unquestionably free-speech) issue of whether criticism of the government could be punished by the state. Thus, the sum total of the historical evidence marshaled by the concurrence for the principle of constitutional entitlement to anonymous electioneering is partisan claims in the debate on ratification (which was almost like an election) that a viewpoint-based restriction on anonymity by newspaper editors violates freedom of speech. This absence of historical testimony concerning the point before us is hardly remarkable. The issue of a governmental prohibition upon anonymous electioneering in particular (as opposed to a government prohibition upon anonymous publication in general) simply never arose. Indeed, there probably never arose even the abstract question whether electoral openness and regularity was worth such a governmental restriction upon the normal right to anonymous speech. The idea of close government regulation of the electoral process is a more modern phenomenon, arriving in this country in the late 1800's. See *375 What we have, then, is the most difficult case for determining the meaning of the Constitution. No accepted existence of governmental restrictions of the sort at issue here demonstrates their constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections. In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press) that existed when the constitutional protection was accorded. In the present case, absent other indication, I would be inclined to agree with the concurrence that a society which used anonymous political debate so regularly would not regard as constitutional even moderate restrictions made to improve the election process. (I would, however, want further evidence of common practice in 1868, since I doubt that the Fourteenth Amendment time-warped the post-Civil War States back to the Revolution.) But there is other indication, of the most weighty sort: the widespread and long-standing traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. And that is what we have before us here. Ohio Rev. Code Ann. ง 3599.09(A) (1988) was enacted by the General Assembly of the State of Ohio almost 80 years ago. See Act of May 27, 1915, 1915 Ohio Leg. Acts 350. Even at the time of its adoption, there was nothing unique or extraordinary about it. The earliest statute of this sort was adopted by Massachusetts in 1890, little more than 20 years after the Fourteenth Amendment was ratified. No *376 less than 2 States had similar laws by the end of World War I,[1] and today every State of the Union except California has one,[2] as does the District of Columbia, see D. C. Code *377 Ann. ง 1-120 and as does the Federal Government where advertising relating to candidates for federal office is concerned, see 2 U.S. C. ง 1d(a). Such a universal[3] and long-established American legislative practice must be given precedence, I think, over historical and academic speculation regarding a restriction that assuredly does not go to the heart of free speech. It can be said that we ignored a tradition as old, and almost as widespread, in where we held unconstitutional a state law prohibiting desecration of the United States flag. See also United But those cases merely *378 stand for the proposition that post adoption tradition cannot alter the core meaning of a constitutional guarantee. As we said in Johnson, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Prohibition of expression of contempt for the flag, whether by contemptuous words, see or by burning the flag, came, we said, within that "bedrock principle." The law at issue here, by contrast, forbids the expression of no idea, but merely requires identification of the speaker when the idea is uttered in the electoral context. It is at the periphery of the First Amendment, like the law at issue in where we took guidance from tradition in upholding against constitutional attack restrictions upon electioneering in the vicinity of polling places, see -206 ; II The foregoing analysis suffices to decide this case for me. Where the meaning of a constitutional text (such as "the freedom of speech") is unclear, the widespread and longaccepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine. Even if I were to close my eyes to practice, however, and were to be guided exclusively by deductive analysis from our case law, I would reach the same result. Three basic questions must be answered to decide this case. Two of them are readily answered by our precedents; the third is readily answered by common sense and by a decent regard for the practical judgment of those more familiar with elections than we are. The first question is whether protection of the election process justifies limitations upon speech that cannot constitutionally be imposed generally. (If not, which invalidated a flat ban on *379 all anonymous leaf letting, controls the decision here.) Our cases plainly answer that question in the affirmativeโ€”indeed, they suggest that no justification for regulation is more compelling than protection of the electoral process. "Other rights, even the most basic, are illusory if the right to vote is undermined." The State has a "compelling interest in preserving the integrity of its election process." So significant have we found the interest in protecting the electoral process to be that we have approved the prohibition of political speech entirely in areas that would impede that process. The second question relevant to our decision is whether a "right to anonymity" is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer, again, is clear: no. Several of our cases have held that in peculiar circumstances the compelled disclosure of a person's identity would unconstitutionally deter the exercise of First Amendment associational rights. See, e. g., ; ; But those cases did not acknowledge any general right to anonymity, or even any right on the part of all citizens to ignore the particular laws under challenge. Rather, they recognized a right to an exemption from otherwise valid disclosure requirements on the part of someone who could show a "reasonable probability" that the compelled disclosure would result in "threats, harassment, or reprisals from either Government officials or private parties." This last quotation is from which prescribed the safety valve of a similar exemption in upholding the disclosure requirements of the Federal Election Campaign Act. That is the answer our case law provides *380 to the Court's fear about the "tyranny of the majority," ante, at 357, and to its concern that "`[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all,' " ante, at 32 (quoting Talley, ). Anonymity can still be enjoyed by those who require it, without utterly destroying useful disclosure laws. The record in this case contains not even a hint that Mrs. McIntyre feared "threats, harassment, or reprisals"; indeed, she placed her name on some of her fliers and meant to place it on all of them. See App. 12, 36-0. The existence of a generalized right of anonymity in speech was rejected by this Court in Lewis Publishing which held that newspapers desiring the privilege of second-class postage could be required to provide to the Postmaster General, and to publish, a statement of the names and addresses of their editors, publishers, business managers, and owners. We rejected the argument that the First Amendment forbade the requirement of such disclosure. The provision that gave rise to that case still exists, see 39 U.S. C. ง 3685, and is still enforced by the Postal Service. It is one of several federal laws seemingly invalidated by today's opinion. The Court's unprecedented protection for anonymous speech does not even have the virtue of establishing a clear (albeit erroneous) rule of law. For after having announced that this statute, because it "burdens core political speech," requires "`exacting scrutiny' " and must be "narrowly tailored to serve an overriding state interest," ante, at 37 (ordinarily the kiss of death), the opinion goes on to proclaim soothingly (and unhelpfully) that "a State's enforcement interest might justify a more limited identification requirement," ante, at 353. See also ante, at 358 (Ginsburg, J., concurring) ("We do not hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity"). Perhaps, then, not *381 all the state statutes I have alluded to are invalid, but just some of them; or indeed maybe all of them remain valid in "larger circumstances"! It may take decades to work out the shape of this newly expanded right-to-speak-incognito, even in the elections field. And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors. Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a municipally owned theater that is leased for private productions book anonymously sponsored presentations? Must a government periodical that has a "letters to the editor" column disavow the policy that most newspapers have against the publication of anonymous letters? Must a public university that makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the on-campus or off-campus group that has sponsored or paid for the speech? Must a municipal "public-access" cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. The third and last question relevant to our decision is whether the prohibition of anonymous campaigning is effective in protecting and enhancing democratic elections. In answering this question no, the Justices of the majority set their own viewsโ€”on a practical matter that bears closely upon the real-life experience of elected politicians and not upon that of unelected judgesโ€”up against the views of 9 (and perhaps all 50, see n. ) state legislatures and the Federal Congress. We might also add to the list on the other side the legislatures of foreign democracies: Australia, Canada, and England, for example, all have prohibitions upon anonymous campaigning. See, e. g., Commonwealth Electoral Act 1918, ง 328 (Australia); Canada Elections Act, R. S. C., ch. E-2, ง 261 (1985); Representation of the People Act, 1983, ง 110 (England). How is it, one must wonder, that *382 all of these elected legislators, from around the country and around the world, could not see what six Justices of this Court see so clearly that they are willing to require the entire Nation to act upon it: that requiring identification of the source of campaign literature does not improve the quality of the campaign? The Court says that the State has not explained "why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection." Ante, at 352-353. I am not sure what this complicated comparison means. I am sure, however, that (1) a person who is required to put his name to a document is much less likely to lie than one who can lie anonymously, and (2) the distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus, people will be more likely to observe a signing requirement than a naked "no falsity" requirement; and, having observed that requirement, will then be significantly less likely to lie in what they have signed. But the usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and dignified level of campaign debateโ€” which the State has no power to command, but ample power to encourage by such undemanding measures as a signature requirement. Observers of the past few national elections have expressed concern about the increase of character assassinationโ€”"mudslinging" is the colloquial termโ€”engaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office. *383 Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased potential for "dirty tricks." It is not unheard-of for campaign operatives to circulate material over the name of their opponents or their opponents' supporters (a violation of election laws) in order to attract or alienate certain interest groups. See, e. g., B. Felknor, Political Mischief: Smear, Sabotage, and Reform in U. S. Elections 111-112 (fake United Mine Workers' newspaper assembled by the National Republican Congressional Committee); New 76 Misc. 2d 98, (Sup. 197) How much easierโ€”and sanction free!โ€”it would be to circulate anonymous material (for example, a really tasteless, though not actionably false, attack upon one's own candidate) with the hope and expectation that it will be attributed to, and held against, the other side. The Court contends that demanding the disclosure of the pamphleteer's identity is no different from requiring the disclosure of any other information that may reduce the persuasiveness of the pamphlet's message. See ante, at 38-39. It cites Miami Herald Publishing 18 U.S. 21 (197), which held it unconstitutional to require a newspaper that had published an editorial critical of a particular candidate to furnish space for that candidate to reply. But it is not usual for a speaker to put forward the best arguments against himself, and it is a great imposition upon free speech to make him do so. Whereas it is quite usualโ€”it is expectedโ€”for a speaker to identify himself, and requiring that is (at least when there are no special circumstances present) virtually no imposition at all. We have approved much more onerous disclosure requirements in the name of fair elections. In 2 *38 U. S. 1 we upheld provisions of the Federal Election Campaign Act that required private individuals to report to the Federal Election Commission independent expenditures made for communications advocating the election or defeat of a candidate for federal office. Our primary rationale for upholding this provision was that it served an "informational interest" by "increas[ing] the fund of information concerning those who support the candidates." The provision before us here serves the same informational interest, as well as more important interests, which I have discussed above. The Court's attempt to distinguish see ante, at 356, would be unconvincing, even if it were accurate in its statement that the disclosure requirement there at issue "reveals far less information" than requiring disclosure of the identity of the author of a specific campaign statement. That happens not to be accurate, since the provision there at issue required not merely "[d]isclosure of an expenditure and its use, without more." Ante, at 355. It required, among other things: "the identification of each person to whom expenditures have been made within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candi- date on whose behalf such expenditure was made." 2 U.S. C. ง 3(b)(9) (1970 ed., Supp. IV) (emphasis added). See also 2 U.S. C. ง 3(e) (1970 ed., Supp. IV). (Both reproduced in Appendix to) Surely in many if not most cases, this information will readily permit identification of the particular message that the would-be-anonymous campaigner sponsored. Besides which the burden of complying with this provision, which includes the filing of quarterly reports, is infinitely more onerous than Ohio's simple requirement for signature of *385 campaign literature. If remains the law, this is an easy case. * * * I do not know where the Court derives its perception that "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." Ante, at 357. I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity is needed to avoid "threats, harassment, or reprisals" the First Amendment will require an exemption from the Ohio law. Cf. But to strike down the Ohio law in its general applicationโ€”and similar laws of 9 other States and the Federal Governmentโ€” on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the future. I respectfully dissent.

Justice Breyer

majority

United States v. Stitt

2018-12-10

https://www.courtlistener.com/opinion/4571625/united-states-v-stitt/

https://www.courtlistener.com/api/rest/v3/clusters/4571625/

2018-008

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term. The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes. 18 U.S. C. §924(e). Those prior convictions include convictions for “burglary.” §924(e)(2)(B)(ii). And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. We hold that it does. I The consolidated cases before us involve two defendants, 2 UNITED STATES v. STITT Opinion of the Court each of whom was convicted in a federal court of unlaw- fully possessing a firearm in violation of §922(g)(1). The maximum punishment for this offense is typically 10 years in prison. §924(a)(2). Each offender, however, had prior state burglary convictions sufficient, at least potentially, to require the sentencing judge to impose a mandatory 15- year minimum prison term under the Armed Career Crim- inal Act. That Act, as we have just said, requires an en- hanced sentence for offenders who have at least three previous convictions for certain “violent” or drug-related felonies. §924(e)(1). Those prior felonies include “any crime” that is “punishable by imprisonment for a term exceeding one year” and that also “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that pre- sents a serious potential risk of physical injury to an- other.” §924(e)(2)(B) (emphasis added). The question here concerns the scope of the statutory word “burglary.” The relevant prior convictions of one of the unlawful firearms offenders, Victor J. Stitt, were for violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” Tenn. Code Ann. §39–14– 403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including . . . mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-propelled vehicle that is designed or adapted for the overnight ac- commodation of persons and is actually occupied at the time of initial entry by the defendant.” §§39–14– 401(1)(A), (B) (emphasis added). The relevant prior convictions of the other unlawful Cite as: 586 U. S. ____ (2018) 3 Opinion of the Court firearms offender, Jason Daniel Sims, were for violations of an Arkansas statute that prohibits burglary of a “resi- dential occupiable structure.” Ark. Code Ann. §5–39– 201(a)(1) (Michie 1997). The statute defines “[r]esidential occupiable structure” to include: “a vehicle, building, or other structure: “(A) [w]here any person lives; or “(B) [w]hich is customarily used for overnight accom- modation of persons whether or not a person is actually present.” §5–39–101(1) (emphasis added). In both cases, the District Courts found that the state statutory crimes fell within the scope of the word “bur- glary” in the Armed Career Criminal Act and consequently imposed that statute’s mandatory sentence enhancement. In both cases, the relevant Federal Court of Appeals held that the statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and remanded for resentencing. See 860 F.3d 854 (CA6 2017) (en banc) (reversing panel decision to the contrary); 854 F.3d 1037 (CA8 2017). The Government asked us to grant certiorari to consider the question “[w]hether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’ under the Armed Career Criminal Act.” Pet. for Cert. in No. 17–765, p. i; Pet. for Cert. in No. 17–766, p. i. And, in light of uncer- tainty about the scope of the term “burglary” in the lower courts, we granted the Government’s request. Compare 860 F.3d, at 862–863; 854 F. 3d, at 1040; United States v. White, 836 F.3d 437, 446 (CA4 2016); United States v. Grisel, 488 F.3d 844 (CA9 2007) (en banc), with Smith v. United States, 877 F.3d 720, 724 (CA7 2017), cert. pend- ing, No. 17–7517; United States v. Spring, 80 F.3d 1450, 1462 (CA10 1996). 4 UNITED STATES v. STITT Opinion of the Court II A The word “burglary,” like the word “crime” itself, is ambiguous. It might refer to a kind of crime, a generic crime, as set forth in a statute (“a burglary consists of behavior that . . . ”), or it might refer to the way in which an individual offender acted on a particular occasion (“on January 25, Jones committed a burglary on Oak Street in South San Francisco”). We have held that the words in the Armed Career Criminal Act do the first. Accordingly, we have held that the Act requires us to evaluate a prior state conviction “in terms of how the law defines the of- fense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141 (2008). A prior state conviction, we have said, does not qualify as generic bur- glary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op., at 19). The case in which we first adopted this “categorical approach” is Taylor v. United States, 495 U.S. 575 (1990). That case, which specifically considered the statutory term “burglary,” governs here and determines the outcome. In Taylor, we did more than hold that the word “bur- glary” refers to a kind of generic crime rather than to the defendant’s behavior on a particular occasion. We also explained, after examining the Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied to all cases in which the Government seeks” an enhanced sentence under the Act. Id., at 580–592. We held that this uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and entering a dwelling at night with intent to commit a fel- ony. Id., at 593. But we added that it must include more. The classic definition, by excluding all places other than dwellings, we said, has “little relevance to modern law Cite as: 586 U. S. ____ (2018) 5 Opinion of the Court enforcement concerns.” Ibid. Perhaps for that reason, by the time the Act was passed in 1986, most States had expanded the meaning of burglary to include “structures other than dwellings.” Ibid. (citing W. LaFave & A. Scott, Substantive Criminal Law §§8.13(a)–(f) (1986)). In addition, the statute’s purpose, revealed by its lan- guage, ruled out limiting the scope of “burglary” to espe- cially serious burglaries, e.g., those having elements that created a particularly serious risk of physical harm. If that had been Congress’s intent, adding the word “bur- glary” would have been unnecessary, since the (now-invalid) residual clause “already include[d] any crime that ‘in- volves conduct that presents a serious potential risk of physical injury to another.’ ” Taylor, 495 U.S., at 597 (quoting 18 U.S. C. §924(e)(2)(B)(ii)); see Johnson v. United States, 576 U. S. ___, ___–___ (2015) (slip op., at 5–10) (holding residual clause unconstitutionally vague). We concluded that the Act’s term “burglary” must include “ordinary,” “run-of-the-mill” burglaries as well as aggra- vated ones. Taylor, 495 U.S., at 597. And we defined the elements of generic “burglary” as “an unlawful or unprivi- leged entry into, or remaining in, a building or other struc- ture, with intent to commit a crime.” Id., at 598. B The relevant language of the Tennessee and Arkansas statutes falls within the scope of generic burglary’s defini- tion as set forth in Taylor. For one thing, we made clear in Taylor that Congress intended the definition of “bur- glary” to reflect “the generic sense in which the term [was] used in the criminal codes of most States” at the time the Act was passed. Ibid. In 1986, a majority of state bur- glary statutes covered vehicles adapted or customarily used for lodging—either explicitly or by defining “building” or “structure” to include those vehicles. See, e.g., N. H. Rev. Stat. Ann. §635:1 (1974) (prohibiting burglary of an 6 UNITED STATES v. STITT Opinion of the Court “[o]ccupied structure,” defined to include “any structure, vehicle, boat or place adapted for overnight accommoda- tion of persons”); Ore. Rev. Stat. §§164.205, 164.215, 164.225 (1985) (prohibiting burglary of a “building,” de- fined to include “any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of per- sons”); see also ALI, Model Penal Code §§220.0(1), 221.1(1) (1980) (defining “ ‘occupied structure’ ” for purposes of burglary as “any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present”); Appendix, infra (collecting burglary statutes from 1986 or earlier that covered either vehicles adapted or customarily used for overnight accommodation or a broader class of vehicles). For another thing, Congress, as we said in Taylor, viewed burglary as an inherently dangerous crime because burglary “creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” 495 U.S., at 588; see also James v. United States, 550 U.S. 192, 203 (2007). An offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or customarily used for lodging runs a similar or greater risk of violent confrontation. See Spring, 80 F.3d, at 1462 (noting the greater risk of confrontation in a mobile home or camper, where “it is more difficult for the burglar to enter or escape unnoticed”). Although, as respondents point out, the risk of violence is diminished if, for example, a vehicle is only used for lodging part of the time, we have no reason to believe that Congress intended to make a part-time/full-time distinc- tion. After all, a burglary is no less a burglary because it took place at a summer home during the winter, or a commercial building during a holiday. Cf. Model Penal Code §221.1, Comment 3(b), p. 72 (burglary should cover Cite as: 586 U. S. ____ (2018) 7 Opinion of the Court places with the “apparent potential for regular occupancy”). Respondents make several additional arguments. Re- spondent Stitt argues that the Tennessee statute is too broad even under the Government’s definition of generic burglary. That is so, Stitt contends, because the statute covers the burglary of a “structure appurtenant to or connected with” a covered structure or vehicle, a provision that Stitt reads to include the burglary of even ordinary vehicles that are plugged in or otherwise appurtenant to covered structures. Tenn. Code Ann. §39–14–401(1)(C). Stitt’s interpretation, however, ignores that the “appurte- nant to” provision extends only to “structure[s],” not to the separate statutory term “vehicle[s].” Ibid. We therefore disagree with Stitt’s argument that the “appurtenant to” provision sweeps more broadly than generic burglary, as defined in Taylor, 495 U.S., at 598. Respondents also point out that in Taylor, Mathis, and other cases, we said that burglary of certain nontypical structures and vehicles fell outside the scope of the federal Act’s statutory word “burglary.” See, e.g., Taylor, 495 U.S., at 599 (noting that some States “define burglary more broadly” than generic burglary by, for example, “including places, such as automobiles and vending ma- chines, other than buildings”). And they argue that the vehicles covered here are analogous to the nontypical structures and vehicles to which the Court referred in those cases. Our examination of those cases, however, convinces us that we did not decide in either case the question now before us. In Taylor, for example, we referred to a Missouri break- ing and entering statute that among other things crimi- nalized breaking and entering “any boat or vessel, or railroad car.” Ibid. (citing Mo. Rev. Stat. §560.070 (1969); emphasis added). We did say that that particular provi- sion was beyond the scope of the federal Act. But the statute used the word “any”; it referred to ordinary boats 8 UNITED STATES v. STITT Opinion of the Court and vessels often at sea (and railroad cars often filled with cargo, not people), nowhere restricting its coverage, as here, to vehicles or structures customarily used or adapted for overnight accommodation. The statutes before us, by using these latter words, more clearly focus upon circum- stances where burglary is likely to present a serious risk of violence. In Mathis, we considered an Iowa statute that covered “any building, structure, . . . land, water or air vehicle, or similar place adapted for overnight accommodation of persons [or used] for the storage or safekeeping of any- thing of value.” Iowa Code §702.12 (2013). Courts have construed that statute to cover ordinary vehicles because they can be used for storage or safekeeping. See State v. Buss, 325 N.W.2d 384 (Iowa 1982); Weaver v. Iowa, 949 F.2d 1049 (CA8 1991). That is presumably why, as we wrote in our opinion, “all parties agree[d]” that Iowa’s burglary statute “covers more conduct than generic bur- glary does.” Mathis, 579 U. S., at ___ (slip op., at 5). The question before us was whether federal generic “burglary” includes within its scope a burglary statute that lists multiple, alternative means of satisfying one element, some of which fall within Taylor’s generic definition and some of which fall outside it. We held, in light of the parties’ agreement that the Iowa statute covered some “outside” behavior (i.e., ordinary vehicles), that the statute did not count as a generic burglary statute. But for pre- sent purposes, what matters is that the Court in Mathis did not decide the question now before us—that is, whether coverage of vehicles designed or adapted for overnight use takes the statute outside the generic burglary defini- tion. We now decide that latter question, and, for the reasons we have stated, we hold that it does not. III Respondent Sims argues that Arkansas’ residential Cite as: 586 U. S. ____ (2018) 9 Opinion of the Court burglary statute is too broad to count as generic burglary for a different reason, namely, because it also covers bur- glary of “a vehicle . . . [i]n which any person lives.” See supra, at 3. Sims adds that these words might cover a car in which a homeless person occasionally sleeps. Sims’ argument rests in part upon state law, and the lower courts have not considered it. As “we are a court of re- view, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005), we remand the Arkansas case to the lower courts for further proceedings. Those courts remain free to determine whether Sims properly presented the argument and to decide the merits, if appropriate. We reverse the judgment of the Sixth Circuit Court of Appeals. We vacate the judgment of the Eighth Circuit Court of Appeals and remand the case for further proceed- ings consistent with this opinion. It is so ordered. 10 UNITED STATES v. STITT Opinion Appendix of the of to opinion Court the Court APPENDIX Alaska Stat. §§11.46.300, 11.46.310, 11.81.900(b)(3) (1989) (effective 1978); Ariz. Rev. Stat. Ann. §§13– 1501(7)–(8), 13–1507, 13–1508 (1978); Ark. Code Ann. §§41–2001(1), 41–2002 (Michie 1977); Cal. Penal Code Ann. §§459, 460 (West 1970); Colo. Rev. Stat. §§18–4– 101(1)–(2), 18–4–202, 18–4–203 (1978); Conn. Gen. Stat. Ann. §§53a–100(a), 53a–101, 53a–103 (1985 Cum. Supp.); Del. Code Ann., Tit. 11, §§222(1), 824, 825 (1979); Fla. Stat. Ann. §§810.011(2), 810.02 (1976); Ga. Code Ann. §16–7–1(a) (1984); Idaho Code Ann. §18–1401 (1979); Ill. Comp. Stat., ch. 38, §19–1 (West 1985); Iowa Code §§702.12, 713.1 (1985); Kan. Stat. Ann. §§21–3715, 21– 3716 (1988) (effective 1970); La. Rev. Stat. Ann. §14:62 (West 1974 Cum. Supp.); Me. Rev. Stat. Ann., Tit. 17–A, §§2(10), 2(24), 401 (1983); Mass. Gen. Laws Ann., ch. 266, §16A (West 1970); Mont. Code Ann. §§45–2–101(40), 45– 6–204 (1983); Nev. Rev. Stat. Ann. §205.060 (1986); N. H. Rev. Stat. Ann. §635:1 (1974); N. J. Stat. Ann. §§2C:18–1, 2C:18–2 (West 1982); N. M. Stat. Ann. §§30–16–3, 30–16– 4 (2018) (effective 1978); Ohio Rev. Code Ann. §§2909.01, 2911.11, 2911.12 (Lexis 1982); Okla. Stat., Tit. 21, §1435 (1983); Ore. Rev. Stat. §§164.205, 164.215, 164.225 (1985); Pa. Stat. Ann. Tit. 18, §§3501, 3502 (Purdon 1973); S. D. Codified Laws §§22–1–2(49), 22–32–1, 22–32–3, 22–32–8 (1988) (effective 1976); Tenn. Code Ann. §39–3–406 (1982); Tex. Penal Code Ann. §§30.01, 30.02 (West 1989) (effective 1974); Utah Code Ann. §§76–6–201(1), 76–6–202 (1978); W. Va. Code Ann. §61–3–11 (Lexis 1984); Wisc. Stat. Ann. §943.10(1) (West 1982)

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term. The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes. 18 U.S. C. Those prior convictions include convictions for “burglary.” And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. We hold that it does. I The consolidated cases before us involve two defendants, 2 UNITED STATES v. STITT Opinion of the Court each of whom was convicted in a federal court of unlaw- fully possessing a firearm in violation of The maximum punishment for this offense is typically 10 years in prison. Each offender, however, had prior state burglary convictions sufficient, at least potentially, to require the sentencing judge to impose a mandatory 15- year minimum prison term under the Armed Career Crim- inal Act. That Act, as we have just said, requires an en- hanced sentence for offenders who have at least three previous convictions for certain “violent” or drug-related felonies. Those prior felonies include “any crime” that is “punishable by imprisonment for a term exceeding one year” and that also “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that pre- sents a serious potential risk of physical injury to an- other.” (emphasis added). The question here concerns the scope of the statutory word “burglary.” The relevant prior convictions of one of the unlawful firearms offenders, Victor J. Stitt, were for violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” –14– 403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-propelled vehicle that is designed or adapted for the overnight ac- commodation of persons and is actually occupied at the time of initial entry by the defendant.” 401(1)(A), (B) (emphasis added). The relevant prior convictions of the other unlawful Cite as: 586 U. S. (2018) 3 Opinion of the Court firearms offender, Jason Daniel Sims, were for violations of an Arkansas statute that prohibits burglary of a “resi- dential occupiable structure.” –39– 201(a)(1) (Michie 1997). The statute defines “[r]esidential occupiable structure” to include: “a vehicle, building, or other structure: “(A) [w]here any person lives; or “(B) [w]hich is customarily used for overnight accom- modation of persons whether or not a person is actually present.” (emphasis added). In both cases, the District Courts found that the state statutory crimes fell within the scope of the word “bur- glary” in the Armed Career Criminal Act and consequently imposed that statute’s mandatory sentence enhancement. In both cases, the relevant Federal Court of Appeals held that the statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and remanded for resentencing. See (reversing panel decision to the contrary); The Government asked us to grant certiorari to consider the question “[w]hether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’ under the Armed Career Criminal Act.” Pet. for Cert. in No. 17–765, p. i; Pet. for Cert. in No. 17–766, p. i. And, in light of uncer- tainty about the scope of the term “burglary” in the lower courts, we granted the Government’s request. Compare –863; ; United States v. White, ; United States v. Grisel, with Smith v. United States, cert. pend- ing, No. 17–7517; United 1462 (CA10 1996). 4 UNITED STATES v. STITT Opinion of the Court II A The word “burglary,” like the word “crime” itself, is ambiguous. It might refer to a kind of crime, a generic crime, as set forth in a statute (“a burglary consists of behavior that ”), or it might refer to the way in which an individual offender acted on a particular occasion (“on January 25, Jones committed a burglary on Oak Street in South San Francisco”). We have held that the words in the Armed Career Criminal Act do the first. Accordingly, we have held that the Act requires us to evaluate a prior state conviction “in terms of how the law defines the of- fense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, A prior state conviction, we have said, does not qualify as generic bur- glary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. (slip op., at 19). The case in which we first adopted this “categorical approach” is That case, which specifically considered the statutory term “burglary,” governs here and determines the outcome. In we did more than hold that the word “bur- glary” refers to a kind of generic crime rather than to the defendant’s behavior on a particular occasion. We also explained, after examining the Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied to all cases in which the Government seeks” an enhanced sentence under the Act. at 580–592. We held that this uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and entering a dwelling at night with intent to commit a fel- ony. But we added that it must include more. The classic definition, by excluding all places other than dwellings, we said, has “little relevance to modern law Cite as: 586 U. S. (2018) 5 Opinion of the Court enforcement concerns.” Perhaps for that reason, by the time the Act was passed in 1986, most States had expanded the meaning of burglary to include “structures other than dwellings.” (citing W. LaFave & A. Scott, Substantive Criminal Law (1986)). In addition, the statute’s purpose, revealed by its lan- guage, ruled out limiting the scope of “burglary” to espe- cially serious burglaries, e.g., those having elements that created a particularly serious risk of physical harm. If that had been Congress’s intent, adding the word “bur- glary” would have been unnecessary, since the (now-invalid) residual clause “already include[d] any crime that ‘in- volves conduct that presents a serious potential risk of physical injury to another.’ ” (quoting 18 U.S. C. (ii)); see Johnson v. United States, 576 U. S. – (2015) (slip op., at 5–10) (holding residual clause unconstitutionally vague). We concluded that the Act’s term “burglary” must include “ordinary,” “run-of-the-mill” burglaries as well as aggra- vated ones. And we defined the elements of generic “burglary” as “an unlawful or unprivi- leged entry into, or remaining in, a building or other struc- ture, with intent to commit a crime.” B The relevant language of the Tennessee and Arkansas statutes falls within the scope of generic burglary’s defini- tion as set forth in For one thing, we made clear in that Congress intended the definition of “bur- glary” to reflect “the generic sense in which the term [was] used in the criminal codes of most States” at the time the Act was passed. In 1986, a majority of state bur- glary statutes covered vehicles adapted or customarily used for lodging—either explicitly or by defining “building” or “structure” to include those vehicles. See, e.g., N. H. Rev. Stat. Ann. (1974) (prohibiting burglary of an 6 UNITED STATES v. STITT Opinion of the Court “[o]ccupied structure,” defined to include “any structure, vehicle, boat or place adapted for overnight accommoda- tion of persons”); Ore. Rev. Stat. 164.215, 164.225 (1985) (prohibiting burglary of a “building,” de- fined to include “any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of per- sons”); see also ALI, Model Penal Code 221.1(1) (1980) (defining “ ‘occupied structure’ ” for purposes of burglary as “any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present”); Appendix, infra (collecting burglary statutes from 1986 or earlier that covered either vehicles adapted or customarily used for overnight accommodation or a broader class of vehicles). For another thing, Congress, as we said in viewed burglary as an inherently dangerous crime because burglary “creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” ; see also An offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or customarily used for lodging runs a similar or greater risk of violent confrontation. See Spring, 80 F.3d, at 1462 (noting the greater risk of confrontation in a mobile home or camper, where “it is more difficult for the burglar to enter or escape unnoticed”). Although, as respondents point out, the risk of violence is diminished if, for example, a vehicle is only used for lodging part of the time, we have no reason to believe that Congress intended to make a part-time/full-time distinc- tion. After all, a burglary is no less a burglary because it took place at a summer home during the winter, or a commercial building during a holiday. Cf. Model Penal Code Comment 3(b), p. 72 (burglary should cover Cite as: 586 U. S. (2018) 7 Opinion of the Court places with the “apparent potential for regular occupancy”). Respondents make several additional arguments. Re- spondent Stitt argues that the Tennessee statute is too broad even under the Government’s definition of generic burglary. That is so, Stitt contends, because the statute covers the burglary of a “structure appurtenant to or connected with” a covered structure or vehicle, a provision that Stitt reads to include the burglary of even ordinary vehicles that are plugged in or otherwise appurtenant to covered structures. –14–401(1)(C). Stitt’s interpretation, however, ignores that the “appurte- nant to” provision extends only to “structure[s],” not to the separate statutory term “vehicle[s].” We therefore disagree with Stitt’s argument that the “appurtenant to” provision sweeps more broadly than generic burglary, as defined in 495 U.S., Respondents also point out that in Mathis, and other cases, we said that burglary of certain nontypical structures and vehicles fell outside the scope of the federal Act’s statutory word “burglary.” See, e.g., 495 U.S., at 599 (noting that some States “define burglary more broadly” than generic burglary by, for example, “including places, such as automobiles and vending ma- chines, other than buildings”). And they argue that the vehicles covered here are analogous to the nontypical structures and vehicles to which the Court referred in those cases. Our examination of those cases, however, convinces us that we did not decide in either case the question now before us. In for example, we referred to a Missouri break- ing and entering statute that among other things crimi- nalized breaking and entering “any boat or vessel, or railroad car.” (citing (1969); emphasis added). We did say that that particular provi- sion was beyond the scope of the federal Act. But the statute used the word “any”; it referred to ordinary boats 8 UNITED STATES v. STITT Opinion of the Court and vessels often at sea (and railroad cars often filled with cargo, not people), nowhere restricting its coverage, as here, to vehicles or structures customarily used or adapted for overnight accommodation. The statutes before us, by using these latter words, more clearly focus upon circum- stances where burglary is likely to present a serious risk of violence. In Mathis, we considered an Iowa statute that covered “any building, structure, land, water or air vehicle, or similar place adapted for overnight accommodation of persons [or used] for the storage or safekeeping of any- thing of value.” (2013). Courts have construed that statute to cover ordinary vehicles because they can be used for storage or safekeeping. See State v. Buss, ; Weaver v. Iowa, 949 F.2d 1049 (CA8 1991). That is presumably why, as we wrote in our opinion, “all parties agree[d]” that Iowa’s burglary statute “covers more conduct than generic bur- glary does.” Mathis, 579 U. S., at (slip op., at 5). The question before us was whether federal generic “burglary” includes within its scope a burglary statute that lists multiple, alternative means of satisfying one element, some of which fall within ’s generic definition and some of which fall outside it. We held, in light of the parties’ agreement that the Iowa statute covered some “outside” behavior (i.e., ordinary vehicles), that the statute did not count as a generic burglary statute. But for pre- sent purposes, what matters is that the Court in Mathis did not decide the question now before us—that is, whether coverage of vehicles designed or adapted for overnight use takes the statute outside the generic burglary defini- tion. We now decide that latter question, and, for the reasons we have stated, we hold that it does not. III Respondent Sims argues that Arkansas’ residential Cite as: 586 U. S. (2018) 9 Opinion of the Court burglary statute is too broad to count as generic burglary for a different reason, namely, because it also covers bur- glary of “a vehicle [i]n which any person lives.” See Sims adds that these words might cover a car in which a homeless person occasionally sleeps. Sims’ argument rests in part upon state law, and the lower courts have not considered it. As “we are a court of re- view, not of first view,” 718, n. 7 (2005), we remand the Arkansas case to the lower courts for further proceedings. Those courts remain free to determine whether Sims properly presented the argument and to decide the merits, if appropriate. We reverse the judgment of the Sixth Circuit Court of Appeals. We vacate the judgment of the Eighth Circuit Court of Appeals and remand the case for further proceed- ings consistent with this opinion. It is so ordered. 10 UNITED STATES v. STITT Opinion Appendix of the of to opinion Court the Court APPENDIX 11.46.310, 11.81.900(b)(3) (1989) (effective 1978); – 1501(7)–(8), 13–1507, 13–1508 (1978); Ark. Code Ann. 41–2002 (Michie 1977); Cal. Penal Code Ann. 460 (West 1970); –4– 101(1)–(2), 18–4–202, 18–4– (1978); Conn. Gen. Stat. Ann. 53a–101, 53a–103 (1985 Cum. Supp.); Del. Code Ann., Tit. 11, 824, 825 (1979); Fla. Stat. Ann. 810.02 (1976); Ga. Code Ann. (1984); –1401 (1979); Ill. Comp. Stat., ch. 38, (West 1985); Iowa Code 713.1 (1985); –3715, 21– 3716 (1988) (effective 1970); La. Rev. Stat. Ann. (West 1974 Cum. Supp.); Me. Rev. Stat. Ann., Tit. 17–A, 2(24), 401 (1983); Mass. Gen. Laws Ann., ch. 266, (West 1970); –2–101(40), 45– 6–204 (1983); (1986); N. H. Rev. Stat. Ann. (1974); N. J. Stat. Ann. 2C:18–2 ; N. M. Stat. Ann. 30–16– 4 (2018) (effective 1978); 2911.11, 2911.12 ; Okla. Stat., Tit. 21, (1983); Ore. Rev. Stat. 164.215, 164.225 (1985); Pa. Stat. Ann. Tit. 18, 3502 (Purdon 1973); S. D. Codified Laws 22–32–1, 22–32–3, 22–32–8 (1988) (effective 1976); –3–406 ; 30.02 (West 1989) (effective 1974); –6–201(1), 76–6–202 (1978); –3–11 (Lexis 1984); Wisc. Stat. Ann.

Justice Stevens

majority

Till v. SCS Credit Corp.

2004-05-17

https://www.courtlistener.com/opinion/134742/till-v-scs-credit-corp/

https://www.courtlistener.com/api/rest/v3/clusters/134742/

2003-058

To qualify for court approval under Chapter 13 of the Bankruptcy Code, an individual debtor's proposed debt adjustment plan must accommodate each allowed, secured creditor in one of three ways: (1) by obtaining the creditor's acceptance of the plan; (2) by surrendering the property securing the claim; or (3) by providing the creditor both a lien securing the claim and a promise of future property distributions (such as deferred cash payments) whose total "value, as of the effective date of the plan, . . . is not less than the allowed amount of such claim."[1] The third alternative is *469 commonly known as the "cramdown option" because it may be enforced over a claim holder's objection.[2]Associates Commercial Corp. v. Rash, 520 U.S. 953, 957 (1997). Plans that invoke the cramdown power often provide for installment payments over a period of years rather than a single payment.[3] In such circumstances, the amount of each installment must be calibrated to ensure that, over time, the creditor receives disbursements whose total present value[4] equals or exceeds that of the allowed claim. The proceedings in this case that led to our grant of certiorari identified four different methods of determining the appropriate method with which to perform that calibration. Indeed, the Bankruptcy Judge, the District Court, the Court of Appeals majority, and the dissenting judge each endorsed a different approach. We detail the underlying facts and describe each of those approaches before setting forth our judgment as to which approach best meets the purposes of the Bankruptcy Code. I On October 2, 1998, petitioners Lee and Amy Till, residents of Kokomo, Indiana, purchased a used truck from Instant Auto Finance for $6,395 plus $330.75 in fees and taxes. *470 They made a $300 downpayment and financed the balance of the purchase price by entering into a retail installment contract that Instant Auto immediately assigned to respondent, SCS Credit Corporation. Petitioners' initial indebtedness amounted to $8,285.24 — the $6,425.75 balance of the truck purchase plus a finance charge of 21% per year for 136 weeks, or $1,859.49. Under the contract, petitioners agreed to make 68 biweekly payments to cover this debt; Instant Auto — and subsequently respondent — retained a purchase money security interest that gave it the right to repossess the truck if petitioners defaulted under the contract. On October 25, 1999, petitioners, by then in default on their payments to respondent, filed a joint petition for relief under Chapter 13 of the Bankruptcy Code. At the time of the filing, respondent's outstanding claim amounted to $4,894.89, but the parties agreed that the truck securing the claim was worth only $4,000. App. 16-17. In accordance with the Bankruptcy Code, therefore, respondent's secured claim was limited to $4,000, and the $894.89 balance was unsecured.[5] Petitioners' filing automatically stayed debt-collection activity by their various creditors, including the Internal Revenue Service (IRS), respondent, three other holders of secured claims, and unidentified unsecured creditors. In addition, the filing created a bankruptcy estate, administered by a trustee, which consisted of petitioners' property, including the truck.[6] *471 Petitioners' proposed debt adjustment plan called for them to submit their future earnings to the supervision and control of the Bankruptcy Court for three years, and to assign $740 of their wages to the trustee each month.[7] App. to Pet. for Cert. 76a-81a. The plan charged the trustee with distributing these monthly wage assignments to pay, in order of priority: (1) administrative costs; (2) the IRS's priority tax claim; (3) secured creditors' claims; and finally, (4) unsecured creditors' claims. Id., at 77a-79a. The proposed plan also provided that petitioners would pay interest on the secured portion of respondent's claim at a rate of 9.5% per year. Petitioners arrived at this "prime-plus" or "formula rate" by augmenting the national prime rate of approximately 8% (applied by banks when making low-risk loans) to account for the risk of nonpayment posed by borrowers in their financial position. Respondent objected to the proposed rate, contending that the company was "entitled to interest at the rate of 21%, which is the rate . . . it would obtain if it could foreclose on the vehicle and reinvest the proceeds in loans of equivalent duration and risk as the loan" originally made to petitioners. App. 19-20. At the hearing on its objection, respondent presented expert testimony establishing that it uniformly charges 21% interest on so-called "subprime" loans, or loans to borrowers with poor credit ratings, and that other lenders in the subprime market also charge that rate. Petitioners countered with the testimony of an Indiana University-Purdue University Indianapolis economics professor, who acknowledged that he had only limited familiarity with the subprime auto lending market, but described the 9.5% formula rate as "very reasonable" given that Chapter 13 plans are "supposed to be *472 financially feasible."[8]Id., at 43-44. Moreover, the professor noted that respondent's exposure was "fairly limited because [petitioners] are under the supervision of the court." Id., at 43. The bankruptcy trustee also filed comments supporting the formula rate as, among other things, easily ascertainable, closely tied to the "condition of the financial market," and independent of the financial circumstances of any particular lender. App. to Pet. for Cert. 41a-42a. Accepting petitioners' evidence, the Bankruptcy Court overruled respondent's objection and confirmed the proposed plan. The District Court reversed. It understood Seventh Circuit precedent to require that bankruptcy courts set cramdown interest rates at the level the creditor could have obtained if it had foreclosed on the loan, sold the collateral, and reinvested the proceeds in loans of equivalent duration and risk. Citing respondent's unrebutted testimony about the market for subprime loans, the court concluded that 21% was the appropriate rate. Id., at 38a. On appeal, the Seventh Circuit endorsed a slightly modified version of the District Court's "coerced" or "forced loan" approach. In re Till, 301 F.3d 583, 591 (2002). Specifically, the majority agreed with the District Court that, in a cramdown proceeding, the inquiry should focus on the interest rate "that the creditor in question would obtain in making a new loan in the same industry to a debtor who is similarly situated, although not in bankruptcy." Id., at 592. To approximate that new loan rate, the majority looked to the parties' prebankruptcy contract rate (21%). The court recognized, however, that using the contract rate would not "duplicat[e] precisely . . . the present value of the collateral to the creditor" because loans to bankrupt, court-supervised debtors "involve some risks that would not be incurred in a *473 new loan to a debtor not in default" and also produce "some economies." Ibid. To correct for these inaccuracies, the majority held that the original contract rate should "serve as a presumptive [cramdown] rate," which either the creditor or the debtor could challenge with evidence that a higher or lower rate should apply. Ibid. Accordingly, the court remanded the case to the Bankruptcy Court to afford petitioners and respondent an opportunity to rebut the presumptive 21% rate.[9] Dissenting, Judge Rovner argued that the majority's presumptive contract rate approach overcompensates secured creditors because it fails to account for costs a creditor would have to incur in issuing a new loan. Rather than focusing on the market for comparable loans, Judge Rovner advocated the Bankruptcy Court's formula approach. Id., at 596. Although Judge Rovner noted that the rates produced by either the formula or the cost of funds approach might be "piddling" relative to the coerced loan rate, she suggested courts should "consider the extent to which the creditor has already been compensated for . . . the risk that the debtor will be unable to discharge his obligations under the reorganization plan . . . in the rate of interest that it charged to the debtor in return for the original loan." Ibid. We granted certiorari and now reverse. 539 U.S. 925 (2003). II The Bankruptcy Code provides little guidance as to which of the rates of interest advocated by the four opinions in this case—the formula rate, the coerced loan rate, the presumptive contract rate, or the cost of funds rate—Congress had in mind when it adopted the cramdown provision. That provision, 11 U.S. C. § 1325(a)(5)(B), does not mention the term "discount rate" or the word "interest." Rather, it simply *474 requires bankruptcy courts to ensure that the property to be distributed to a particular secured creditor over the life of a bankruptcy plan has a total "value, as of the effective date of the plan," that equals or exceeds the value of the creditor's allowed secured claim—in this case, $4,000. § 1325(a)(5)(B)(ii). That command is easily satisfied when the plan provides for a lump-sum payment to the creditor. Matters are not so simple, however, when the debt is to be discharged by a series of payments over time. A debtor's promise of future payments is worth less than an immediate payment of the same total amount because the creditor cannot use the money right away, inflation may cause the value of the dollar to decline before the debtor pays, and there is always some risk of nonpayment. The challenge for bankruptcy courts reviewing such repayment schemes, therefore, is to choose an interest rate sufficient to compensate the creditor for these concerns. Three important considerations govern that choice. First, the Bankruptcy Code includes numerous provisions that, like the cramdown provision, require a court to "discoun[t] . . . [a] stream of deferred payments back to the[ir] present dollar value," Rake v. Wade, 508 U.S. 464, 472, n. 8 (1993), to ensure that a creditor receives at least the value of its claim.[10] We think it likely that Congress intended bankruptcy judges and trustees to follow essentially the same approach when choosing an appropriate interest rate under any of these provisions. Moreover, we think Congress would favor an approach that is familiar in the financial *475 community and that minimizes the need for expensive evidentiary proceedings. Second, Chapter 13 expressly authorizes a bankruptcy court to modify the rights of any creditor whose claim is secured by an interest in anything other than "real property that is the debtor's principal residence." 11 U.S. C. § 1322(b)(2).[11] Thus, in cases like this involving secured interests in personal property, the court's authority to modify the number, timing, or amount of the installment payments from those set forth in the debtor's original contract is perfectly clear. Further, the potential need to modify the loan terms to account for intervening changes in circumstances is also clear: On the one hand, the fact of the bankruptcy establishes that the debtor is overextended and thus poses a significant risk of default; on the other hand, the postbankruptcy obligor is no longer the individual debtor but the court-supervised estate, and the risk of default is thus somewhat reduced.[12] *476 Third, from the point of view of a creditor, the cramdown provision mandates an objective rather than a subjective inquiry.[13] That is, although § 1325(a)(5)(B) entitles the creditor to property whose present value objectively equals or exceeds the value of the collateral, it does not require that the terms of the cramdown loan match the terms to which the debtor and creditor agreed prebankruptcy, nor does it require that the cramdown terms make the creditor subjectively indifferent between present foreclosure and future payment. Indeed, the very idea of a "cramdown" loan precludes the latter result: By definition, a creditor forced to accept such a loan would prefer instead to foreclose.[14] Thus, a court choosing a cramdown interest rate need not consider the creditor's individual circumstances, such as its prebankruptcy dealings with the debtor or the alternative loans it *477 could make if permitted to foreclose.[15] Rather, the court should aim to treat similarly situated creditors similarly,[16] and to ensure that an objective economic analysis would suggest the debtor's interest payments will adequately compensate all such creditors for the time value of their money and the risk of default. III These considerations lead us to reject the coerced loan, presumptive contract rate, and cost of funds approaches. Each of these approaches is complicated, imposes significant evidentiary costs, and aims to make each individual creditor whole rather than to ensure the debtor's payments have the required present value. For example, the coerced loan approach requires bankruptcy courts to consider evidence about the market for comparable loans to similar (though nonbankrupt) debtors—an inquiry far removed from such courts' usual task of evaluating debtors' financial circumstances and the feasibility of their debt adjustment plans. In addition, the approach overcompensates creditors because the market lending rate must be high enough to cover factors, like lenders' transaction costs and overall profits, that are no longer relevant in the context of court-administered and court-supervised cramdown loans. Like the coerced loan approach, the presumptive contract rate approach improperly focuses on the creditor's potential use of the proceeds of a foreclosure sale. In addition, although the approach permits a debtor to introduce some evidence about each creditor, thereby enabling the court to tailor the interest rate more closely to the creditor's financial circumstances and reducing the likelihood that the creditor *478 will be substantially overcompensated, that right comes at a cost: The debtor must obtain information about the creditor's costs of overhead, financial circumstances, and lending practices to rebut the presumptive contract rate. Also, the approach produces absurd results, entitling "inefficient, poorly managed lenders" with lower profit margins to obtain higher cramdown rates than "well managed, better capitalized lenders." 2 K. Lundin, Chapter 13 Bankruptcy § 112.1, p. 112-8 (3d ed. 2000). Finally, because the approach relies heavily on a creditor's prior dealings with the debtor, similarly situated creditors may end up with vastly different cramdown rates.[17] The cost of funds approach, too, is improperly aimed. Although it rightly disregards the now-irrelevant terms of the parties' original contract, it mistakenly focuses on the credit-worthiness of the creditor rather than the debtor. In addition, the approach has many of the other flaws of the coerced loan and presumptive contract rate approaches. For example, like the presumptive contract rate approach, the cost of funds approach imposes a significant evidentiary burden, as a debtor seeking to rebut a creditor's asserted cost of borrowing must introduce expert testimony about the creditor's financial condition. Also, under this approach, a credit-worthy lender with a low cost of borrowing may obtain a lower cramdown rate than a financially unsound, fly-by-night lender. IV The formula approach has none of these defects. Taking its cue from ordinary lending practices, the approach begins *479 by looking to the national prime rate, reported daily in the press, which reflects the financial market's estimate of the amount a commercial bank should charge a creditworthy commercial borrower to compensate for the opportunity costs of the loan, the risk of inflation, and the relatively slight risk of default.[18] Because bankrupt debtors typically pose a greater risk of nonpayment than solvent commercial borrowers, the approach then requires a bankruptcy court to adjust the prime rate accordingly. The appropriate size of that risk adjustment depends, of course, on such factors as the circumstances of the estate, the nature of the security, and the duration and feasibility of the reorganization plan. The court must therefore hold a hearing at which the debtor and any creditors may present evidence about the appropriate risk adjustment. Some of this evidence will be included in the debtor's bankruptcy filings, however, so the debtor and creditors may not incur significant additional expense. Moreover, starting from a concededly low estimate and adjusting upward places the evidentiary burden squarely on the creditors, who are likely to have readier access to any information absent from the debtor's filing (such as evidence about the "liquidity of the collateral market," post, at 499 (SCALIA, J., dissenting)). Finally, many of the factors relevant to the adjustment fall squarely within the bankruptcy court's area of expertise. Thus, unlike the coerced loan, presumptive contract rate, and cost of funds approaches, the formula approach entails a straightforward, familiar, and objective inquiry, and minimizes the need for potentially costly additional evidentiary proceedings. Moreover, the resulting "prime-plus" rate of interest depends only on the state of financial markets, the circumstances of the bankruptcy estate, and the characteristics of the loan, not on the creditor's circumstances or its prior interactions with the debtor. For these reasons, the *480 prime-plus or formula rate best comports with the purposes of the Bankruptcy Code.[19] We do not decide the proper scale for the risk adjustment, as the issue is not before us. The Bankruptcy Court in this case approved a risk adjustment of 1.5%, App. to Pet. for Cert. 44a-73a, and other courts have generally approved adjustments of 1% to 3%, see In re Valenti, 105 F.3d 55, 64 (CA2) (collecting cases), abrogated on other grounds by Associates Commercial Corp. v. Rash, 520 U.S. 953 (1997). Respondent's core argument is that a risk adjustment in this range is entirely inadequate to compensate a creditor for the real risk that the plan will fail. There is some dispute about the true scale of that risk—respondent claims that more than 60% of Chapter 13 plans fail, Brief for Respondent 25, but petitioners argue that the failure rate for approved Chapter 13 plans is much lower, Tr. of Oral Arg. 9. We need not resolve that dispute. It is sufficient for our purposes to note that, under 11 U.S. C. § 1325(a)(6), a court may not approve a plan unless, after considering all creditors' objections and receiving the advice of the trustee, the judge is persuaded that "the debtor will be able to make all payments under the plan and to comply with the plan." Ibid. Together with the cramdown provision, this requirement obligates the court to select a rate high enough to compensate the creditor for its risk but not so high as to doom the plan. If the court determines that the likelihood of default is so high as to necessitate *481 an "eye-popping" interest rate, 301 F.3d, at 593 (Rovner, J., dissenting), the plan probably should not be confirmed. V The dissent's endorsement of the presumptive contract rate approach rests on two assumptions: (1) "subprime lending markets are competitive and therefore largely efficient"; and (2) the risk of default in Chapter 13 is normally no less than the risk of default at the time of the original loan. Post, at 492-493. Although the Bankruptcy Code provides little guidance on the question, we think it highly unlikely that Congress would endorse either premise. First, the dissent assumes that subprime loans are negotiated between fully informed buyers and sellers in a classic free market. But there is no basis for concluding that Congress relied on this assumption when it enacted Chapter 13. Moreover, several considerations suggest that the subprime market is not, in fact, perfectly competitive. To begin with, used vehicles are regularly sold by means of tie-in transactions, in which the price of the vehicle is the subject of negotiation, while the terms of the financing are dictated by the seller.[20] In addition, there is extensive federal[21]*482 and state[22] regulation of subprime lending, which not only itself distorts the market, but also evinces regulators' belief that unregulated subprime lenders would exploit borrowers' ignorance and charge rates above what a competitive market would allow.[23] Indeed, Congress enacted the Truth in Lending Act in part because it believed "consumers would individually benefit not only from the more informed use of credit, but also from heightened competition which would result from more knowledgeable credit shopping." S. Rep. No. 96-368, p. 16 (1979).[24] Second, the dissent apparently believes that the debtor's prebankruptcy default—on a loan made in a market in which creditors commonly charge the maximum rate of interest allowed by law, Brief for Respondent 16, and in which neither creditors nor debtors have the protections afforded by Chapter 13—translates into a high probability that the same debtor's confirmed Chapter 13 plan will fail. In our view, however, Congress intended to create a program under which plans that qualify for confirmation have a high probability of success. Perhaps bankruptcy judges currently confirm too *483 many risky plans, but the solution is to confirm fewer such plans, not to set default cramdown rates at absurdly high levels, thereby increasing the risk of default. Indeed, as JUSTICE THOMAS demonstrates, post, at 487 (opinion concurring in judgment), the text of § 1325(a)(5) (B)(ii) may be read to support the conclusion that Congress did not intend the cramdown rate to include any compensation for the risk of default.[25] That reading is consistent with a view that Congress believed Chapter 13's protections to be so effective as to make the risk of default negligible. Because our decision in Rash assumes that cramdown interest rates are adjusted to "offset," to the extent possible, the risk of default, 520 U.S., at 962-963, and because so many judges who have considered the issue (including the authors of the four earlier opinions in this case) have rejected the risk-free approach, we think it too late in the day to endorse that approach now. Of course, if the text of the statute required such an approach, that would be the end of the matter. We think, however, that § 1325(a)(5)(B)(ii)'s reference to "value, as of the effective date of the plan, of property to be distributed under the plan" is better read to incorporate all of the commonly understood components of "present value," including any risk of nonpayment. JUSTICE THOMAS' reading does emphasize, though, that a presumption that bankruptcy plans will succeed is more consistent with Congress' statutory scheme than the dissent's more cynical focus on bankrupt debtors' "financial instability and . . . proclivity to seek legal protection," post, at 493. Furthermore, the dissent's two assumptions do not necessarily favor the presumptive contract rate approach. For one thing, the cramdown provision applies not only to sub-prime *484 loans but also to prime loans negotiated prior to the change in circumstance (job loss, for example) that rendered the debtor insolvent. Relatedly, the provision also applies in instances in which national or local economic conditions drastically improved or declined after the original loan was issued but before the debtor filed for bankruptcy. In either case, there is every reason to think that a properly risk-adjusted prime rate will provide a better estimate of the creditor's current costs and exposure than a contract rate set in different times. Even more important, if all relevant information about the debtor's circumstances, the creditor's circumstances, the nature of the collateral, and the market for comparable loans were equally available to both debtor and creditor, then in theory the formula and presumptive contract rate approaches would yield the same final interest rate. Thus, we principally differ with the dissent not over what final rate courts should adopt but over which party (creditor or debtor) should bear the burden of rebutting the presumptive rate (prime or contract, respectively). JUSTICE SCALIA identifies four "relevant factors bearing on risk premium[:] (1) the probability of plan failure; (2) the rate of collateral depreciation; (3) the liquidity of the collateral market; and (4) the administrative expenses of enforcement." Post, at 499. In our view, any information debtors have about any of these factors is likely to be included in their bankruptcy filings, while the remaining information will be far more accessible to creditors (who must collect information about their lending markets to remain competitive) than to individual debtors (whose only experience with those markets might be the single loan at issue in the case). Thus, the formula approach, which begins with a concededly low estimate of the appropriate interest rate and requires the creditor to present evidence supporting a higher rate, places the evidentiary burden on the more knowledgeable *485 party, thereby facilitating more accurate calculation of the appropriate interest rate. If the rather sketchy data uncovered by the dissent support an argument that Chapter 13 of the Bankruptcy Code should mandate application of the presumptive contract rate approach (rather than merely an argument that bankruptcy judges should exercise greater caution before approving debt adjustment plans), those data should be forwarded to Congress. We are not persuaded, however, that the data undermine our interpretation of the statutory scheme Congress has enacted. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to remand the case to the Bankruptcy Court for further proceedings consistent with this opinion. It is so ordered. JUSTICE THOMAS, concurring in the judgment.

To qualify for court approval under Chapter 13 of the Bankruptcy Code, an individual debtor's proposed debt adjustment plan must accommodate each allowed, secured creditor in one of three ways: (1) by obtaining the creditor's acceptance of the plan; (2) by surrendering the property securing the claim; or (3) by providing the creditor both a lien securing the claim and a promise of future property distributions (such as deferred cash payments) whose total "value, as of the effective date of the plan, is not less than the allowed amount of such claim."[1] The third alternative is *469 commonly known as the "cramdown option" because it may be enforced over a claim holder's objection.[2]Associates Commercial Plans that invoke the cramdown power often provide for installment payments over a period of years rather than a single payment.[3] In such circumstances, the amount of each installment must be calibrated to ensure that, over time, the creditor receives disbursements whose total present value[4] equals or exceeds that of the allowed claim. The proceedings in this case that led to our grant of certiorari identified four different methods of determining the appropriate method with which to perform that calibration. Indeed, the Bankruptcy Judge, the District Court, the Court of Appeals majority, and the dissenting judge each endorsed a different approach. We detail the underlying facts and describe each of those approaches before setting forth our judgment as to which approach best meets the purposes of the Bankruptcy Code. I On October 2, 1998, petitioners Lee and Amy Till, residents of Kokomo, Indiana, purchased a used truck from Instant Auto Finance for $6,395 plus $330.75 in fees and taxes. *470 They made a $300 downpayment and financed the balance of the purchase price by entering into a retail installment contract that Instant Auto immediately assigned to respondent, SCS Credit Corporation. Petitioners' initial indebtedness amounted to $8,285.24 — the $6,425.75 balance of the truck purchase plus a finance charge of 21% per year for 136 weeks, or $1,859.49. Under the contract, petitioners agreed to make 68 biweekly payments to cover this debt; Instant Auto — and subsequently respondent — retained a purchase money security interest that gave it the right to repossess the truck if petitioners ed under the contract. On October 25, 1999, petitioners, by then in on their payments to respondent, filed a joint petition for relief under Chapter 13 of the Bankruptcy Code. At the time of the filing, respondent's outstanding claim amounted to $4,894.89, but the parties agreed that the truck securing the claim was worth only $4,000. App. 16-17. In accordance with the Bankruptcy Code, therefore, respondent's secured claim was limited to $4,000, and the $894.89 balance was unsecured.[5] Petitioners' filing automatically stayed debt-collection activity by their various creditors, including the Internal Revenue Service (IRS), respondent, three other holders of secured claims, and unidentified unsecured creditors. In addition, the filing created a bankruptcy estate, administered by a trustee, which consisted of petitioners' property, including the truck.[6] *471 Petitioners' proposed debt adjustment plan called for them to submit their future earnings to the supervision and control of the Bankruptcy Court for three years, and to assign $740 of their wages to the trustee each month.[7] App. to Pet. for Cert. 76a-81a. The plan charged the trustee with distributing these monthly wage assignments to pay, in order of priority: (1) administrative costs; (2) the IRS's priority tax claim; (3) secured creditors' claims; and finally, (4) unsecured creditors' claims. at 77a-79a. The proposed plan also provided that petitioners would pay interest on the secured portion of respondent's claim at a rate of 9.5% per year. Petitioners arrived at this "prime-plus" or "formula rate" by augmenting the national prime rate of approximately 8% (applied by banks when making low-risk loans) to account for the risk of nonpayment posed by borrowers in their financial position. Respondent objected to the proposed rate, contending that the company was "entitled to interest at the rate of 21%, which is the rate it would obtain if it could foreclose on the vehicle and reinvest the proceeds in loans of equivalent duration and risk as the loan" originally made to petitioners. App. 19-20. At the hearing on its objection, respondent presented expert testimony establishing that it uniformly charges 21% interest on so-called "subprime" loans, or loans to borrowers with poor credit ratings, and that other lenders in the subprime market also charge that rate. Petitioners countered with the testimony of an Indiana University-Purdue University Indianapolis economics professor, who acknowledged that he had only limited familiarity with the subprime auto lending market, but described the 9.5% formula rate as "very reasonable" given that Chapter 13 plans are "supposed to be *472 financially feasible."[8] -44. Moreover, the professor noted that respondent's exposure was "fairly limited because [petitioners] are under the supervision of the court." The bankruptcy trustee also filed comments supporting the formula rate as, among other things, easily ascertainable, closely tied to the "condition of the financial market," and independent of the financial circumstances of any particular lender. App. to Pet. for Cert. 41a-42a. Accepting petitioners' evidence, the Bankruptcy Court overruled respondent's objection and confirmed the proposed plan. The District Court reversed. It understood Seventh Circuit precedent to require that bankruptcy courts set cramdown interest rates at the level the creditor could have obtained if it had foreclosed on the loan, sold the collateral, and reinvested the proceeds in loans of equivalent duration and risk. Citing respondent's unrebutted testimony about the market for subprime loans, the court concluded that 21% was the appropriate rate. at 38a. On appeal, the Seventh Circuit endorsed a slightly modified version of the District Court's "coerced" or "forced loan" approach. In re Till, Specifically, the majority agreed with the District Court that, in a cramdown proceeding, the inquiry should focus on the interest rate "that the creditor in question would obtain in making a new loan in the same industry to a debtor who is similarly situated, although not in bankruptcy." To approximate that new loan rate, the majority looked to the parties' prebankruptcy contract rate (21%). The court recognized, however, that using the contract rate would not "duplicat[e] precisely the present value of the collateral to the creditor" because loans to bankrupt, court-supervised debtors "involve some risks that would not be incurred in a *473 new loan to a debtor not in " and also produce "some economies." To correct for these inaccuracies, the majority held that the original contract rate should "serve as a presumptive [cramdown] rate," which either the creditor or the debtor could challenge with evidence that a higher or lower rate should apply. Accordingly, the court remanded the case to the Bankruptcy Court to afford petitioners and respondent an opportunity to rebut the presumptive 21% rate.[9] Dissenting, Judge Rovner argued that the majority's presumptive contract rate approach overcompensates secured creditors because it fails to account for costs a creditor would have to incur in issuing a new loan. Rather than focusing on the market for comparable loans, Judge Rovner advocated the Bankruptcy Court's formula approach. Although Judge Rovner noted that the rates produced by either the formula or the cost of funds approach might be "piddling" relative to the coerced loan rate, she suggested courts should "consider the extent to which the creditor has already been compensated for the risk that the debtor will be unable to discharge his obligations under the reorganization plan in the rate of interest that it charged to the debtor in return for the original loan." We granted certiorari and now reverse. II The Bankruptcy Code provides little guidance as to which of the rates of interest advocated by the four opinions in this case—the formula rate, the coerced loan rate, the presumptive contract rate, or the cost of funds rate—Congress had in mind when it adopted the cramdown provision. That provision, 11 U.S. C. 1325(a)(5)(B), does not mention the term "discount rate" or the word "interest." Rather, it simply *474 requires bankruptcy courts to ensure that the property to be distributed to a particular secured creditor over the life of a bankruptcy plan has a total "value, as of the effective date of the plan," that equals or exceeds the value of the creditor's allowed secured claim—in this case, $4,000. 1325(a)(5)(B)(ii). That command is easily satisfied when the plan provides for a lump-sum payment to the creditor. Matters are not so simple, however, when the debt is to be discharged by a series of payments over time. A debtor's promise of future payments is worth less than an immediate payment of the same total amount because the creditor cannot use the money right away, inflation may cause the value of the dollar to decline before the debtor pays, and there is always some risk of nonpayment. The challenge for bankruptcy courts reviewing such repayment schemes, therefore, is to choose an interest rate sufficient to compensate the creditor for these concerns. Three important considerations govern that choice. First, the Bankruptcy Code includes numerous provisions that, like the cramdown provision, require a court to "discoun[t] [a] stream of deferred payments back to the[ir] present dollar value," to ensure that a creditor receives at least the value of its claim.[10] We think it likely that Congress intended bankruptcy judges and trustees to follow essentially the same approach when choosing an appropriate interest rate under any of these provisions. Moreover, we think Congress would favor an approach that is familiar in the financial *475 community and that minimizes the need for expensive evidentiary proceedings. Second, Chapter 13 expressly authorizes a bankruptcy court to modify the rights of any creditor whose claim is secured by an interest in anything other than "real property that is the debtor's principal residence." 11 U.S. C. 1322(b)(2).[11] Thus, in cases like this involving secured interests in personal property, the court's authority to modify the number, timing, or amount of the installment payments from those set forth in the debtor's original contract is perfectly clear. Further, the potential need to modify the loan terms to account for intervening changes in circumstances is also clear: On the one hand, the fact of the bankruptcy establishes that the debtor is overextended and thus poses a significant risk of ; on the other hand, the postbankruptcy obligor is no longer the individual debtor but the court-supervised estate, and the risk of is thus somewhat reduced.[12] *476 Third, from the point of view of a creditor, the cramdown provision mandates an objective rather than a subjective inquiry.[13] That is, although 1325(a)(5)(B) entitles the creditor to property whose present value objectively equals or exceeds the value of the collateral, it does not require that the terms of the cramdown loan match the terms to which the debtor and creditor agreed prebankruptcy, nor does it require that the cramdown terms make the creditor subjectively indifferent between present foreclosure and future payment. Indeed, the very idea of a "cramdown" loan precludes the latter result: By definition, a creditor forced to accept such a loan would prefer instead to foreclose.[14] Thus, a court choosing a cramdown interest rate need not consider the creditor's individual circumstances, such as its prebankruptcy dealings with the debtor or the alternative loans it *477 could make if permitted to foreclose.[15] Rather, the court should aim to treat similarly situated creditors similarly,[16] and to ensure that an objective economic analysis would suggest the debtor's interest payments will adequately compensate all such creditors for the time value of their money and the risk of III These considerations lead us to reject the coerced loan, presumptive contract rate, and cost of funds approaches. Each of these approaches is complicated, imposes significant evidentiary costs, and aims to make each individual creditor whole rather than to ensure the debtor's payments have the required present value. For example, the coerced loan approach requires bankruptcy courts to consider evidence about the market for comparable loans to similar (though nonbankrupt) debtors—an inquiry far removed from such courts' usual task of evaluating debtors' financial circumstances and the feasibility of their debt adjustment plans. In addition, the approach overcompensates creditors because the market lending rate must be high enough to cover factors, like lenders' transaction costs and overall profits, that are no longer relevant in the context of court-administered and court-supervised cramdown loans. Like the coerced loan approach, the presumptive contract rate approach improperly focuses on the creditor's potential use of the proceeds of a foreclosure sale. In addition, although the approach permits a debtor to introduce some evidence about each creditor, thereby enabling the court to tailor the interest rate more closely to the creditor's financial circumstances and reducing the likelihood that the creditor *478 will be substantially overcompensated, that right comes at a cost: The debtor must obtain information about the creditor's costs of overhead, financial circumstances, and lending practices to rebut the presumptive contract rate. Also, the approach produces absurd results, entitling "inefficient, poorly managed lenders" with lower profit margins to obtain higher cramdown rates than "well managed, better capitalized lenders." 2 K. Lundin, Chapter 13 Bankruptcy 112.1, p. 112-8 (3d ed. 2000). Finally, because the approach relies heavily on a creditor's prior dealings with the debtor, similarly situated creditors may end up with vastly different cramdown rates.[17] The cost of funds approach, too, is improperly aimed. Although it rightly disregards the now-irrelevant terms of the parties' original contract, it mistakenly focuses on the credit-worthiness of the creditor rather than the debtor. In addition, the approach has many of the other flaws of the coerced loan and presumptive contract rate approaches. For example, like the presumptive contract rate approach, the cost of funds approach imposes a significant evidentiary burden, as a debtor seeking to rebut a creditor's asserted cost of borrowing must introduce expert testimony about the creditor's financial condition. Also, under this approach, a credit-worthy lender with a low cost of borrowing may obtain a lower cramdown rate than a financially unsound, fly-by-night lender. IV The formula approach has none of these defects. Taking its cue from ordinary lending practices, the approach begins *479 by looking to the national prime rate, reported daily in the press, which reflects the financial market's estimate of the amount a commercial bank should charge a creditworthy commercial borrower to compensate for the opportunity costs of the loan, the risk of inflation, and the relatively slight risk of[18] Because bankrupt debtors typically pose a greater risk of nonpayment than solvent commercial borrowers, the approach then requires a bankruptcy court to adjust the prime rate accordingly. The appropriate size of that risk adjustment depends, of course, on such factors as the circumstances of the estate, the nature of the security, and the duration and feasibility of the reorganization plan. The court must therefore hold a hearing at which the debtor and any creditors may present evidence about the appropriate risk adjustment. Some of this evidence will be included in the debtor's bankruptcy filings, however, so the debtor and creditors may not incur significant additional expense. Moreover, starting from a concededly low estimate and adjusting upward places the evidentiary burden squarely on the creditors, who are likely to have readier access to any information absent from the debtor's filing (such as evidence about the "liquidity of the collateral market," post, at 499 (SCALIA, J., dissenting)). Finally, many of the factors relevant to the adjustment fall squarely within the bankruptcy court's area of expertise. Thus, unlike the coerced loan, presumptive contract rate, and cost of funds approaches, the formula approach entails a straightforward, familiar, and objective inquiry, and minimizes the need for potentially costly additional evidentiary proceedings. Moreover, the resulting "prime-plus" rate of interest depends only on the state of financial markets, the circumstances of the bankruptcy estate, and the characteristics of the loan, not on the creditor's circumstances or its prior interactions with the debtor. For these reasons, the *480 prime-plus or formula rate best comports with the purposes of the Bankruptcy Code.[19] We do not decide the proper scale for the risk adjustment, as the issue is not before us. The Bankruptcy Court in this case approved a risk adjustment of 1.5%, App. to Pet. for Cert. 44a-73a, and other courts have generally approved adjustments of 1% to 3%, see In re Valenti, (CA2) (collecting cases), abrogated on other grounds by Associates Commercial Respondent's core argument is that a risk adjustment in this range is entirely inadequate to compensate a creditor for the real risk that the plan will fail. There is some dispute about the true scale of that risk—respondent claims that more than 60% of Chapter 13 plans fail, Brief for Respondent 25, but petitioners argue that the failure rate for approved Chapter 13 plans is much lower, Tr. of Oral Arg. 9. We need not resolve that dispute. It is sufficient for our purposes to note that, under 11 U.S. C. 1325(a)(6), a court may not approve a plan unless, after considering all creditors' objections and receiving the advice of the trustee, the judge is persuaded that "the debtor will be able to make all payments under the plan and to comply with the plan." Together with the cramdown provision, this requirement obligates the court to select a rate high enough to compensate the creditor for its risk but not so high as to doom the plan. If the court determines that the likelihood of is so high as to necessitate *481 an "eye-popping" interest rate, the plan probably should not be confirmed. V The dissent's endorsement of the presumptive contract rate approach rests on two assumptions: (1) "subprime lending markets are competitive and therefore largely efficient"; and (2) the risk of in Chapter 13 is normally no less than the risk of at the time of the original loan. Post, at 492-493. Although the Bankruptcy Code provides little guidance on the question, we think it highly unlikely that Congress would endorse either premise. First, the dissent assumes that subprime loans are negotiated between fully informed buyers and sellers in a classic free market. But there is no basis for concluding that Congress relied on this assumption when it enacted Chapter 13. Moreover, several considerations suggest that the subprime market is not, in fact, perfectly competitive. To begin with, used vehicles are regularly sold by means of tie-in transactions, in which the price of the vehicle is the subject of negotiation, while the terms of the financing are dictated by the seller.[20] In addition, there is extensive federal[21]*482 and state[22] regulation of subprime lending, which not only itself distorts the market, but also evinces regulators' belief that unregulated subprime lenders would exploit borrowers' ignorance and charge rates above what a competitive market would allow.[23] Indeed, Congress enacted the Truth in Lending Act in part because it believed "consumers would individually benefit not only from the more informed use of credit, but also from heightened competition which would result from more knowledgeable credit shopping." S. Rep. No. 96-368, p. 16 (1979).[24] Second, the dissent apparently believes that the debtor's prebankruptcy —on a loan made in a market in which creditors commonly charge the maximum rate of interest allowed by law, Brief for Respondent 16, and in which neither creditors nor debtors have the protections afforded by Chapter 13—translates into a high probability that the same debtor's confirmed Chapter 13 plan will fail. In our view, however, Congress intended to create a program under which plans that qualify for confirmation have a high probability of success. Perhaps bankruptcy judges currently confirm too *483 many risky plans, but the solution is to confirm fewer such plans, not to set cramdown rates at absurdly high levels, thereby increasing the risk of Indeed, as JUSTICE THOMAS demonstrates, post, at 487 (opinion concurring in judgment), the text of 1325(a)(5) (B)(ii) may be read to support the conclusion that Congress did not intend the cramdown rate to include any compensation for the risk of[25] That reading is consistent with a view that Congress believed Chapter 13's protections to be so effective as to make the risk of negligible. Because our decision in Rash assumes that cramdown interest rates are adjusted to "offset," to the extent possible, the risk of -963, and because so many judges who have considered the issue (including the authors of the four earlier opinions in this case) have rejected the risk-free approach, we think it too late in the day to endorse that approach now. Of course, if the text of the statute required such an approach, that would be the end of the matter. We think, however, that 1325(a)(5)(B)(ii)'s reference to "value, as of the effective date of the plan, of property to be distributed under the plan" is better read to incorporate all of the commonly understood components of "present value," including any risk of nonpayment. JUSTICE THOMAS' reading does emphasize, though, that a presumption that bankruptcy plans will succeed is more consistent with Congress' statutory scheme than the dissent's more cynical focus on bankrupt debtors' "financial instability and proclivity to seek legal protection," post, at 493. Furthermore, the dissent's two assumptions do not necessarily favor the presumptive contract rate approach. For one thing, the cramdown provision applies not only to sub-prime *484 loans but also to prime loans negotiated prior to the change in circumstance (job loss, for example) that rendered the debtor insolvent. Relatedly, the provision also applies in instances in which national or local economic conditions drastically improved or declined after the original loan was issued but before the debtor filed for bankruptcy. In either case, there is every reason to think that a properly risk-adjusted prime rate will provide a better estimate of the creditor's current costs and exposure than a contract rate set in different times. Even more important, if all relevant information about the debtor's circumstances, the creditor's circumstances, the nature of the collateral, and the market for comparable loans were equally available to both debtor and creditor, then in theory the formula and presumptive contract rate approaches would yield the same final interest rate. Thus, we principally differ with the dissent not over what final rate courts should adopt but over which party (creditor or debtor) should bear the burden of rebutting the presumptive rate (prime or contract, respectively). JUSTICE SCALIA identifies four "relevant factors bearing on risk premium[:] (1) the probability of plan failure; (2) the rate of collateral depreciation; (3) the liquidity of the collateral market; and (4) the administrative expenses of enforcement." Post, at 499. In our view, any information debtors have about any of these factors is likely to be included in their bankruptcy filings, while the remaining information will be far more accessible to creditors (who must collect information about their lending markets to remain competitive) than to individual debtors (whose only experience with those markets might be the single loan at issue in the case). Thus, the formula approach, which begins with a concededly low estimate of the appropriate interest rate and requires the creditor to present evidence supporting a higher rate, places the evidentiary burden on the more knowledgeable *485 party, thereby facilitating more accurate calculation of the appropriate interest rate. If the rather sketchy data uncovered by the dissent support an argument that Chapter 13 of the Bankruptcy Code should mandate application of the presumptive contract rate approach (rather than merely an argument that bankruptcy judges should exercise greater caution before approving debt adjustment plans), those data should be forwarded to Congress. We are not persuaded, however, that the data undermine our interpretation of the statutory scheme Congress has enacted. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to remand the case to the Bankruptcy Court for further proceedings consistent with this opinion. It is so ordered. JUSTICE THOMAS, concurring in the judgment.

Justice Thomas

concurring

Till v. SCS Credit Corp.

2004-05-17

https://www.courtlistener.com/opinion/134742/till-v-scs-credit-corp/

https://www.courtlistener.com/api/rest/v3/clusters/134742/

2003-058

This case presents the issue of what the proper method is for discounting deferred payments to present value and what compensation the creditor is entitled to in calculating the appropriate discount rate of interest. Both the plurality and the dissent agree that "[a] debtor's promise of future payments is worth less than an immediate payment of the same total amount because the creditor cannot use the money right away, inflation may cause the value of the dollar to decline before the debtor pays, and there is always some risk of nonpayment." Ante, at 474; post, at 491. Thus, the plurality and the dissent agree that the proper method for discounting deferred payments to present value should take into account each of these factors, but disagree over the proper starting point for calculating the risk of nonpayment. I agree that a "promise of future payments is worth less than an immediate payment" of the same amount, in part because of the risk of nonpayment. But this fact is irrelevant. The statute does not require that the value of the *486 promise to distribute property under the plan be no less than the allowed amount of the secured creditor's claim. It requires only that "the value . . . of property to be distributed under the plan," at the time of the effective date of the plan, be no less than the amount of the secured creditor's claim. 11 U.S. C. § 1325(a)(5)(B)(ii) (emphasis added). Both the plurality and the dissent ignore the clear text of the statute in an apparent rush to ensure that secured creditors are not undercompensated in bankruptcy proceedings. But the statute that Congress enacted does not require a debtor-specific risk adjustment that would put secured creditors in the same position as if they had made another loan. It is for this reason that I write separately. I "It is well established that `when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.'" Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000)). Section 1325(a)(5)(B) provides that "with respect to each allowed secured claim provided for by the plan," "the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim [must] not [be] less than the allowed amount of such claim." Thus, the statute requires a bankruptcy court to make at least three separate determinations. First, a court must determine the allowed amount of the claim. Second, a court must determine what is the "property to be distributed under the plan." Third, a court must determine the "value, as of the effective date of the plan," of the property to be distributed. The dispute in this case centers on the proper method to determine the "value, as of the effective date of the plan, of property to be distributed under the plan." The requirement that the "value" of the property to be distributed be *487 determined "as of the effective date of the plan" incorporates the principle of the time value of money. To put it simply, $4,000 today is worth more than $4,000 to be received 17 months from today because if received today, the $4,000 can be invested to start earning interest immediately.[1] See G. Munn, F. Garcia, & C. Woelfel, Encyclopedia of Banking & Finance 1015 (rev. 9th ed. 1991). Thus, as we explained in Rake v. Wade, 508 U.S. 464 (1993), "[w]hen a claim is paid off pursuant to a stream of future payments, a creditor receives the `present value' of its claim only if the total amount of the deferred payments includes the amount of the underlying claim plus an appropriate amount of interest to compensate the creditor for the decreased value of the claim caused by the delayed payments." Id., at 472, n. 8. Respondent argues, and the plurality and the dissent agree, that the proper interest rate must also reflect the risk of nonpayment. But the statute contains no such requirement. The statute only requires the valuation of the "property to be distributed," not the valuation of the plan (i. e., the promise to make the payments itself). Thus, in order for a plan to satisfy § 1325(a)(5)(B)(ii), the plan need only propose an interest rate that will compensate a creditor for the fact that if he had received the property immediately rather than at a future date, he could have immediately made use of the property. In most, if not all, cases, where the plan proposes simply a stream of cash payments, the appropriate risk-free rate should suffice. Respondent here would certainly be acutely aware of any risk of default inherent in a Chapter 13 plan, but it is nonsensical to speak of a debtor's risk of default being inherent in the value of "property" unless that property is a promise or *488 a debt. Suppose, for instance, that it is currently time A, the property to be distributed is a house, and it will be distributed at time B. Although market conditions might cause the value of the house to fluctuate between time A and time B, the fluctuating value of the house itself has nothing to do with the risk that the debtor will not deliver the house at time B. The value of the house, then, can be and is determined entirely without any reference to any possibility that a promise to transfer the house would not be honored. So too, then, with cash: the value of the cash can be and is determined without any inclusion of any risk that the debtor will fail to transfer the cash at the appropriate time. The dissent might be correct that the use of the prime rate,[2] even with a small risk adjustment, "will systematically undercompensate secured creditors for the true risks of default." Post, at 492.[3] This systematic undercompensation might seem problematic as a matter of policy. But, it raises no problem as a matter of statutory interpretation. Thus, although there is always some risk of nonpayment when A promises to repay a debt to B through a stream of payments over time rather than through an immediate lump-sum payment, § 1325(a)(5)(B)(ii) does not take this risk into account. This is not to say that a debtor's risk of nonpayment can never be a factor in determining the value of the property to be distributed. Although "property" is not defined in the Bankruptcy Code, nothing in § 1325 suggests that "property" is limited to cash. Rather, "`property' can be cash, notes, stock, personal property or real property; in short, anything of value." 7 Collier on Bankruptcy ¶ 1129.03[7][b][i], p. 1129-44 (rev. 15th ed. 2003) (discussing Chapter 11's cramdown provision). And if the "property to be distributed" *489 under a Chapter 13 plan is a note (i. e., a promise to pay), for instance, the value of that note necessarily includes the risk that the debtor will not make good on that promise. Still, accounting for the risk of nonpayment in that case is not equivalent to reading a risk adjustment requirement into the statute, as in the case of a note, the risk of nonpayment is part of the value of the note itself. Respondent argues that "Congress crafted the requirements of section 1325(a)(5)(B)(ii) for the protection of creditors, not debtors," and thus that the relevant interest rate must account for the true risks and costs associated with a Chapter 13 debtor's promise of future payment. Brief for Respondent 24 (citing Johnson v. Home State Bank, 501 U.S. 78, 87-88 (1991)). In addition to ignoring the plain language of the statute, which requires no such risk adjustment, respondent overlooks the fact that secured creditors are already compensated in part for the risk of nonpayment through the valuation of the secured claim. In Associates Commercial Corp. v. Rash, 520 U.S. 953 (1997), we utilized a secured-creditor-friendly replacement-value standard rather than the lower foreclosure-value standard for valuing secured claims when a debtor has exercised Chapter 13's cramdown option. We did so because the statute at issue in that case reflected Congress' recognition that "[i]f a debtor keeps the property and continues to use it, the creditor obtains at once neither the property nor its value and is exposed to double risks: The debtor may again default and the property may deteriorate from extended use." Id., at 962. Further, the plain language of the statute is by no means specifically debtor protective. As the Court pointed out in Johnson, supra, at 87-88, § 1325 contains a number of provisions to protect creditors: A bankruptcy court can only authorize a plan that "has been proposed in good faith," § 1325(a)(3); secured creditors must accept the plan, obtain the property securing the claim, or "retain the[ir] lien[s]" and receive under the plan distributions of property which equal *490 "not less than the allowed amount of such claim," § 1325(a)(5); and a bankruptcy court must ensure that "the debtor will be able to make all payments under the plan and to comply with the plan," § 1325(a)(6). Given the presence of multiple creditor-specific protections, it is by no means irrational to assume that Congress opted not to provide further protection for creditors by requiring a debtor-specific risk adjustment under § 1325(a)(5). Although the dissent may feel that this is insufficient compensation for secured creditors, given the apparent rate at which debtors fail to complete their Chapter 13 plans, see post, at 493, and n. 1, this is a matter that should be brought to the attention of Congress rather than resolved by this Court. II The allowed amount of the secured claim is $4,000. App. 57. The statute then requires a bankruptcy court to identify the "property to be distributed" under the plan. Petitioners' Amended Chapter 13 Plan (Plan) provided: "The future earnings of DEBTOR(S) are submitted to the supervision and control of this Court, and DEBTOR(S) shall pay to the TRUSTEE a sum of $740 . . . per month in weekly installments by voluntary wage assignment by separate ORDER of the Court in an estimated amount of $170.77 and continuing for a total plan term of 36 months unless this Court approves an extension of the term not beyond 60 months from the date of filing the Petition herein." App. to Pet. for Cert. 77a. From the payments received, the trustee would then make disbursements to petitioners' creditors, pro rata among each class of creditors. The Plan listed one priority claim and four secured claims. For respondent's secured claim, petitioners proposed an interest rate of 9.5%. App. 57. Thus, petitioners proposed to distribute to respondent a stream of cash payments equaling respondent's pro rata share of $740 per month for a period of up to 36 months. Id., at 12. *491 Although the Plan does not specifically state that "the property to be distributed" under the Plan is cash payments, the cash payments are the only "property" specifically listed for distribution under the Plan. Thus, although the plurality and the dissent imply that the "property to be distributed" under the Plan is the mere promise to make cash payments, the plain language of the Plan indicates that the "property to be distributed" to respondent is up to 36 monthly cash payments, consisting of a pro rata share of $740 per month. The final task, then, is to determine whether petitioners' proposed 9.5% interest rate will sufficiently compensate respondent for the fact that instead of receiving $4,000 today, it will receive $4,000 plus 9.5% interest over a period of up to 36 months. Because the 9.5% rate is higher than the risk-free rate, I conclude that it will. I would therefore reverse the judgment of the Court of Appeals.

This case presents the issue of what the proper method is for discounting deferred payments to present value and what compensation the creditor is entitled to in calculating the appropriate discount rate of interest. Both the plurality and the dissent agree that "[a] debtor's promise of future payments is worth less than an immediate payment of the same total amount because the creditor cannot use the money right away, inflation may cause the value of the dollar to decline before the debtor pays, and there is always some risk of nonpayment." Ante, at 474; post, at 491. Thus, the plurality and the dissent agree that the proper method for discounting deferred payments to present value should take into account each of these factors, but disagree over the proper starting point for calculating the risk of nonpayment. I agree that a "promise of future payments is worth less than an immediate payment" of the same amount, in part because of the risk of nonpayment. But this fact is irrelevant. The statute does not require that the value of the *48 promise to distribute property under the plan be no less than the allowed amount of the secured creditor's claim. It requires only that "the value of property to be distributed under the plan," at the time of the effective date of the plan, be no less than the amount of the secured creditor's claim. 11 U.S. C. 1325(a)(5)(B)(ii) (emphasis added). Both the plurality and the dissent ignore the clear text of the statute in an apparent rush to ensure that secured creditors are not undercompensated in bankruptcy proceedings. But the statute that Congress enacted does not require a debtor-specific risk adjustment that would put secured creditors in the same position as if they had made another loan. It is for this reason that I write separately. I "It is well established that `when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.'" Section 1325(a)(5)(B) provides that "with respect to each allowed secured claim provided for by the plan," "the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim [must] not [be] less than the allowed amount of such claim." Thus, the statute requires a bankruptcy court to make at least three separate determinations. First, a court must determine the allowed amount of the claim. Second, a court must determine what is the "property to be distributed under the plan." Third, a court must determine the "value, as of the effective date of the plan," of the property to be distributed. The dispute in this case centers on the proper method to determine the "value, as of the effective date of the plan, of property to be distributed under the plan." The requirement that the "value" of the property to be distributed be *487 determined "as of the effective date of the plan" incorporates the principle of the time value of money. To put it simply, $4,000 today is worth more than $4,000 to be received 17 months from today because if received today, the $4,000 can be invested to start earning interest immediately.[1] See G. Munn, F. Garcia, & C. Woelfel, Encyclopedia of Banking & Finance 1015 Thus, as we explained in 508 U.S. 44 "[w]hen a claim is paid off pursuant to a stream of future payments, a creditor receives the `present value' of its claim only if the total amount of the deferred payments includes the amount of the underlying claim plus an appropriate amount of interest to compensate the creditor for the decreased value of the claim caused by the delayed payments." Respondent argues, and the plurality and the dissent agree, that the proper interest rate must also reflect the risk of nonpayment. But the statute contains no such requirement. The statute only requires the valuation of the "property to be distributed," not the valuation of the plan (i. e., the promise to make the payments itself). Thus, in order for a plan to satisfy 1325(a)(5)(B)(ii), the plan need only propose an interest rate that will compensate a creditor for the fact that if he had received the property immediately rather than at a future date, he could have immediately made use of the property. In most, if not all, cases, where the plan proposes simply a stream of cash payments, the appropriate risk-free rate should suffice. Respondent here would certainly be acutely aware of any risk of default inherent in a Chapter 13 plan, but it is nonsensical to speak of a debtor's risk of default being inherent in the value of "property" unless that property is a promise or *488 a debt. Suppose, for instance, that it is currently time A, the property to be distributed is a house, and it will be distributed at time B. Although market conditions might cause the value of the house to fluctuate between time A and time B, the fluctuating value of the house itself has nothing to do with the risk that the debtor will not deliver the house at time B. The value of the house, then, can be and is determined entirely without any reference to any possibility that a promise to transfer the house would not be honored. So too, then, with cash: the value of the cash can be and is determined without any inclusion of any risk that the debtor will fail to transfer the cash at the appropriate time. The dissent might be correct that the use of the prime rate,[2] even with a small risk adjustment, "will systematically undercompensate secured creditors for the true risks of default." Post, at 492.[3] This systematic undercompensation might seem problematic as a matter of policy. But, it raises no problem as a matter of statutory interpretation. Thus, although there is always some risk of nonpayment when A promises to repay a debt to B through a stream of payments over time rather than through an immediate lump-sum payment, 1325(a)(5)(B)(ii) does not take this risk into account. This is not to say that a debtor's risk of nonpayment can never be a factor in determining the value of the property to be distributed. Although "property" is not defined in the Bankruptcy Code, nothing in 1325 suggests that "property" is limited to cash. Rather, "`property' can be cash, notes, stock, personal property or real property; in short, anything of value." 7 Collier on Bankruptcy ¶ 1129.03[7][b][i], p. 1129-44 (rev. 15th ed. 2003) (discussing Chapter 11's cramdown provision). And if the "property to be distributed" *489 under a Chapter 13 plan is a note (i. e., a promise to pay), for instance, the value of that note necessarily includes the risk that the debtor will not make good on that promise. Still, accounting for the risk of nonpayment in that case is not equivalent to reading a risk adjustment requirement into the statute, as in the case of a note, the risk of nonpayment is part of the value of the note itself. Respondent argues that "Congress crafted the requirements of section 1325(a)(5)(B)(ii) for the protection of creditors, not debtors," and thus that the relevant interest rate must account for the true risks and costs associated with a Chapter 13 debtor's promise of future payment. Brief for Respondent 24 ). In addition to ignoring the plain language of the statute, which requires no such risk adjustment, respondent overlooks the fact that secured creditors are already compensated in part for the risk of nonpayment through the valuation of the secured claim. In Associates Commercial we utilized a secured-creditor-friendly replacement-value standard rather than the lower foreclosure-value standard for valuing secured claims when a debtor has exercised Chapter 13's cramdown option. We did so because the statute at issue in that case reflected Congress' recognition that "[i]f a debtor keeps the property and continues to use it, the creditor obtains at once neither the property nor its value and is exposed to double risks: The debtor may again default and the property may deteriorate from extended use." at 92. Further, the plain language of the statute is by no means specifically debtor protective. As the Court pointed out in at 1325 contains a number of provisions to protect creditors: A bankruptcy court can only authorize a plan that "has been proposed in good faith," 1325(a)(3); secured creditors must accept the plan, obtain the property securing the claim, or "retain the[ir] lien[s]" and receive under the plan distributions of property which equal *490 "not less than the allowed amount of such claim," 1325(a)(5); and a bankruptcy court must ensure that "the debtor will be able to make all payments under the plan and to comply with the plan," 1325(a)(). Given the presence of multiple creditor-specific protections, it is by no means irrational to assume that Congress opted not to provide further protection for creditors by requiring a debtor-specific risk adjustment under 1325(a)(5). Although the dissent may feel that this is insufficient compensation for secured creditors, given the apparent rate at which debtors fail to complete their Chapter 13 plans, see post, at 493, and n. 1, this is a matter that should be brought to the attention of Congress rather than resolved by this Court. II The allowed amount of the secured claim is $4,000. App. 57. The statute then requires a bankruptcy court to identify the "property to be distributed" under the plan. Petitioners' Amended Chapter 13 Plan (Plan) provided: "The future earnings of DEBTOR(S) are submitted to the supervision and control of this Court, and DEBTOR(S) shall pay to the TRUSTEE a sum of $740 per month in weekly installments by voluntary wage assignment by separate ORDER of the Court in an estimated amount of $170.77 and continuing for a total plan term of 3 months unless this Court approves an extension of the term not beyond 0 months from the date of filing the Petition herein." App. to Pet. for Cert. 77a. From the payments received, the trustee would then make disbursements to petitioners' creditors, pro rata among each class of creditors. The Plan listed one priority claim and four secured claims. For respondent's secured claim, petitioners proposed an interest rate of 9.5%. App. 57. Thus, petitioners proposed to distribute to respondent a stream of cash payments equaling respondent's pro rata share of $740 per month for a period of up to 3 months. *491 Although the Plan does not specifically state that "the property to be distributed" under the Plan is cash payments, the cash payments are the only "property" specifically listed for distribution under the Plan. Thus, although the plurality and the dissent imply that the "property to be distributed" under the Plan is the mere promise to make cash payments, the plain language of the Plan indicates that the "property to be distributed" to respondent is up to 3 monthly cash payments, consisting of a pro rata share of $740 per month. The final task, then, is to determine whether petitioners' proposed 9.5% interest rate will sufficiently compensate respondent for the fact that instead of receiving $4,000 today, it will receive $4,000 plus 9.5% interest over a period of up to 3 months. Because the 9.5% rate is higher than the risk-free rate, I conclude that it will. I would therefore reverse the judgment of the Court of Appeals.

Justice Scalia

dissenting

Till v. SCS Credit Corp.

2004-05-17

https://www.courtlistener.com/opinion/134742/till-v-scs-credit-corp/

https://www.courtlistener.com/api/rest/v3/clusters/134742/

2003-058

My areas of agreement with the plurality are substantial. We agree that, although all confirmed Chapter 13 plans have been deemed feasible by a bankruptcy judge, some nevertheless fail. See ante, at 480. We agree that any deferred payments to a secured creditor must fully compensate it for the risk that such a failure will occur. See ante, at 474. Finally, we agree that adequate compensation may sometimes require an "`eye-popping'" interest rate, and that, if the rate is too high for the plan to succeed, the appropriate course is not to reduce it to a more palatable level, but to refuse to confirm the plan. See ante, at 480-481. Our only disagreement is over what procedure will more often produce accurate estimates of the appropriate interest rate. The plurality would use the prime lending rate—a rate we know is too low—and require the judge in every case to determine an amount by which to increase it. I believe *492 that, in practice, this approach will systematically undercompensate secured creditors for the true risks of default. I would instead adopt the contract rate—i. e., the rate at which the creditor actually loaned funds to the debtor—as a presumption that the bankruptcy judge could revise on motion of either party. Since that rate is generally a good indicator of actual risk, disputes should be infrequent, and it will provide a quick and reasonably accurate standard. I The contract-rate approach makes two assumptions, both of which are reasonable. First, it assumes that subprime lending markets are competitive and therefore largely efficient. If so, the high interest rates lenders charge reflect not extortionate profits or excessive costs, but the actual risks of default that subprime borrowers present. Lenders with excessive rates would be undercut by their competitors, and inefficient ones would be priced out of the market. We have implicitly assumed market competitiveness in other bankruptcy contexts. See Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434, 456-458 (1999). Here the assumption is borne out by empirical evidence: One study reports that subprime lenders are nearly twice as likely to be unprofitable as banks, suggesting a fiercely competitive environment. See J. Lane, Associate Director, Division of Supervision, Federal Deposit Insurance Corporation, A Regulator's View of Subprime Lending: Address at the National Automotive Finance Association Non-Prime Auto Lending Conference 6 (June 18-19, 2002) (available in Clerk of Court's case file). By relying on the prime rate, the plurality implicitly assumes that the prime lending market is efficient, see ante, at 478-479; I see no reason not to make a similar assumption about the sub-prime lending market. The second assumption is that the expected costs of default in Chapter 13 are normally no less than those at the *493 time of lending. This assumption is also reasonable. Chapter 13 plans often fail. I agree with petitioners that the relevant statistic is the percentage of confirmed plans that fail, but even resolving that issue in their favor, the risk is still substantial. The failure rate they offer—which we may take to be a conservative estimate, as it is doubtless the lowest one they could find—is 37%. See Girth, The Role of Empirical Data in Developing Bankruptcy Legislation for Individuals, 65 Ind. L. J. 17, 40-42 (1989) (reporting a 63.1% success rate).[1] In every one of the failed plans making up that 37%, a bankruptcy judge had found that "the debtor will be able to make all payments under the plan," 11 U.S. C. § 1325(a)(6), and a trustee had supervised the debtor's compliance, § 1302. That so many nonetheless failed proves that bankruptcy judges are not oracles and that trustees cannot draw blood from a stone. While court and trustee oversight may provide some marginal benefit to the creditor, it seems obviously outweighed by the fact that (1) an already-bankrupt borrower has demonstrated a financial instability and a proclivity to seek legal protection that other subprime borrowers have not, and *494 (2) the costs of foreclosure are substantially higher in bankruptcy because the automatic stay bars repossession without judicial permission. See § 362. It does not strike me as plausible that creditors would prefer to lend to individuals already in bankruptcy than to those for whom bankruptcy is merely a possibility—as if Chapter 13 were widely viewed by secured creditors as some sort of godsend. Cf. Dunagan, Enforcement of Security Interests in Motor Vehicles in Bankruptcy, 52 Consumer Fin. L. Q. Rep. 191, 197 (1998). Certainly the record in this case contradicts that implausible proposition. See App. 48 (testimony of Craig Cook, sales manager of Instant Auto Finance) ("Q. Are you aware of how other lenders similar to Instant Auto Finance view credit applicants who appear to be candidates for Chapter 13 bankruptcy?" "A. Negative[ly] as well"). The better assumption is that bankrupt debtors are riskier than other subprime debtors—or, at the very least, not systematically less risky. The first of the two assumptions means that the contract rate reasonably reflects actual risk at the time of borrowing. The second means that this risk persists when the debtor files for Chapter 13. It follows that the contract rate is a decent estimate, or at least the lower bound, for the appropriate interest rate in cramdown.[2] The plurality disputes these two assumptions. It argues that subprime lending markets are not competitive because "vehicles are regularly sold by means of tie-in transactions, in which the price of the vehicle is the subject of negotiation, while the terms of the financing are dictated by the seller." *495 Ante, at 481.[3] Tie-ins do not alone make financing markets noncompetitive; they only cause prices and interest rates to be considered in tandem rather than separately. The force of the plurality's argument depends entirely on its claim that "the terms of the financing are dictated by the seller." Ibid. This unsubstantiated assertion is contrary to common experience. Car sellers routinely advertise their interest rates, offer promotions like "zero-percent financing," and engage in other behavior that plainly assumes customers are sensitive to interest rates and not just price.[4] *496 The plurality also points to state and federal regulation of lending markets. Ante, at 481-482. It claims that state usury laws evince a belief that subprime lending markets are noncompetitive. While that is one conceivable explanation for such laws, there are countless others. One statistical and historical study suggests that usury laws are a "primitive means of social insurance" meant to ensure "low interest rates" for those who suffer financial adversity. Glaeser & Scheinkman, Neither a Borrower Nor a Lender Be: An Economic Analysis of Interest Restrictions and Usury Laws, 41 J. Law & Econ. 1, 26 (1998). Such a rationale does not reflect a belief that lending markets are inefficient, any more than rent controls reflect a belief that real estate markets are inefficient. Other historical rationales likewise shed no light on the point at issue here. See id., at 27. The mere existence of usury laws is therefore weak support for any position. The federal Truth in Lending Act, 15 U.S. C. § 1601 et seq., not only fails to support the plurality's position; it positively refutes it. The plurality claims the Act reflects a belief that full disclosure promotes competition, see ante, at 482, and n. 24; the Act itself says as much, see 15 U.S. C. § 1601(a). But that belief obviously presumes markets are competitive (or, at least, that they were noncompetitive only because of the absence of the disclosures the Act now requires). If lending markets were not competitive—if the terms of financing were indeed "dictated by the seller," ante, at 481— disclosure requirements would be pointless, since consumers would have no use for the information.[5] As to the second assumption (that the expected costs of default in Chapter 13 are normally no less than those at the *497 time of lending), the plurality responds, not that Chapter 13 as currently administered is less risky than subprime lending generally, but that it would be less risky, if only bankruptcy courts would confirm fewer risky plans. Ante, at 482-483. Of course, it is often quite difficult to predict which plans will fail. See Norberg, Consumer Bankruptcy's New Clothes: An Empirical Study of Discharge and Debt Collection in Chapter 13, 7 Am. Bankr. Inst. L. Rev. 415, 462 (1999). But even assuming the high failure rate primarily reflects judicial dereliction rather than unavoidable uncertainty, the plurality's argument fails for want of any reason to believe the dereliction will abate. While full compensation can be attained either by low-risk plans and low interest rates, or by high-risk plans and high interest rates, it cannot be attained by high-risk plans and low interest rates, which, absent cause to anticipate a change in confirmation practices, is precisely what the formula approach would yield. The plurality also claims that the contract rate overcompensates creditors because it includes "transaction costs and overall profits." Ante, at 477. But the same is true of the rate the plurality prescribes: The prime lending rate includes banks' overhead and profits. These are necessary components of any commercial lending rate, since creditors will not lend money if they cannot cover their costs and return a level of profit sufficient to prevent their investors from going elsewhere. See Koopmans v. Farm Credit Services of Mid-America, ACA, 102 F.3d 874, 876 (CA7 1996). The plurality's criticism might have force if there were reason to believe subprime lenders made exorbitant profits while banks did not—but, again, the data suggest otherwise. See Lane, Regulator's View of Subprime Lending, at 6.[6] *498 Finally, the plurality objects that similarly situated creditors might not be treated alike. Ante, at 478, and n. 17. But the contract rate is only a presumption. If a judge thinks it necessary to modify the rate to avoid unjustified disparity, he can do so. For example, if two creditors charged different rates solely because they lent to the debtor at different times, the judge could average the rates or use the more recent one. The plurality's argument might be valid against an approach that irrebuttably presumes the contract rate, but that is not what I propose.[7] II The defects of the formula approach far outweigh those of the contract-rate approach. The formula approach starts with the prime lending rate—a number that, while objective and easily ascertainable, is indisputably too low. It then adjusts *499 by adding a risk premium that, unlike the prime rate, is neither objective nor easily ascertainable. If the risk premium is typically small relative to the prime rate—as the 1.5% premium added to the 8% prime rate by the court below would lead one to believe—then this subjective element of the computation might be forgiven. But in fact risk premiums, if properly computed, would typically be substantial. For example, if the 21% contract rate is an accurate reflection of risk in this case, the risk premium would be 13%— nearly two-thirds of the total interest rate. When the risk premium is the greater part of the overall rate, the formula approach no longer depends on objective and easily ascertainable numbers. The prime rate becomes the objective tail wagging a dog of unknown size. As I explain below, the most relevant factors bearing on risk premium are (1) the probability of plan failure; (2) the rate of collateral depreciation; (3) the liquidity of the collateral market; and (4) the administrative expenses of enforcement. Under the formula approach, a risk premium must be computed in every case, so judges will invariably grapple with these imponderables. Under the contract-rate approach, by contrast, the task of assessing all these risk factors is entrusted to the entity most capable of undertaking it: the market. See Bank of America, 526 U. S., at 457 ("[T]he best way to determine value is exposure to a market"). All the risk factors are reflected (assuming market efficiency) in the debtor's contract rate—a number readily found in the loan document. If neither party disputes it, the bankruptcy judge's task is at an end. There are straightforward ways a debtor could dispute it—for example, by showing that the creditor is now substantially oversecured, or that some other lender is willing to extend credit at a lower rate. But unlike the formula approach, which requires difficult estimation in every case, the contract-rate approach requires it only when the parties choose to contest the issue. *500 The plurality defends the formula approach on the ground that creditors have better access to the relevant information. Ante, at 484-485. But this is not a case where we must choose between one initial estimate that is too low and another that is too high. Rather, the choice is between one that is far too low and another that is generally reasonably accurate (or, if anything, a bit too low). In these circumstances, consciously choosing the less accurate estimate merely because creditors have better information smacks more of policymaking than of faithful adherence to the statutory command that the secured creditor receive property worth "not less than the allowed amount" of its claim, 11 U.S. C. § 1325(a)(5)(B)(ii) (emphasis added). Moreover, the plurality's argument assumes it is plausible—and desirable— that the issue will be litigated in most cases. But the costs of conducting a detailed risk analysis and defending it in court are prohibitively high in relation to the amount at stake in most consumer loan cases. Whatever approach we prescribe, the norm should be—and undoubtedly will be— that the issue is not litigated because it is not worth litigating. Given this reality, it is far more important that the initial estimate be accurate than that the burden of proving inaccuracy fall on the better informed party. There is no better demonstration of the inadequacies of the formula approach than the proceedings in this case. Petitioners' economics expert testified that the 1.5% risk premium was "very reasonable" because Chapter 13 plans are "supposed to be financially feasible" and "the borrowers are under the supervision of the court." App. 43. Nothing in the record shows how these two platitudes were somehow manipulated to arrive at a figure of 1.5%. It bears repeating that feasibility determinations and trustee oversight do not prevent at least 37% of confirmed Chapter 13 plans from failing. On cross-examination, the expert admitted that he had only limited familiarity with the subprime auto lending market and that he was not familiar with the default rates or the *501 costs of collection in that market. Id., at 44-45. In light of these devastating concessions, it is impossible to view the 1.5% figure as anything other than a smallish number picked out of a hat. Based on even a rudimentary financial analysis of the facts of this case, the 1.5% figure is obviously wrong—not just off by a couple percent, but probably by roughly an order of magnitude. For a risk premium to be adequate, a hypothetical, rational creditor must be indifferent between accepting (1) the proposed risky stream of payments over time and (2) immediate payment of its present value in a lump sum. Whether he is indifferent—i. e., whether the risk premium added to the prime rate is adequate—can be gauged by comparing benefits and costs: on the one hand, the expected value of the extra interest, and on the other, the expected costs of default. Respondent was offered a risk premium of 1.5% on top of the prime rate of 8%. If that premium were fully paid as the plan contemplated, it would yield about $60.[8] If the debtor defaulted, all or part of that interest would not be paid, so the expected value is only about $50.[9] The prime rate itself already includes some compensation for risk; as it turns out, about the same amount, yielding another $50.[10]*502 Given the 1.5% risk premium, then, the total expected benefit to respondent was about $100. Against this we must weigh the expected costs of default. While precise calculations are impossible, rough estimates convey a sense of their scale. The first cost of default involves depreciation. If the debtor defaults, the creditor can eventually repossess and sell the collateral, but by then it may be substantially less valuable than the remaining balance due—and the debtor may stop paying long before the creditor receives permission to repossess. When petitioners purchased their truck in this case, its value was almost equal to the principal balance on the loan.[11] By the time the plan was confirmed, however, the truck was worth only $4,000, while the balance on the loan was $4,895. If petitioners were to default on their Chapter 13 payments and if respondent suffered the same relative loss from depreciation, it would amount to about $550.[12] The second cost of default involves liquidation. The $4,000 to which respondent would be entitled if paid in a lump sum reflects the replacement value of the vehicle, i. e., the amount it would cost the debtor to purchase a similar used truck. See Associates Commercial Corp. v. Rash, 520 U.S. 953, 965 (1997). If the debtor defaults, the creditor cannot sell the truck for that amount; it receives only a lesser *503 foreclosure value because collateral markets are not perfectly liquid and there is thus a spread between what a buyer will pay and what a seller will demand. The foreclosure value of petitioners' truck is not in the record, but, using the relative liquidity figures in Rash as a rough guide, respondent would suffer a further loss of about $450.[13] The third cost of default consists of the administrative expenses of foreclosure. While a Chapter 13 plan is in effect, the automatic stay prevents secured creditors from repossessing their collateral, even if the debtor fails to pay. See 11 U.S. C. § 362. The creditor's attorney must move the bankruptcy court to lift the stay. § 362(d). In the District where this case arose, the filing fee for such motions is now $150. See United States Bankruptcy Court for the Southern District of Indiana, Schedule of Bankruptcy Fees (Nov. 1, 2003) (available in Clerk of Court's case file). And the standard attorney's fee for such motions, according to one survey, is $350 in Indiana and as high as $875 in other States. See J. Cossitt, Chapter 13 Attorney Fee Survey, American Bankruptcy Institute Annual Spring Meeting (Apr. 10-13, 2003) (available in Clerk of Court's case file). Moreover, bankruptcy judges will often excuse first offenses, so foreclosure may require multiple trips to court. The total expected administrative expenses in the event of default could reasonably be estimated at $600 or more. I have omitted several other costs of default, but the point is already adequately made. The three figures above total $1,600. Even accepting petitioners' low estimate of the plan failure rate, a creditor choosing the stream of future payments instead of the immediate lump sum would be selecting an alternative with an expected cost of about $590 ($1,600 multiplied by 37%, the chance of failure) and an expected *504 benefit of about $100 (as computed above). No rational creditor would make such a choice. The risk premium over prime necessary to make these costs and benefits equal is in the neighborhood of 16%, for a total interest rate of 24%.[14] Of course, many of the estimates I have made can be disputed. Perhaps the truck will depreciate more slowly now than at first, perhaps the collateral market is more liquid than the one in Rash, perhaps respondent can economize on attorney's fees, and perhaps there is some reason (other than judicial optimism) to think the Tills were unlikely to default. I have made some liberal assumptions,[15] but also some conservative ones.[16] When a risk premium is off by an order of magnitude, one's estimates need not be very precise to show that it cannot possibly be correct. In sum, the 1.5% premium adopted in this case is far below anything approaching fair compensation. That result is not unusual, see, e. g., In re Valenti, 105 F.3d 55, 64 (CA2 1997) (recommending a 1%-3% premium over the treasury rate— i. e., approximately a 0% premium over prime); it is the entirely predictable consequence of a methodology that tells bankruptcy judges to set interest rates based on highly imponderable factors. Given the inherent uncertainty of the enterprise, what heartless bankruptcy judge can be expected to demand that the unfortunate debtor pay triple the prime rate as a condition of keeping his sole means of transportation? It challenges human nature. *505 III JUSTICE THOMAS rejects both the formula approach and the contract-rate approach. He reads the statutory phrase "property to be distributed under the plan," 11 U.S. C. § 1325(a)(5)(B)(ii), to mean the proposed payments if made as the plan contemplates, so that the plan need only pay the risk-free rate of interest. Ante, at 487 (opinion concurring in judgment). I would instead read this phrase to mean the right to receive payments that the plan vests in the creditor upon confirmation. Because there is no guarantee that the promised payments will in fact be made, the value of this property right must account for the risk of nonpayment. Viewed in isolation, the phrase is susceptible of either meaning. Both the promise to make payments and the proposed payments themselves are property rights, the former "to be distributed under the plan" immediately upon confirmation, and the latter over the life of the plan. Context, however, supports my reading. The cramdown option which the debtors employed here is only one of three routes to confirmation. The other two—creditor acceptance and collateral surrender, §§ 1325(a)(5)(A), (C)—are both creditor protective, leaving the secured creditor roughly as well off as he would have been had the debtor not sought bankruptcy protection. Given this, it is unlikely the third option was meant to be substantially underprotective; that would render it so much more favorable to debtors that few would ever choose one of the alternatives. The risk-free approach also leads to anomalous results. JUSTICE THOMAS admits that, if a plan distributes a note rather than cash, the value of the "property to be distributed" must reflect the risk of default on the note. Ante, at 488-489. But there is no practical difference between obligating the debtor to make deferred payments under a plan and obligating the debtor to sign a note that requires those same payments. There is no conceivable reason why Congress *506 would give secured creditors risk compensation in one case but not the other. Circuit authority uniformly rejects the risk-free approach. While Circuits addressing the issue are divided over how to calculate risk, to my knowledge all of them require some compensation for risk, either explicitly or implicitly. See In re Valenti, supra, at 64 (treasury rate plus 1%-3% risk premium); GMAC v. Jones, 999 F.2d 63, 71 (CA3 1993) (contract rate); United Carolina Bank v. Hall, 993 F.2d 1126, 1131 (CA4 1993) (creditor's rate for similar loans, but not higher than contract rate); In re Smithwick, 121 F.3d 211, 214 (CA5 1997) (contract rate); In re Kidd, 315 F.3d 671, 678 (CA6 2003) (market rate for similar loans); In re Till, 301 F.3d 583, 592-593 (CA7 2002) (case below) (contract rate); In re Fisher, 930 F.2d 1361, 1364 (CA8 1991) (market rate for similar loans) (interpreting parallel Chapter 12 provision); In re Fowler, 903 F.2d 694, 698 (CA9 1990) (prime rate plus risk premium); In re Hardzog, 901 F.2d 858, 860 (CA10 1990) (market rate for similar loans, but not higher than contract rate) (Chapter 12); In re Southern States Motor Inns, Inc., 709 F.2d 647, 652-653 (CA11 1983) (market rate for similar loans) (interpreting similar Chapter 11 provision); see also 8 Collier on Bankruptcy ¶ 1325.06[3][b], p. 1325-37 (rev. 15th ed. 2004). JUSTICE THOMAS identifies no decision adopting his view. Nor does our decision in Rash, 520 U.S. 953, support the risk-free approach. There we considered whether a secured creditor's claim should be valued at what the debtor would pay to replace the collateral or at the lower price the creditor would receive from a foreclosure sale. JUSTICE THOMAS contends that Rash selected the former in order to compensate creditors for the risk of plan failure, and that, having compensated them once in that context, we need not do so again here. Ante, at 489. I disagree with this reading of Rash. The Bankruptcy Code provides that "value shall be determined in light of the purpose of the valuation and of the *507 proposed disposition or use of [the] property." 11 U.S. C. § 506(a). Rash held that the foreclosure-value approach failed to give effect to this language, because it assigned the same value whether the debtor surrendered the collateral or was allowed to retain it in exchange for promised payments. 520 U.S., at 962. "From the creditor's perspective as well as the debtor's, surrender and retention are not equivalent acts." Ibid. We did point out that retention entails risks for the creditor that surrender does not. Id., at 962-963. But we made no effort to correlate that increased risk with the difference between replacement and foreclosure value. And we also pointed out that retention benefits the debtor by allowing him to continue to use the property—a factor we considered "[o]f prime significance." Id., at 963. Rash stands for the proposition that surrender and retention are fundamentally different sorts of "disposition or use," calling for different valuations. Nothing in the opinion suggests that we thought the valuation difference reflected the degree of increased risk, or that we adopted the replacement-value standard in order to compensate for increased risk. To the contrary, we said that the debtor's "actual use . . . is the proper guide under a prescription hinged to the property's `disposition or use.'" Ibid. If Congress wanted to compensate secured creditors for the risk of plan failure, it would not have done so by prescribing a particular method of valuing collateral. A plan may pose little risk even though the difference between foreclosure and replacement values is substantial, or great risk even though the valuation difference is small. For example, if a plan proposes immediate cash payment to the secured creditor, he is entitled to the higher replacement value under Rash even though he faces no risk at all. If the plan calls for deferred payments but the collateral consists of listed securities, the valuation difference may be trivial, but the creditor still faces substantial risks. And a creditor oversecured in even the slightest degree at the time of bankruptcy *508 derives no benefit at all from Rash, but still faces some risk of collateral depreciation.[17] There are very good reasons for Congress to prescribe full risk compensation for creditors. Every action in the free market has a reaction somewhere. If subprime lenders are systematically undercompensated in bankruptcy, they will charge higher rates or, if they already charge the legal maximum under state law, lend to fewer of the riskiest borrowers. As a result, some marginal but deserving borrowers will be denied vehicle loans in the first place. Congress evidently concluded that widespread access to credit is worth preserving, even if it means being ungenerous to sympathetic debtors. * * * Today's judgment is unlikely to burnish the Court's reputation for reasoned decisionmaking. Eight Justices are in agreement that the rate of interest set forth in the debtor's approved plan must include a premium for risk. Of those eight, four are of the view that beginning with the contract rate would most accurately reflect the actual risk, and four are of the view that beginning with the prime lending rate would do so. The ninth Justice takes no position on the latter point, since he disagrees with the eight on the former point; he would reverse because the rate proposed here, being above the risk-free rate, gave respondent no cause for complaint. Because I read the statute to require full risk compensation, and because I would adopt a valuation method that has a realistic prospect of enforcing that directive, I respectfully dissent.

My areas of agreement with the plurality are substantial. We agree that, although all confirmed Chapter 13 plans have been deemed feasible by a bankruptcy judge, some nevertheless fail. See ante, at 480. We agree that any deferred payments to a secured creditor must fully compensate it for the risk that such a failure will occur. See ante, at 474. Finally, we agree that adequate compensation may sometimes require an "`eye-popping'" interest rate, and that, if the rate is too high for the plan to succeed, the appropriate course is not to reduce it to a more palatable level, but to refuse to confirm the plan. See ante, at 480-481. Our only disagreement is over what procedure will more often produce accurate estimates of the appropriate interest rate. The plurality would use the prime lending rate—a rate we know is too low—and require the judge in every case to determine an amount by which to increase it. I believe *492 that, in practice, this approach will systematically undercompensate secured creditors for the true risks of default. I would instead adopt the contract rate—i. e., the rate at which the creditor actually loaned funds to the debtor—as a presumption that the bankruptcy judge could revise on motion of either party. Since that rate is generally a good indicator of actual risk, disputes should be infrequent, and it will provide a quick and reasonably accurate standard. I The contract-rate approach makes two assumptions, both of which are reasonable. First, it assumes that subprime lending markets are competitive and therefore largely efficient. If so, the high interest rates lenders charge reflect not extortionate profits or excessive costs, but the actual risks of default that subprime borrowers present. Lenders with excessive rates would be undercut by their competitors, and inefficient ones would be priced out of the market. We have implicitly assumed market competitiveness in other bankruptcy contexts. See Bank of Nat. Trust and Sav. Here the assumption is borne out by empirical evidence: One study reports that subprime lenders are nearly twice as likely to be unprofitable as banks, suggesting a fiercely competitive environment. See J. Lane, Associate Director, Division of Supervision, Federal Deposit Insurance Corporation, A Regulator's View of Subprime Lending: Address at the National Automotive Finance Association Non-Prime Auto Lending Conference 6 (available in Clerk of Court's case file). By relying on the prime rate, the plurality implicitly assumes that the prime lending market is efficient, see ante, at 478-479; I see no reason not to make a similar assumption about the sub-prime lending market. The second assumption is that the expected costs of default in Chapter 13 are normally no less than those at the *493 time of lending. This assumption is also reasonable. Chapter 13 plans often fail. I agree with petitioners that the relevant statistic is the percentage of confirmed plans that fail, but even resolving that issue in their favor, the risk is still substantial. The failure rate they offer—which we may take to be a conservative estimate, as it is doubtless the lowest one they could find—is 37%. See Girth, The Role of Empirical Data in Developing Bankruptcy Legislation for Individuals, 65 Ind. L. J. 17, 40-42 (1989) (reporting a 63.1% success rate).[1] In every one of the failed plans making up that 37%, a bankruptcy judge had found that "the debtor will be able to make all payments under the plan," 11 U.S. C. 1325(a)(6), and a trustee had supervised the debtor's compliance, 1302. That so many nonetheless failed proves that bankruptcy judges are not oracles and that trustees cannot draw blood from a stone. While court and trustee oversight may provide some marginal benefit to the creditor, it seems obviously outweighed by the fact that (1) an already-bankrupt borrower has demonstrated a financial instability and a proclivity to seek legal protection that other subprime borrowers have not, and *494 (2) the costs of foreclosure are substantially higher in bankruptcy because the automatic stay bars repossession without judicial permission. See 362. It does not strike me as plausible that creditors would prefer to lend to individuals already in bankruptcy than to those for whom bankruptcy is merely a possibility—as if Chapter 13 were widely viewed by secured creditors as some sort of godsend. Cf. Dunagan, Enforcement of Security Interests in Motor Vehicles in Bankruptcy, Certainly the record in this case contradicts that implausible proposition. See App. 48 (testimony of Craig Cook, sales manager of Instant Auto Finance) ("Q. Are you aware of how other lenders similar to Instant Auto Finance view credit applicants who appear to be candidates for Chapter 13 bankruptcy?" "A. Negative[ly] as well"). The better assumption is that bankrupt debtors are riskier than other subprime debtors—or, at the very least, not systematically less risky. The first of the two assumptions means that the contract rate reasonably reflects actual risk at the time of borrowing. The second means that this risk persists when the debtor files for Chapter 13. It follows that the contract rate is a decent estimate, or at least the lower bound, for the appropriate interest rate in cramdown.[2] The plurality disputes these two assumptions. It argues that subprime lending markets are not competitive because "vehicles are regularly sold by means of tie-in transactions, in which the price of the vehicle is the subject of negotiation, while the terms of the financing are dictated by the seller." *495 Ante, at 481.[3] Tie-ins do not alone make financing markets noncompetitive; they only cause prices and interest rates to be considered in tandem rather than separately. The force of the plurality's argument depends entirely on its claim that "the terms of the financing are dictated by the seller." This unsubstantiated assertion is contrary to common experience. Car sellers routinely advertise their interest rates, offer promotions like "zero-percent financing," and engage in other behavior that plainly assumes customers are sensitive to interest rates and not just price.[4] *496 The plurality also points to state and federal regulation of lending markets. Ante, at 481-482. It claims that state usury laws evince a belief that subprime lending markets are noncompetitive. While that is one conceivable explanation for such laws, there are countless others. One statistical and historical study suggests that usury laws are a "primitive means of social insurance" meant to ensure "low interest rates" for those who suffer financial adversity. Glaeser & Scheinkman, Neither a Borrower Nor a Lender Be: An Economic Analysis of Interest Restrictions and Usury Laws, 41 J. Law & Econ. 1, 26 Such a rationale does not reflect a belief that lending markets are inefficient, any more than rent controls reflect a belief that real estate markets are inefficient. Other historical rationales likewise shed no light on the point at issue here. See The mere existence of usury laws is therefore weak support for any position. The federal Truth in Lending Act, 15 U.S. C. 1601 et seq., not only fails to support the plurality's position; it positively refutes it. The plurality claims the Act reflects a belief that full disclosure promotes competition, see ante, at 482, and n. 24; the Act itself says as much, see 15 U.S. C. 1601(a). But that belief obviously presumes markets are competitive (or, at least, that they were noncompetitive only because of the absence of the disclosures the Act now requires). If lending markets were not competitive—if the terms of financing were indeed "dictated by the seller," ante, at 481— disclosure requirements would be pointless, since consumers would have no use for the information.[5] As to the second assumption (that the expected costs of default in Chapter 13 are normally no less than those at the *497 time of lending), the plurality responds, not that Chapter 13 as currently administered is less risky than subprime lending generally, but that it would be less risky, if only bankruptcy courts would confirm fewer risky plans. Ante, at 482-483. Of course, it is often quite difficult to predict which plans will fail. See Norberg, Consumer Bankruptcy's New Clothes: An Empirical Study of Discharge and Debt Collection in Chapter 13, But even assuming the high failure rate primarily reflects judicial dereliction rather than unavoidable uncertainty, the plurality's argument fails for want of any reason to believe the dereliction will abate. While full compensation can be attained either by low-risk plans and low interest rates, or by high-risk plans and high interest rates, it cannot be attained by high-risk plans and low interest rates, which, absent cause to anticipate a change in confirmation practices, is precisely what the formula approach would yield. The plurality also claims that the contract rate overcompensates creditors because it includes "transaction costs and overall profits." Ante, at 477. But the same is true of the rate the plurality prescribes: The prime lending rate includes banks' overhead and profits. These are necessary components of any commercial lending rate, since creditors will not lend money if they cannot cover their costs and return a level of profit sufficient to prevent their investors from going elsewhere. See The plurality's criticism might have force if there were reason to believe subprime lenders made exorbitant profits while banks did not—but, again, the data suggest otherwise. See Lane, Regulator's View of Subprime Lending, at 6.[6] *498 Finally, the plurality objects that similarly situated creditors might not be treated alike. Ante, at 478, and n. 17. But the contract rate is only a presumption. If a judge thinks it necessary to modify the rate to avoid unjustified disparity, he can do so. For example, if two creditors charged different rates solely because they lent to the debtor at different times, the judge could average the rates or use the more recent one. The plurality's argument might be valid against an approach that irrebuttably presumes the contract rate, but that is not what I propose.[7] II The defects of the formula approach far outweigh those of the contract-rate approach. The formula approach starts with the prime lending rate—a number that, while objective and easily ascertainable, is indisputably too low. It then adjusts *499 by adding a risk premium that, unlike the prime rate, is neither objective nor easily ascertainable. If the risk premium is typically small relative to the prime rate—as the 1.5% premium added to the 8% prime rate by the court below would lead one to believe—then this subjective element of the computation might be forgiven. But in fact risk premiums, if properly computed, would typically be substantial. For example, if the 21% contract rate is an accurate reflection of risk in this case, the risk premium would be 13%— nearly two-thirds of the total interest rate. When the risk premium is the greater part of the overall rate, the formula approach no longer depends on objective and easily ascertainable numbers. The prime rate becomes the objective tail wagging a dog of unknown size. As I explain below, the most relevant factors bearing on risk premium are (1) the probability of plan failure; (2) the rate of collateral depreciation; (3) the liquidity of the collateral market; and (4) the administrative expenses of enforcement. Under the formula approach, a risk premium must be computed in every case, so judges will invariably grapple with these imponderables. Under the contract-rate approach, by contrast, the task of assessing all these risk factors is entrusted to the entity most capable of undertaking it: the market. See Bank of All the risk factors are reflected (assuming market efficiency) in the debtor's contract rate—a number readily found in the loan document. If neither party disputes it, the bankruptcy judge's task is at an end. There are straightforward ways a debtor could dispute it—for example, by showing that the creditor is now substantially oversecured, or that some other lender is willing to extend credit at a lower rate. But unlike the formula approach, which requires difficult estimation in every case, the contract-rate approach requires it only when the parties choose to contest the issue. *500 The plurality defends the formula approach on the ground that creditors have better access to the relevant information. Ante, at 484-485. But this is not a case where we must choose between one initial estimate that is too low and another that is too high. Rather, the choice is between one that is far too low and another that is generally reasonably accurate (or, if anything, a bit too low). In these circumstances, consciously choosing the less accurate estimate merely because creditors have better information smacks more of policymaking than of faithful adherence to the statutory command that the secured creditor receive property worth "not less than the allowed amount" of its claim, 11 U.S. C. 1325(a)(5)(B)(ii) (emphasis added). Moreover, the plurality's argument assumes it is plausible—and desirable— that the issue will be litigated in most cases. But the costs of conducting a detailed risk analysis and defending it in court are prohibitively high in relation to the amount at stake in most consumer loan cases. Whatever approach we prescribe, the norm should be—and undoubtedly will be— that the issue is not litigated because it is not worth litigating. Given this reality, it is far more important that the initial estimate be accurate than that the burden of proving inaccuracy fall on the better informed party. There is no better demonstration of the inadequacies of the formula approach than the proceedings in this case. Petitioners' economics expert testified that the 1.5% risk premium was "very reasonable" because Chapter 13 plans are "supposed to be financially feasible" and "the borrowers are under the supervision of the court." App. 43. Nothing in the record shows how these two platitudes were somehow manipulated to arrive at a figure of 1.5%. It bears repeating that feasibility determinations and trustee oversight do not prevent at least 37% of confirmed Chapter 13 plans from failing. On cross-examination, the expert admitted that he had only limited familiarity with the subprime auto lending market and that he was not familiar with the default rates or the *501 costs of collection in that market. In light of these devastating concessions, it is impossible to view the 1.5% figure as anything other than a smallish number picked out of a hat. Based on even a rudimentary financial analysis of the facts of this case, the 1.5% figure is obviously wrong—not just off by a couple percent, but probably by roughly an order of magnitude. For a risk premium to be adequate, a hypothetical, rational creditor must be indifferent between accepting (1) the proposed risky stream of payments over time and (2) immediate payment of its present value in a lump sum. Whether he is indifferent—i. e., whether the risk premium added to the prime rate is adequate—can be gauged by comparing benefits and costs: on the one hand, the expected value of the extra interest, and on the other, the expected costs of default. Respondent was offered a risk premium of 1.5% on top of the prime rate of 8%. If that premium were fully paid as the plan contemplated, it would yield about $60.[8] If the debtor defaulted, all or part of that interest would not be paid, so the expected value is only about $50.[9] The prime rate itself already includes some compensation for risk; as it turns out, about the same amount, yielding another $50.[10]*502 Given the 1.5% risk premium, then, the total expected benefit to respondent was about $100. Against this we must weigh the expected costs of default. While precise calculations are impossible, rough estimates convey a sense of their scale. The first cost of default involves depreciation. If the debtor defaults, the creditor can eventually repossess and sell the collateral, but by then it may be substantially less valuable than the remaining balance due—and the debtor may stop paying long before the creditor receives permission to repossess. When petitioners purchased their truck in this case, its value was almost equal to the principal balance on the loan.[11] By the time the plan was confirmed, however, the truck was worth only $4,000, while the balance on the loan was $4,895. If petitioners were to default on their Chapter 13 payments and if respondent suffered the same relative loss from depreciation, it would amount to about $550.[12] The second cost of default involves liquidation. The $4,000 to which respondent would be entitled if paid in a lump sum reflects the replacement value of the vehicle, i. e., the amount it would cost the debtor to purchase a similar used truck. See Associates Commercial If the debtor defaults, the creditor cannot sell the truck for that amount; it receives only a lesser *503 foreclosure value because collateral markets are not perfectly liquid and there is thus a spread between what a buyer will pay and what a seller will demand. The foreclosure value of petitioners' truck is not in the record, but, using the relative liquidity figures in Rash as a rough guide, respondent would suffer a further loss of about $450.[13] The third cost of default consists of the administrative expenses of foreclosure. While a Chapter 13 plan is in effect, the automatic stay prevents secured creditors from repossessing their collateral, even if the debtor fails to pay. See 11 U.S. C. 362. The creditor's attorney must move the bankruptcy court to lift the stay. 362(d). In the District where this case arose, the filing fee for such motions is now $150. See United States Bankruptcy Court for the Southern District of Indiana, Schedule of Bankruptcy Fees (available in Clerk of Court's case file). And the standard attorney's fee for such motions, according to one survey, is $350 in Indiana and as high as $875 in other States. See J. Cossitt, Chapter 13 Attorney Fee Survey, n Bankruptcy Institute Annual Spring Meeting (available in Clerk of Court's case file). Moreover, bankruptcy judges will often excuse first offenses, so foreclosure may require multiple trips to court. The total expected administrative expenses in the event of default could reasonably be estimated at $600 or more. I have omitted several other costs of default, but the point is already adequately made. The three figures above total $1,600. Even accepting petitioners' low estimate of the plan failure rate, a creditor choosing the stream of future payments instead of the immediate lump sum would be selecting an alternative with an expected cost of about $590 ($1,600 multiplied by 37%, the chance of failure) and an expected *504 benefit of about $100 (as computed above). No rational creditor would make such a choice. The risk premium over prime necessary to make these costs and benefits equal is in the neighborhood of 16%, for a total interest rate of 24%.[14] Of course, many of the estimates I have made can be disputed. Perhaps the truck will depreciate more slowly now than at first, perhaps the collateral market is more liquid than the one in Rash, perhaps respondent can economize on attorney's fees, and perhaps there is some reason (other than judicial optimism) to think the Tills were unlikely to default. I have made some liberal assumptions,[15] but also some conservative ones.[16] When a risk premium is off by an order of magnitude, one's estimates need not be very precise to show that it cannot possibly be correct. In sum, the 1.5% premium adopted in this case is far below anything approaching fair compensation. That result is not unusual, see, e. g., In re ; it is the entirely predictable consequence of a methodology that tells bankruptcy judges to set interest rates based on highly imponderable factors. Given the inherent uncertainty of the enterprise, what heartless bankruptcy judge can be expected to demand that the unfortunate debtor pay triple the prime rate as a condition of keeping his sole means of transportation? It challenges human nature. *505 III JUSTICE THOMAS rejects both the formula approach and the contract-rate approach. He reads the statutory phrase "property to be distributed under the plan," 11 U.S. C. 1325(a)(5)(B)(ii), to mean the proposed payments if made as the plan contemplates, so that the plan need only pay the risk-free rate of interest. Ante, at 487 (opinion concurring in judgment). I would instead read this phrase to mean the right to receive payments that the plan vests in the creditor upon confirmation. Because there is no guarantee that the promised payments will in fact be made, the value of this property right must account for the risk of nonpayment. Viewed in isolation, the phrase is susceptible of either meaning. Both the promise to make payments and the proposed payments themselves are property rights, the former "to be distributed under the plan" immediately upon confirmation, and the latter over the life of the plan. Context, however, supports my reading. The cramdown option which the debtors employed here is only one of three routes to confirmation. The other two—creditor acceptance and collateral surrender, 1325(a)(5)(A), (C)—are both creditor protective, leaving the secured creditor roughly as well off as he would have been had the debtor not sought bankruptcy protection. Given this, it is unlikely the third option was meant to be substantially underprotective; that would render it so much more favorable to debtors that few would ever choose one of the alternatives. The risk-free approach also leads to anomalous results. JUSTICE THOMAS admits that, if a plan distributes a note rather than cash, the value of the "property to be distributed" must reflect the risk of default on the note. Ante, at 488-489. But there is no practical difference between obligating the debtor to make deferred payments under a plan and obligating the debtor to sign a note that requires those same There is no conceivable reason why Congress *506 would give secured creditors risk compensation in one case but not the other. Circuit authority uniformly rejects the risk-free approach. While Circuits addressing the issue are divided over how to calculate risk, to my knowledge all of them require some compensation for risk, either explicitly or implicitly. See In re at ; ; United Carolina ; In re Smithwick, ; In re Kidd, 315 F.3d 6, ; In re Till, ; In re Fisher, 13 (interpreting parallel Chapter 12 provision); In re Fowler, ; In re Hardzog, (Chapter 12); In re Southern States Motor Inns, Inc., 709 F.2d 7, (interpreting similar Chapter 11 provision); see also 8 Collier on Bankruptcy ¶ 1325.06[3][b], p. 1325-37 (rev. 15th ed. 2004). JUSTICE THOMAS identifies no decision adopting his view. Nor does our decision in Rash, support the risk-free approach. There we considered whether a secured creditor's claim should be valued at what the debtor would pay to replace the collateral or at the lower price the creditor would receive from a foreclosure sale. JUSTICE THOMAS contends that Rash selected the former in order to compensate creditors for the risk of plan failure, and that, having compensated them once in that context, we need not do so again here. Ante, at 489. I disagree with this reading of Rash. The Bankruptcy Code provides that "value shall be determined in light of the purpose of the valuation and of the *507 proposed disposition or use of [the] property." 11 U.S. C. 506(a). Rash held that the foreclosure-value approach failed to give effect to this language, because it assigned the same value whether the debtor surrendered the collateral or was allowed to retain it in exchange for promised "From the creditor's perspective as well as the debtor's, surrender and retention are not equivalent acts." We did point out that retention entails risks for the creditor that surrender does not. But we made no effort to correlate that increased risk with the difference between replacement and foreclosure value. And we also pointed out that retention benefits the debtor by allowing him to continue to use the property—a factor we considered "[o]f prime significance." Rash stands for the proposition that surrender and retention are fundamentally different sorts of "disposition or use," calling for different valuations. Nothing in the opinion suggests that we thought the valuation difference reflected the degree of increased risk, or that we adopted the replacement-value standard in order to compensate for increased risk. To the contrary, we said that the debtor's "actual use is the proper guide under a prescription hinged to the property's `disposition or use.'" If Congress wanted to compensate secured creditors for the risk of plan failure, it would not have done so by prescribing a particular method of valuing collateral. A plan may pose little risk even though the difference between foreclosure and replacement values is substantial, or great risk even though the valuation difference is small. For example, if a plan proposes immediate cash payment to the secured creditor, he is entitled to the higher replacement value under Rash even though he faces no risk at all. If the plan calls for deferred payments but the collateral consists of listed securities, the valuation difference may be trivial, but the creditor still faces substantial risks. And a creditor oversecured in even the slightest degree at the time of bankruptcy *508 derives no benefit at all from Rash, but still faces some risk of collateral depreciation.[17] There are very good reasons for Congress to prescribe full risk compensation for creditors. Every action in the free market has a reaction somewhere. If subprime lenders are systematically undercompensated in bankruptcy, they will charge higher rates or, if they already charge the legal maximum under state law, lend to fewer of the riskiest borrowers. As a result, some marginal but deserving borrowers will be denied vehicle loans in the first place. Congress evidently concluded that widespread access to credit is worth preserving, even if it means being ungenerous to sympathetic debtors. * * * Today's judgment is unlikely to burnish the Court's reputation for reasoned decisionmaking. Eight Justices are in agreement that the rate of interest set forth in the debtor's approved plan must include a premium for risk. Of those eight, four are of the view that beginning with the contract rate would most accurately reflect the actual risk, and four are of the view that beginning with the prime lending rate would do so. The ninth Justice takes no position on the latter point, since he disagrees with the eight on the former point; he would reverse because the rate proposed here, being above the risk-free rate, gave respondent no cause for complaint. Because I read the statute to require full risk compensation, and because I would adopt a valuation method that has a realistic prospect of enforcing that directive, I respectfully dissent.

Justice Alito

majority

Salinas v. Texas

2013-06-17

https://www.courtlistener.com/opinion/903977/salinas-v-texas/

https://www.courtlistener.com/api/rest/v3/clusters/903977/

2012-060

Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballis- tics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial pros- ecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guaran- tees that “[n]o person . . . shall be compelled in any crimi- nal case to be a witness against himself.” Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ” Minnesota v. Murphy, 465 U.S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U.S. 2 SALINAS v. TEXAS Opinion of ALITO, J. 424, 427 (1943)). Although “no ritualistic formula is nec- essary in order to invoke the privilege,” Quinn v. United States, 349 U.S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed. I On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. Petitioner’s interview with the police lasted approxi- mately one hour. All agree that the interview was noncusto- dial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Mi- randa v. Arizona, 384 U.S. 436 (1966). For most of the interview, petitioner answered the officer’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” App. 17, petitioner declined to answer. Instead, petitioner “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” Id., at 18. After a few moments of silence, the officer asked addition- al questions, which petitioner answered. Ibid. Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded Cite as: 570 U. S. ____ (2013) 3 Opinion of ALITO, J. that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge peti- tioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name. Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the officer’s question dur- ing the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sen- tence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutors’ use of his si- lence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argu- ment, reasoning that petitioner’s prearrest, pre-Miranda silence was not “compelled” within the meaning of the Fifth Amendment. 368 S.W.3d 550, 557–559 (2011). The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. 369 S.W.3d 176 (2012). We granted certiorari, 568 U. S. ___ (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United States v. Rivera, 944 F.2d 1563, 1568 (CA11 1991), with United States v. Moore, 104 F.3d 377, 386 (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question. II A The privilege against self-incrimination “is an exception to the general principle that the Government has the right 4 SALINAS v. TEXAS Opinion of ALITO, J. to everyone’s testimony.” Garner v. United States, 424 U.S. 648, 658, n. 11 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commis- sioner of Immigration, 273 U.S. 103, 113 (1927). That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U.S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kasti- gar v. United States, 406 U.S. 441, 448 (1972). The ex- press invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer. See Roberts v. United States, 445 U.S. 552, 560, n. 7 (1980) (“A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give”); Hutcheson v. United States, 369 U.S. 599, 610– 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege “assures that the Government obtains all the information to which it is entitled.” Garner, supra, at 658, n. 11. We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. Califor- nia, 380 U.S. 609, 613–615 (1965), that a criminal de- fendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a crim- inal defendant has an “absolute right not to testify.” Turner v. United States, 396 U.S. 398, 433 (1970) (Black, J., dissenting); see United States v. Patane, 542 U.S. 630, Cite as: 570 U. S. ____ (2013) 5 Opinion of ALITO, J. 637 (2004) (plurality opinion). Since a defendant’s reasons for remaining silent at trial are irrelevant to his constitu- tional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because pe- titioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception. Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coer- cion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467–468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.” Murphy, supra, at 429–430. For similar reasons, we have held that threats to with- draw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. Garrity v. New Jersey, 385 U.S. 493, 497 (1967) (public employment). See also Lefkowitz v. Cunningham, 431 U.S. 801, 802–804 (1977) (public office); Lefkowitz v. Turley, 414 U.S. 70, 84–85 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., Leary v. United States, 395 U.S. 6, 28–29 (1969) (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77–79 (1965) (members of the Communist Party not required to complete registration form “where response to 6 SALINAS v. TEXAS Opinion of ALITO, J. any of the form’s questions . . . might involve [them] in the admission of a crucial element of a crime”). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny, or to refuse to answer.’ ” Garner, 424 U. S., at 656–657 (quoting Lisenba v. California, 314 U.S. 219, 241 (1941)). Petitioner cannot benefit from that principle because it is undisputed that his interview with police was volun- tary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and “was free to leave at any time during the interview.” Brief for Peti- tioner 2–3 (internal quotation marks omitted). That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from volun- tarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposi- tion that “[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment.” Post, at 7–8 (opinion of BREYER, J.). The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was invol- untary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment. B Petitioner urges us to adopt a third exception to the in- vocation requirement for cases in which a witness stands mute and thereby declines to give an answer that of- ficials suspect would be incriminating. Our cases all but Cite as: 570 U. S. ____ (2013) 7 Opinion of ALITO, J. foreclose such an exception, which would needlessly bur- den the Government’s interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner’s invitation to craft a new exception to the “general rule” that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U. S., at 429. Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In Roberts v. United States, 445 U.S. 552, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that “if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have deter- mined whether his claim was legitimate.” Id., at 560. See also United States v. Sullivan, 274 U.S. 259, 263–264 (1927); Vajtauer, 273 U. S., at 113.1 A witness does not expressly invoke the privilege by standing mute. We have also repeatedly held that the express invoca- tion requirement applies even when an official has reason to suspect that the answer to his question would incrim- inate the witness. Thus, in Murphy we held that the defendant’s self-incriminating answers to his probation of- ficer were properly admitted at trial because he failed to invoke the privilege. 465 U. S., at 427–428. In reaching that conclusion, we rejected the notion “that a witness —————— 1 The dissent argues that in these cases “neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment.” Post, at 5–6 (opinion of BREYER, J.). But none of our precedents sug- gests that governmental officials are obliged to guess at the meaning of a witness’ unexplained silence when implicit reliance on the Fifth Amendment seems probable. Roberts does not say as much, despite its holding that the defendant in that case was required to explain the Fifth Amendment basis for his failure to cooperate with an investiga- tion that led to his prosecution. 445 U. S., at 559. 8 SALINAS v. TEXAS Opinion of ALITO, J. must ‘put the Government on notice by formally availing himself of the privilege’ only when he alone ‘is reasonably aware of the incriminating tendency of the questions.’ ” Id., at 428 (quoting Roberts, supra, at 562, n.* (Brennan, J., concurring)). See also United States v. Kordel, 397 U.S. 1, 7 (1970).2 Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, peti- tioner would have us hold that although neither a wit- ness’ silence nor official suspicions are enough to excuse the express invocation requirement, the invocation require- ment does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we con- clude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt. Petitioner’s proposed exception would also be very diffi- cult to reconcile with Berghuis v. Thompkins, 560 U.S. 370 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the —————— 2 Our cases do not support the distinction the dissent draws between silence and the failure to invoke the privilege before making incriminat- ing statements. See post, at 7 (BREYER, J., dissenting). For example, Murphy, a case in which the witness made incriminating statements after failing to invoke the privilege, repeatedly relied on Roberts and Vajtauer—two cases in which witnesses remained silent and did not make incriminating statements. 465 U. S., at 427, 429, 455–456, n. 20. Similarly, Kordel cited Vajtauer, among other cases, for the proposition that the defendant’s “failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.” 397 U. S., at 10, and n. 18. Cite as: 570 U. S. ____ (2013) 9 Opinion of ALITO, J. privilege when he refused to respond to police questioning for 2 hours and 45 minutes. 560 U. S., at ___ (slip op., at 3, 8–10). If the extended custodial silence in that case did not invoke the privilege, then surely the momentary si- lence in this case did not do so either. Petitioner and the dissent attempt to distinguish Berg- huis by observing that it did not concern the admissi- bility of the defendant’s silence but instead involved the admissibility of his subsequent statements. Post, at 8–9 (opinion of BREYER, J.). But regardless of whether prose- cutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.3 In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reli- ance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 9–10 (BREYER, J., dissenting). But whatever the most probable explanation, such silence is “insolubly ambiguous.” See Doyle, v. Ohio, 426 U.S. 610, 617 (1976). To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amend- ment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to —————— 3 Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle v. Ohio, 426 U.S. 610, 617–618 (1976), but that rule does not apply where a suspect has not received the warnings’ implicit promise that any silence will not be used against him, Jenkins v. Anderson, 447 U.S. 231, 240 (1980). 10 SALINAS v. TEXAS Opinion of ALITO, J. make a timely assertion of the privilege.” Garner, 424 U. S., at 655. At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain si- lent.” Tr. of Oral Arg. 26–27; see post, at 10 (BREYER, J., dissenting); Michigan v. Tucker, 417 U.S. 433, 439 (1974) (observing that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment). But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself ”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See Hoffman, 341 U. S., at 486–487.4 In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U. S., at 427–428; Garner, supra, at 654, n. 9. State- ments against interest are regularly admitted into evi- dence at criminal trials, see Fed. Rule of Evid. 804(b)(3), and there is no good reason to approach a defendant’s silence any differently. C Finally, we are not persuaded by petitioner’s arguments —————— 4 The dissent suggests that officials in this case had no “special need to know whether the defendant sought to rely on the protections of the Fifth Amendment.” Post, at 4 (opinion of BREYER, J.). But we have never said that the government must demonstrate such a need on a case-by-case basis for the invocation requirement to apply. Any such rule would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the Fifth Amendment. Cite as: 570 U. S. ____ (2013) 11 Opinion of ALITO, J. that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will “unleash complicated and persistent litigation” over what a suspect must say to invoke the privilege, Reply Brief 18; see post, at 11–12 (opinion of BREYER, J.), but our cases have long required that a witness assert the privilege to subse- quently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for sus- pects who wish to assert their rights and cut off police questioning during custodial interviews. Berghuis, 560 U. S., at ___ (slip op., at 8–10) (requiring suspect to unam- biguously assert privilege against self-incrimination to cut off custodial questioning); Davis v. United States, 512 U.S. 452, 459 (1994) (same standard for assertions of the right to counsel). Notably, petitioner’s approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing officer asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At pre- cisely what point such reactions transform “silence” into expressive conduct would be a difficult and recurring question that our decision allows us to avoid. We also reject petitioner’s argument that an express invocation requirement will encourage police officers to “ ‘unfairly “tric[k]” ’ ” suspects into cooperating. Reply Brief 21 (quoting South Dakota v. Neville, 459 U.S. 553, 566 (1983)). Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution. But as petitioner himself concedes, police officers “have done nothing wrong” when they “accurately stat[e] the law.” 12 SALINAS v. TEXAS Opinion of ALITO, J. Brief for Petitioner 32. We found no constitutional infir- mity in government officials telling the defendant in Mur- phy that he was required to speak truthfully to his parole officer, 465 U. S., at 436–438, and we see no greater dan- ger in the interview tactics petitioner identifies. So long as police do not deprive a witness of the ability to volun- tarily invoke the privilege, there is no Fifth Amendment violation. * * * Before petitioner could rely on the privilege against self- incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Crimi- nal Appeals is affirmed. It is so ordered. Cite as: 570 U. S. ____ (2013) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 12–246 _________________ GENOVEVO SALINAS, PETITIONER v. TEXAS ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS [June 17, 2013] JUSTICE THOMAS, with whom JUSTICE SCALIA joins, con- curring in the judgment. We granted certiorari to decide whether the Fifth Amend- ment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant’s pre- custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege. Ante, at 3. I think there is a simpler way to resolve this case. In my view, Salinas’ claim would fail even if he had invoked the privilege be- cause the prosecutor’s comments regarding his precusto- dial silence did not compel him to give self-incriminating testimony. In Griffin v. California, 380 U.S. 609 (1965), this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify. Id., at 614. The Court reasoned that such comments, and any adverse inferences drawn from them, are a “penalty” imposed on the defendant’s exercise of his Fifth Amend- ment privilege. Ibid. Salinas argues that we should extend Griffin’s no-adverse-inference rule to a defendant’s silence during a precustodial interview. I have previously explained that the Court’s decision in Griffin “lacks foun- dation in the Constitution’s text, history, or logic” and should not be extended. See Mitchell v. United States, 526 2 SALINAS v. TEXAS THOMAS, J., concurring in judgment U. S. 314, 341 (1999) (dissenting opinion). I adhere to that view today. Griffin is impossible to square with the text of the Fifth Amendment, which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” A defendant is not “compelled . . . to be a witness against himself ” simply because a jury has been told that it may draw an adverse inference from his silence. See Mitchell, supra, at 331 (SCALIA, J., dissenting) (“[T]he threat of an adverse inference does not ‘compel’ anyone to testify. . . . Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony”); Carter v. Kentucky, 450 U.S. 288, 306 (1981) (Powell, J., concurring) (“[N]othing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”). Nor does the history of the Fifth Amendment support Griffin. At the time of the founding, English and Ameri- can courts strongly encouraged defendants to give un- sworn statements and drew adverse inferences when they failed to do so. See Mitchell, supra, at 332 (SCALIA, J., dissenting); Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination 204 (R. Hemholz et al. eds. 1997). Given Griffin’s indefen- sible foundation, I would not extend it to a defendant’s silence during a precustodial interview. I agree with the plurality that Salinas’ Fifth Amendment claim fails and, therefore, concur in the judgment. Cite as: 570 U. S. ____ (2013) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–246 _________________ GENOVEVO SALINAS, PETITIONER v.

Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police who was investigating a murder. But petitioner balked when the asked whether a ballis- tics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial pros- ecutors argued that his reaction to the ’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guaran- tees that “[n]o person shall be compelled in any crimi- nal case to be a witness against himself.” Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the ’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ” 425, 427 (1984) (quoting United States v. Monia, 317 U.S. 2 SALINAS v. TEXAS Opinion of ALITO, J. 424, 427 (1943)). Although “no ritualistic formula is nec- essary in order to invoke the privilege,” a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed. I On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. Petitioner’s interview with the police lasted approxi- mately one hour. All agree that the interview was noncusto- dial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Mi- For most of the interview, petitioner answered the ’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” App. 17, petitioner declined to answer. Instead, petitioner “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” After a few moments of silence, the asked addition- al questions, which petitioner answered. Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded Cite as: 570 U. S. (2013) 3 Opinion of ALITO, J. that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge peti- tioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name. Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the ’s question dur- ing the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sen- tence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutors’ use of his si- lence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argu- ment, reasoning that petitioner’s prearrest, pre-Miranda silence was not “compelled” within the meaning of the Fifth Amendment. The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. We granted certiorari, 568 U. S. (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United with United (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question. II A The privilege against self-incrimination “is an exception to the general principle that the Government has the right 4 SALINAS v. TEXAS Opinion of ALITO, J. to everyone’s testimony.” v. United States, 424 U.S. 648, 658, n. 11 To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who “ ‘desires the protection of the privilege must claim it’ ” at the time he relies on it. (quoting Monia, 317 U. S., at 427). See also United States ex rel. That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see or cure any potential self-incrimination through a grant of immunity, see Kasti- The ex- press invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer. See n. 7 (“A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give”); 610– 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege “assures that the Government obtains all the information to which it is entitled.” We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in that a criminal de- fendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a crim- inal defendant has an “absolute right not to testify.” (Black, J., dissenting); see United Cite as: 570 U. S. (2013) 5 Opinion of ALITO, J. 637 (2004) (plurality opinion). Since a defendant’s reasons for remaining silent at trial are irrelevant to his constitu- tional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because pe- titioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception. Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coer- cion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the 384 U. S., at 467–468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.” at 429–430. For similar reasons, we have held that threats to with- draw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. See also (public office); 84–85 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77–79 (members of the Communist Party not required to complete registration form “where response to 6 SALINAS v. TEXAS Opinion of ALITO, J. any of the form’s questions might involve [them] in the admission of a crucial element of a crime”). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny, or to refuse to answer.’ ” –657 ). Petitioner cannot benefit from that principle because it is undisputed that his interview with police was volun- tary. As petitioner himself acknowledges, he agreed to accompany the s to the station and “was free to leave at any time during the interview.” Brief for Peti- tioner 2–3 (internal quotation marks omitted). That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from volun- tarily invoking the The dissent elides this point when it cites our precedents in this area for the proposi- tion that “[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment.” Post, at 7–8 (opinion of BREYER, J.). The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was invol- untary, and it would have been a simple matter for him to say that he was not answering the ’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment. B Petitioner urges us to adopt a third exception to the in- vocation requirement for cases in which a witness stands mute and thereby declines to give an answer that of- ficials suspect would be incriminating. Our cases all but Cite as: 570 U. S. (2013) 7 Opinion of ALITO, J. foreclose such an exception, which would needlessly bur- den the Government’s interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner’s invitation to craft a new exception to the “general rule” that a witness must assert the privilege to subsequently benefit from it. Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In v. United States, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that “if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have deter- mined whether his claim was legitimate.” at See also United 263–264 ; 273 U. S., at1 A witness does not expressly invoke the privilege by standing mute. We have also repeatedly held that the express invoca- tion requirement applies even when an official has reason to suspect that the answer to his question would incrim- inate the witness. Thus, in we held that the defendant’s self-incriminating answers to his probation of- ficer were properly admitted at trial because he failed to invoke the –428. In reaching that conclusion, we rejected the notion “that a witness —————— 1 The dissent argues that in these cases “neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment.” Post, at 5–6 (opinion of BREYER, J.). But none of our precedents sug- gests that governmental officials are obliged to guess at the meaning of a witness’ unexplained silence when implicit reliance on the Fifth Amendment seems probable. does not say as much, despite its holding that the defendant in that case was required to explain the Fifth Amendment basis for his failure to cooperate with an investiga- tion that led to his 8 SALINAS v. TEXAS Opinion of ALITO, J. must ‘put the Government on notice by formally availing himself of the privilege’ only when he alone ‘is reasonably aware of the incriminating tendency of the questions.’ ” (quoting n.* (Brennan, J., concurring)). See also United States v. Kordel, 397 U.S. 1, 72 Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, peti- tioner would have us hold that although neither a wit- ness’ silence nor official suspicions are enough to excuse the express invocation requirement, the invocation require- ment does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we con- clude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt. Petitioner’s proposed exception would also be very diffi- cult to reconcile with Berghuis v. Thompkins, U.S. 370 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the —————— 2 Our cases do not support the distinction the dissent draws between silence and the failure to invoke the privilege before making incriminat- ing See post, at 7 (BREYER, J., dissenting). For example, a case in which the witness made incriminating statements after failing to invoke the privilege, repeatedly relied on and —two cases in which witnesses remained silent and did not make incriminating 429, 455–456, n. 20. Similarly, Kordel cited among other cases, for the proposition that the defendant’s “failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.” and n. 18. Cite as: 570 U. S. (2013) 9 Opinion of ALITO, J. privilege when he refused to respond to police questioning for 2 hours and 45 minutes. U. S., at (slip op., at 3, 8–10). If the extended custodial silence in that case did not invoke the privilege, then surely the momentary si- lence in this case did not do so either. Petitioner and the dissent attempt to distinguish Berg- huis by observing that it did not concern the admissi- bility of the defendant’s silence but instead involved the admissibility of his subsequent Post, at 8–9 (opinion of BREYER, J.). But regardless of whether prose- cutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment 3 In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reli- ance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 9–10 (BREYER, J., dissenting). But whatever the most probable explanation, such silence is “insolubly ambiguous.” See 617 To be sure, someone might decline to answer a police ’s question in reliance on his constitutional But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amend- ment. Petitioner alone knew why he did not answer the ’s question, and it was therefore his “burden to —————— 3 Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, but that rule does not apply where a suspect has not received the warnings’ implicit promise that any silence will not be used against him, Jenkins v. Anderson, 10 SALINAS v. TEXAS Opinion of ALITO, J. make a timely assertion of the ” 424 U. S., at 655. At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain si- lent.” Tr. of Oral Arg. 26–27; see post, at 10 (BREYER, J., dissenting); 417 U.S. (observing that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment). But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself ”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See 341 U. S., at –487.4 In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. –428; State- ments against interest are regularly admitted into evi- dence at criminal trials, see Fed. Rule of Evid. 804(b)(3), and there is no good reason to approach a defendant’s silence any differently. C Finally, we are not persuaded by petitioner’s arguments —————— 4 The dissent suggests that officials in this case had no “special need to know whether the defendant sought to rely on the protections of the Fifth Amendment.” Post, at 4 (opinion of BREYER, J.). But we have never said that the government must demonstrate such a need on a case-by-case basis for the invocation requirement to apply. Any such rule would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the Fifth Amendment. Cite as: 570 U. S. (2013) 11 Opinion of ALITO, J. that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will “unleash complicated and persistent litigation” over what a suspect must say to invoke the privilege, Reply Brief 18; see post, at 11–12 (opinion of BREYER, J.), but our cases have long required that a witness assert the privilege to subse- quently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for sus- pects who wish to assert their rights and cut off police questioning during custodial interviews. Berghuis, U. S., at (slip op., at 8–10) (requiring suspect to unam- biguously assert privilege against self-incrimination to cut off custodial questioning); Davis v. United States, 512 U.S. 452, 459 (1994) (same standard for assertions of the right to counsel). Notably, petitioner’s approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At pre- cisely what point such reactions transform “silence” into expressive conduct would be a difficult and recurring question that our decision allows us to avoid. We also reject petitioner’s argument that an express invocation requirement will encourage police s to “ ‘unfairly “tric[k]” ’ ” suspects into cooperating. Reply Brief 21 (quoting South (1983)). Petitioner worries that s could unduly pressure suspects into talking by telling them that their silence could be used in a future But as petitioner himself concedes, police s “have done nothing wrong” when they “accurately stat[e] the law.” 12 SALINAS v. TEXAS Opinion of ALITO, J. Brief for Petitioner 32. We found no constitutional infir- mity in government officials telling the defendant in Mur- phy that he was required to speak truthfully to his parole –438, and we see no greater dan- ger in the interview tactics petitioner identifies. So long as police do not deprive a witness of the ability to volun- tarily invoke the privilege, there is no Fifth Amendment violation. * * * Before petitioner could rely on the privilege against self- incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Crimi- nal Appeals is affirmed. It is so ordered. Cite as: 570 U. S. (2013) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 12–246 GENOVEVO SALINAS, PETITIONER v. TEXAS ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS [June 17, 2013] JUSTICE THOMAS, with whom JUSTICE SCALIA joins, con- curring in the judgment. We granted certiorari to decide whether the Fifth Amend- ment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant’s pre- custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas’ Fifth Amendment claim fails because he did not expressly invoke the Ante, at 3. I think there is a simpler way to resolve this case. In my view, Salinas’ claim would fail even if he had invoked the privilege be- cause the prosecutor’s comments regarding his precusto- dial silence did not compel him to give self-incriminating testimony. In this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify. The Court reasoned that such comments, and any adverse inferences drawn from them, are a “penalty” imposed on the defendant’s exercise of his Fifth Amend- ment Salinas argues that we should extend Griffin’s no-adverse-inference rule to a defendant’s silence during a precustodial interview. I have previously explained that the Court’s decision in Griffin “lacks foun- dation in the Constitution’s text, history, or logic” and should not be extended. See v. United States, 526 2 SALINAS v. TEXAS THOMAS, J., concurring in judgment U. S. 314, 341 (1999) (dissenting opinion). I adhere to that view today. Griffin is impossible to square with the text of the Fifth Amendment, which provides that “[n]o person shall be compelled in any criminal case to be a witness against himself.” A defendant is not “compelled to be a witness against himself ” simply because a jury has been told that it may draw an adverse inference from his silence. See (“[T]he threat of an adverse inference does not ‘compel’ anyone to testify. Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony”); (Powell, J., concurring) (“[N]othing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”). Nor does the history of the Fifth Amendment support Griffin. At the time of the founding, English and Ameri- can courts strongly encouraged defendants to give un- sworn statements and drew adverse inferences when they failed to do so. See (SCALIA, J., dissenting); Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination 204 (R. Hemholz et al. eds. 1997). Given Griffin’s indefen- sible foundation, I would not extend it to a defendant’s silence during a precustodial interview. I agree with the plurality that Salinas’ Fifth Amendment claim fails and, therefore, concur in the judgment. Cite as: 570 U. S. (2013) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–246 GENOVEVO SALINAS, PETITIONER v.

Justice Breyer

dissenting

Salinas v. Texas

2013-06-17

https://www.courtlistener.com/opinion/903977/salinas-v-texas/

https://www.courtlistener.com/api/rest/v3/clusters/903977/

2012-060

In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning. And I dissent from the Court’s contrary conclusion. I In January 1993, Houston police began to suspect peti- tioner Genovevo Salinas of having committed two murders the previous month. They asked Salinas to come to the police station “to take photographs and to clear him as [a] suspect.” App. 3. At the station, police took Salinas into what he describes as “an interview room.” Brief for Peti- tioner 3. Because he was “free to leave at that time,” App. 14, they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder.” Id., at 17. At that point Salinas fell silent. Ibid. Salinas was later tried for, and convicted of, murder. At closing argument, drawing on testimony he had elicited earlier, the prosecutor pointed out to the jury that Salinas, during his earlier questioning at the police station, had remained silent when asked about the shotgun. The prosecutor told the jury, among other things, that “ ‘[a]n 2 SALINAS v. TEXAS BREYER, J., dissenting innocent person’ ” would have said, “ ‘What are you talking about? I didn’t do that. I wasn’t there.’ ” 368 S.W.3d 550, 556 (Tex. Ct. App. 2011). But Salinas, the prosecutor said, “ ‘didn’t respond that way.’ ” Ibid. Rather, “ ‘[h]e wouldn’t answer that question.’ ” Ibid. II The question before us is whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting upon the evidence about Salinas’ silence. The plurality believes that the Amendment does not bar the evidence and comments because Salinas “did not expressly invoke the privilege against self-incrimination” when he fell silent during the questioning at the police station. Ante, at 1. But, in my view, that conclusion is inconsistent with this Court’s case law and its underlying practical rationale. A The Fifth Amendment prohibits prosecutors from com- menting on an individual’s silence where that silence amounts to an effort to avoid becoming “a witness against himself.” This Court has specified that “a rule of evidence” permitting “commen[t] . . . by counsel” in a criminal case upon a defendant’s failure to testify “violates the Fifth Amendment.” Griffin v. California, 380 U.S. 609, 610, n. 2, 613 (1965) (internal quotation marks omitted). See also United States v. Patane, 542 U.S. 630, 637 (2004) (plurality opinion); Turner v. United States, 396 U.S. 398, 433 (1970) (Black, J., dissenting). And, since “it is imper- missible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation,” the “prosecution may not . . . use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436, 468, n. 37 (1966) (emphasis added). Particularly in the context of police interrogation, a Cite as: 570 U. S. ____ (2013) 3 BREYER, J., dissenting contrary rule would undermine the basic protection that the Fifth Amendment provides. Cf. Kastigar v. United States, 406 U.S. 441, 461 (1972) (“The privilege . . . usu- ally operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer”). To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossi- ble predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associ- ates, or suspicious circumstances—even if he is innocent. See, e.g., Griffin, supra, at 613; Kassin, Inside Interroga- tion: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissi- ble. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself ”—very much what the Fifth Amendment forbids. Cf. Pennsylva- nia v. Muniz, 496 U.S. 582, 596–597 (1990) (definition of “testimonial” includes responses to questions that require a suspect to communicate an express or implied assertion of fact or belief). And that is similarly so whether the questioned individual, as part of his decision to remain silent, invokes the Fifth Amendment explicitly or implic- itly, through words, through deeds, or through reference to surrounding circumstances. B It is consequently not surprising that this Court, more than half a century ago, explained that “no ritualistic formula is necessary in order to invoke the privilege.” 4 SALINAS v. TEXAS BREYER, J., dissenting Quinn v. United States, 349 U.S. 155, 164 (1955). Thus, a prosecutor may not comment on a defendant’s failure to testify at trial—even if neither the defendant nor anyone else ever mentions a Fifth Amendment right not to do so. Circumstances, not a defendant’s statement, tie the de- fendant’s silence to the right. Similarly, a prosecutor may not comment on the fact that a defendant in custody, after receiving Miranda warnings, “stood mute”—regardless of whether he “claimed his privilege” in so many words. Miranda, supra, at 468, n. 37. Again, it is not any explicit statement but, instead, the defendant’s deeds (silence) and circumstances (receipt of the warnings) that tie together silence and constitutional right. Most lower courts have so construed the law, even where the defendant, having received Miranda warnings, answers some questions while remaining silent as to others. See, e.g., Hurd v. Terhune, 619 F.3d 1080, 1087 (CA9 2010); United States v. May, 52 F.3d 885, 890 (CA10 1995); United States v. Scott, 47 F.3d 904, 907 (CA7 1995); United States v. Can- terbury, 985 F.2d 483, 486 (CA10 1993); Grieco v. Hall, 641 F.2d 1029, 1034 (CA1 1981); United States v. Ghiz, 491 F.2d 599, 600 (CA4 1974). But see, e.g., United States v. Harris, 956 F.2d 177, 181 (CA8 1992). The cases in which this Court has insisted that a de- fendant expressly mention the Fifth Amendment by name in order to rely on its privilege to protect silence are cases where (1) the circumstances surrounding the silence (un- like the present case) did not give rise to an inference that the defendant intended, by his silence, to exercise his Fifth Amendment rights; and (2) the questioner greeted by the silence (again unlike the present case) had a special need to know whether the defendant sought to rely on the protections of the Fifth Amendment. See ante, at 4 (ex- plaining that, in such cases, the government needs to know the basis for refusing to answer “so that it may either argue that the testimony sought could not be self- Cite as: 570 U. S. ____ (2013) 5 BREYER, J., dissenting incriminating or cure any potential self-incrimination through a grant of immunity” (citation omitted)). These cases include Roberts, Rogers, Sullivan, Vajtauer, and Jenkins—all of which at least do involve the protection of silence—and also include cases emphasized by the plural- ity that are not even about silence—namely, Murphy and Garner. In Roberts and Rogers, the individual refused to answer questions that government investigators (in Roberts) and a grand jury (in Rogers) asked, principally because the individual wanted to avoid incriminating other persons. Roberts v. United States, 445 U.S. 552, 553–556 (1980); Rogers v. United States, 340 U.S. 367, 368–370, and n. 4 (1951). But the Fifth Amendment does not protect some- one from incriminating others; it protects against self- incrimination. In turn, neither the nature of the questions nor the circumstances of the refusal to answer them pro- vided any basis to infer a tie between the silence and the Fifth Amendment, while knowledge of any such tie would have proved critical to the questioner’s determination as to whether the defendant had any proper legal basis for claiming Fifth Amendment protection. In Sullivan, the defendant’s silence consisted of his failure to file a tax return—a return, he later claimed, that would have revealed his illegal activity as a bootlegger. United States v. Sullivan, 274 U.S. 259, 262–264 (1927). The circumstances did not give rise to an inference of a tie between his silence (in the form of failing to file a tax return) and the Fifth Amendment; and, if he really did want to rely on the Fifth Amendment, then the govern- ment would have had special need to know of any such tie in order to determine whether, for example, the assertion of privilege was valid and, perhaps, an offer of immunity was appropriate. In Vajtauer, an alien refused to answer questions asked by an immigration official at a deportation proceeding. 6 SALINAS v. TEXAS BREYER, J., dissenting United States ex rel. Vajtauer v. Commissioner of Immi- gration, 273 U.S. 103, 113 (1927). Here, the circumstances gave rise to a distinct inference that the alien was not invoking any Fifth Amendment privilege: The alien’s lawyer had stated quite publicly at the hearing that he advised his client to remain silent not on Fifth Amend- ment grounds; rather, the lawyer “ ‘advise[d] the alien not to answer any further questions until the evidence upon which the warrant is based will be presented here.’ ” Id., at 106–107 (quoting the lawyer). This statement weak- ened or destroyed the possibility of a silence-Fifth Amendment linkage; the Government could not challenge his right to invoke the Fifth Amendment; and this Court described its later invocation as “evidently an after- thought.” Id., at 113. Perhaps most illustrative is Jenkins, a case upon which the plurality relies, ante, at 9, n. 3, and upon which the Texas Court of Criminal Appeals relied almost exclusively, 369 S.W.3d 176, 178–179 (2012). Jenkins killed some- one, and was not arrested until he turned himself in two weeks later. Jenkins v. Anderson, 447 U.S. 231, 232 (1980). On cross-examination at his trial, Jenkins claimed that his killing was in self-defense after being attacked. Id., at 232–233. The prosecutor then asked why he did not report the alleged attack, and in closing argument sug- gested that Jenkins’ failure to do so cast doubt on his claim to have acted in self-defense. Id., at 233–234. We explained that this unusual form of “prearrest silence” was not constitutionally protected from use at trial. Id., at 240. Perhaps even more aptly, Justice Stevens’ concur- rence noted that “the privilege against compulsory self- incrimination is simply irrelevant” in such circumstances. Id., at 241 (footnote omitted). How would anyone have known that Jenkins, while failing to report an attack, was relying on the Fifth Amendment? And how would the government have had any way of determining whether his Cite as: 570 U. S. ____ (2013) 7 BREYER, J., dissenting claim was valid? In Jenkins, as in Roberts, Rogers, Sulli- van, and Vajtauer, no one had any reason to connect si- lence to the Fifth Amendment; and the government had no opportunity to contest any alleged connection. Still further afield from today’s case are Murphy and Garner, neither of which involved silence at all. Rather, in both cases, a defendant had earlier answered questions posed by the government—in Murphy, by speaking with a probation officer, and in Garner, by completing a tax return. Minnesota v. Murphy, 465 U.S. 420, 422–425 (1984); Garner v. United States, 424 U.S. 648, 649–650 (1976). At the time of providing answers, neither circum- stances nor deeds nor words suggested reliance on the Fifth Amendment: Murphy simply answered questions posed by his probation officer; Garner simply filled out a tax return. They did not argue that their self- incriminating statements had been “compelled” in viola- tion of the Fifth Amendment until later, at trial. Murphy, supra, at 425, 431; Garner, supra, at 649, 665. The Court held that those statements were not compelled. Murphy, supra, at 440; Garner, supra, at 665. The circumstances indicated that the defendants had affirmatively chosen to speak and to write. Thus, we have two sets of cases: One where express invocation of the Fifth Amendment was not required to tie one’s silence to its protections, and another where some- thing like express invocation was required, because cir- cumstances demanded some explanation for the silence (or the statements) in order to indicate that the Fifth Amendment was at issue. There is also a third set of cases, cases that may well fit into the second category but where the Court has held that the Fifth Amendment both applies and does not require express invocation despite ambiguous circumstances. The Court in those cases has made clear that an individual, when silent, need not expressly invoke the Fifth Amend- 8 SALINAS v. TEXAS BREYER, J., dissenting ment if there are “inherently compelling pressures” not to do so. Miranda, 384 U. S., at 467. Thus, in Garrity v. New Jersey, 385 U.S. 493, 497 (1967), the Court held that no explicit assertion of the Fifth Amendment was required where, in the course of an investigation, such assertion would, by law, have cost police officers their jobs. Similarly, this Court did not require explicit assertion in response to a grand jury subpoena where that assertion would have cost two architects their public contracts or a political official his job. Lefkowitz v. Turley, 414 U.S. 70, 75–76 (1973); Lefkowitz v. Cunningham, 431 U.S. 801, 802–804 (1977). In Leary v. United States, 395 U.S. 6, 28–29 (1969), the Court held that the Fifth Amendment did not require explicit assertion of the privilege against self- incrimination because, in the context of the Marihuana Tax Act, such assertion would have been inherently in- criminating. In Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77–79 (1965), we held the same where explicit assertion of the Fifth Amendment would have required, as a first step, the potentially incriminating admission of membership in the Communist Party. The Court has also held that gamblers, without explicitly invoking the Fifth Amendment, need not comply with tax requirements that would, inherently and directly, lead to self-incrimination. Marchetti v. United States, 390 U.S. 39, 60–61 (1968); Grosso v. United States, 390 U.S. 62, 67–68 (1968). All told, this third category of cases receives the same treatment as the first: Circumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment. So, too, in today’s case. The plurality refers to one additional case, namely Berghuis v. Thompkins, 560 U.S. 370 (2010). See ante, at 8. But that case is here beside the point. In Berghuis, the defendant was in custody, he had been informed of his Miranda rights, and he was subsequently silent in the face of 2 hours and 45 minutes of questioning before he Cite as: 570 U. S. ____ (2013) 9 BREYER, J., dissenting offered any substantive answers. Id., at ___–___ (slip op., at 2–4). The Court held that he had waived his Fifth Amendment rights in respect to his later speech. The Court said nothing at all about a prosecutor’s right to comment on his preceding silence and no prosecutor sought to do so. Indeed, how could a prosecutor lawfully have tried to do so, given this Court’s statement in Mi- randa itself that a prosecutor cannot comment on the fact that, after receiving Miranda warnings, the suspect “stood mute”? 384 U. S., at 468, n. 37. We end where we began. “[N]o ritualistic formula is necessary in order to invoke the privilege.” Quinn, 349 U. S., at 164. Much depends on the circumstances of the particular case, the most important circumstances being: (1) whether one can fairly infer that the individual being questioned is invoking the Amendment’s protection; (2) if that is unclear, whether it is particularly important for the questioner to know whether the individual is doing so; and (3) even if it is, whether, in any event, there is a good reason for excusing the individual from referring to the Fifth Amendment, such as inherent penalization simply by answering. C Applying these principles to the present case, I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder. See 368 S.W. 3d, at 552–553. These circumstances give rise to a reasonable inference 10 SALINAS v. TEXAS BREYER, J., dissenting that Salinas’ silence derived from an exercise of his Fifth Amendment rights. This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpe- trator of a crime. See Dickerson v. United States, 530 U.S. 428, 443 (2000); Brogan v. United States, 522 U.S. 398, 405 (1998); Michigan v. Tucker, 417 U.S. 433, 439 (1974). The nature of the surroundings, the switch of topic, the particular question—all suggested that the right we have and generally know we have was at issue at the critical moment here. Salinas, not being represented by counsel, would not likely have used the precise words “Fifth Amendment” to invoke his rights because he would not likely have been aware of technical legal require- ments, such as a need to identify the Fifth Amendment by name. At the same time, the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose be- tween incrimination through speech and incrimination through silence. That need is also supported by the ab- sence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, 341 U.S. 479, 486 (1951), or whether to grant immunity, see Kastigar, 406 U. S., at 448. Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of the privilege.” Quinn, supra, at 164. That being so, for rea- sons similar to those given in Griffin, the Fifth Amend- ment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor. See 380 U. S., at 614–615. Cite as: 570 U. S. ____ (2013) 11 BREYER, J., dissenting D I recognize that other cases may arise where facts and circumstances surrounding an individual’s silence present a closer question. The critical question—whether those circumstances give rise to a fair inference that the silence rests on the Fifth Amendment—will not always prove easy to administer. But that consideration does not support the plurality’s rule-based approach here, for the administra- tive problems accompanying the plurality’s approach are even worse. The plurality says that a suspect must “expressly invoke the privilege against self-incrimination.” Ante, at 1. But does it really mean that the suspect must use the exact words “Fifth Amendment”? How can an individual who is not a lawyer know that these particular words are legally magic? Nor does the Solicitor General help when he adds that the suspect may “mak[e] the claim ‘in any language that [the questioner] may reasonably be expected to un- derstand as an attempt to invoke the privilege.’ ” Brief for United States as Amicus Curiae 22 (quoting Quinn, supra, at 162–163; alteration in original). What counts as “mak- ing the claim”? Suppose the individual says, “Let’s discuss something else,” or “I’m not sure I want to answer that”; or suppose he just gets up and leaves the room. Cf. Davis v. Mississippi, 394 U.S. 721, 727, n. 6 (1969) (affirming “the settled principle that while the police have the right to request citizens to answer voluntarily questions concern- ing unsolved crimes[,] they have no right to compel them to answer”); Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (noting that even someone detained in a Terry stop “is not obliged to respond” to police questions); Florida v. Royer, 460 U.S. 491, 497–498 (1983) (plurality opinion). How is simple silence in the present context any different? The basic problem for the plurality is that an effort to have a simple, clear “explicit statement” rule poses a serious obstacle to those who, like Salinas, seek to assert 12 SALINAS v. TEXAS BREYER, J., dissenting their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail. At the same time, acknowledging that our case law does not require use of specific words, see ante, at 2, leaves the plurality without the administrative benefits it might hope to find in requiring that detail. Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege? The need for simplicity, the constitutional importance of applying the Fifth Amend- ment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today’s case is clearly: yes. For these reasons, I believe that the Fifth Amendment prohibits a prosecutor from commenting on Salinas’s silence. I respectfully dissent from the Court’s contrary conclusion

In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning. And I dissent from the Court’s contrary conclusion. I In January Houston police began to suspect peti- tioner Genovevo Salinas of having committed two murders the previous month. They asked Salinas to come to the police station “to take photographs and to clear him as [a] suspect.” App. 3. At the station, police took Salinas into what he describes as “an interview room.” Brief for Peti- tioner 3. Because he was “free to leave at that time,” App. 14, they did not give him warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder.” At that point Salinas fell silent. Salinas was later tried for, and convicted of, murder. At closing argument, drawing on testimony he had elicited earlier, the prosecutor pointed out to the jury that Salinas, during his earlier questioning at the police station, had remained silent when asked about the shotgun. The prosecutor told the jury, among other things, that “ ‘[a]n 2 SALINAS v. TEXAS BREYER, J., dissenting innocent person’ ” would have said, “ ‘What are you talking about? I didn’t do that. I wasn’t there.’ ” 368 S.W.3d 550, 556 (Tex. Ct. App. 2011). But Salinas, the prosecutor said, “ ‘didn’t respond that way.’ ” Rather, “ ‘[h]e wouldn’t answer that question.’ ” II The question before us is whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting upon the evidence about Salinas’ silence. The plurality believes that the Amendment does not bar the evidence and comments because Salinas “did not expressly invoke the privilege against self-incrimination” when he fell silent during the questioning at the police station. Ante, at 1. But, in my view, that conclusion is inconsistent with this Court’s case law and its underlying practical rationale. A The Fifth Amendment prohibits prosecutors from com- menting on an individual’s silence where that silence amounts to an effort to avoid becoming “a witness against himself.” This Court has specified that “a rule of evidence” permitting “commen[t] by counsel” in a criminal case upon a defendant’s failure to testify “violates the Fifth Amendment.” n. 2, 613 (internal quotation marks omitted). See also United ; 433 (1970) (Black, J., dissenting). And, since “it is imper- missible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation,” the “prosecution may not use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” 468, n. 37 (1966) (emphasis added). Particularly in the context of police interrogation, a Cite as: 570 U. S. (2013) 3 BREYER, J., dissenting contrary rule would undermine the basic protection that the Fifth Amendment provides. Cf. (“The privilege usu- ally operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer”). To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossi- ble predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associ- ates, or suspicious circumstances—even if he is innocent. See, e.g., ; Kassin, Inside Interroga- tion: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissi- ble. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself ”—very much what the Fifth Amendment forbids. Cf. Pennsylva- (definition of “testimonial” includes responses to questions that require a suspect to communicate an express or implied assertion of fact or belief). And that is similarly so whether the questioned individual, as part of his decision to remain silent, invokes the Fifth Amendment explicitly or implic- itly, through words, through deeds, or through reference to surrounding circumstances. B It is consequently not surprising that this Court, more than half a century ago, explained that “no ritualistic formula is necessary in order to invoke the privilege.” 4 SALINAS v. TEXAS BREYER, J., dissenting Thus, a prosecutor may not comment on a defendant’s failure to testify at trial—even if neither the defendant nor anyone else ever mentions a Fifth Amendment right not to do so. Circumstances, not a defendant’s statement, tie the de- fendant’s silence to the right. Similarly, a prosecutor may not comment on the fact that a defendant in custody, after receiving warnings, “stood mute”—regardless of whether he “claimed his privilege” in so many words. Again, it is not any explicit statement but, instead, the defendant’s deeds (silence) and circumstances (receipt of the warnings) that tie together silence and constitutional right. Most lower courts have so construed the law, even where the defendant, having received warnings, answers some questions while remaining silent as to others. See, e.g., Hurd v. Terhune, ; United States v. May, ; United States v. Scott, ; United ; ; United But see, e.g., United States v. Harris, The cases in which this Court has insisted that a de- fendant expressly mention the Fifth Amendment by name in order to rely on its privilege to protect silence are cases where (1) the circumstances surrounding the silence (un- like the present case) did not give rise to an inference that the defendant intended, by his silence, to exercise his Fifth Amendment rights; and (2) the questioner greeted by the silence (again unlike the present case) had a special need to know whether the defendant sought to rely on the protections of the Fifth Amendment. See ante, at 4 (ex- plaining that, in such cases, the government needs to know the basis for refusing to answer “so that it may either argue that the testimony sought could not be self- Cite as: 570 U. S. (2013) 5 BREYER, J., dissenting incriminating or cure any potential self-incrimination through a grant of immunity” (citation omitted)). These cases include Roberts, Rogers, Sullivan, Vajtauer, and Jenkins—all of which at least do involve the protection of silence—and also include cases emphasized by the plural- ity that are not even about silence—namely, Murphy and In Roberts and Rogers, the individual refused to answer questions that government investigators (in Roberts) and a grand jury (in Rogers) asked, principally because the individual wanted to avoid incriminating other persons. ; 368–370, and n. 4 But the Fifth Amendment does not protect some- one from incriminating others; it protects against self- incrimination. In turn, neither the nature of the questions nor the circumstances of the refusal to answer them pro- vided any basis to infer a tie between the silence and the Fifth Amendment, while knowledge of any such tie would have proved critical to the questioner’s determination as to whether the defendant had any proper legal basis for claiming Fifth Amendment protection. In Sullivan, the defendant’s silence consisted of his failure to file a tax return—a return, he later claimed, that would have revealed his illegal activity as a bootlegger. United The circumstances did not give rise to an inference of a tie between his silence (in the form of failing to file a tax return) and the Fifth Amendment; and, if he really did want to rely on the Fifth Amendment, then the govern- ment would have had special need to know of any such tie in order to determine whether, for example, the assertion of privilege was valid and, perhaps, an offer of immunity was appropriate. In Vajtauer, an alien refused to answer questions asked by an immigration official at a deportation proceeding. 6 SALINAS v. TEXAS BREYER, J., dissenting United States ex rel. Here, the circumstances gave rise to a distinct inference that the alien was not invoking any Fifth Amendment privilege: The alien’s lawyer had stated quite publicly at the hearing that he advised his client to remain silent not on Fifth Amend- ment grounds; rather, the lawyer “ ‘advise[d] the alien not to answer any further questions until the evidence upon which the warrant is based will be presented here.’ ” at 106–107 (quoting the lawyer). This statement weak- ened or destroyed the possibility of a silence-Fifth Amendment linkage; the Government could not challenge his right to invoke the Fifth Amendment; and this Court described its later invocation as “evidently an after- thought.” at Perhaps most illustrative is Jenkins, a case upon which the plurality relies, ante, at 9, n. 3, and upon which the Texas Court of Criminal Appeals relied almost exclusively, Jenkins killed some- one, and was not arrested until he turned himself in two weeks later. On cross-examination at his trial, Jenkins claimed that his killing was in self-defense after being attacked. at –233. The prosecutor then asked why he did not report the alleged attack, and in closing argument sug- gested that Jenkins’ failure to do so cast doubt on his claim to have acted in self-defense. at 233–234. We explained that this unusual form of “prearrest silence” was not constitutionally protected from use at trial. at 240. Perhaps even more aptly, Justice Stevens’ concur- rence noted that “the privilege against compulsory self- incrimination is simply irrelevant” in such circumstances. How would anyone have known that Jenkins, while failing to report an attack, was relying on the Fifth Amendment? And how would the government have had any way of determining whether his Cite as: 570 U. S. (2013) 7 BREYER, J., dissenting claim was valid? In Jenkins, as in Roberts, Rogers, Sulli- van, and Vajtauer, no one had any reason to connect si- lence to the Fifth Amendment; and the government had no opportunity to contest any alleged connection. Still further afield from today’s case are Murphy and neither of which involved silence at all. Rather, in both cases, a defendant had earlier answered questions posed by the government—in Murphy, by speaking with a probation officer, and in by completing a tax return. 422–425 (1984); 649–650 (1976). At the time of providing answers, neither circum- stances nor deeds nor words suggested reliance on the Fifth Amendment: Murphy simply answered questions posed by his probation officer; simply filled out a tax return. They did not argue that their self- incriminating statements had been “compelled” in viola- tion of the Fifth Amendment until later, at trial. Murphy, ; The Court held that those statements were not compelled. Murphy, ; The circumstances indicated that the defendants had affirmatively chosen to speak and to write. Thus, we have two sets of cases: One where express invocation of the Fifth Amendment was not required to tie one’s silence to its protections, and another where some- thing like express invocation was required, because cir- cumstances demanded some explanation for the silence (or the statements) in order to indicate that the Fifth Amendment was at issue. There is also a third set of cases, cases that may well fit into the second category but where the Court has held that the Fifth Amendment both applies and does not require express invocation despite ambiguous circumstances. The Court in those cases has made clear that an individual, when silent, need not expressly invoke the Fifth Amend- 8 SALINAS v. TEXAS BREYER, J., dissenting ment if there are “inherently compelling pressures” not to do so. Thus, in Garrity v. New Jersey, the Court held that no explicit assertion of the Fifth Amendment was required where, in the course of an investigation, such assertion would, by law, have cost police officers their jobs. Similarly, this Court did not require explicit assertion in response to a grand jury subpoena where that assertion would have cost two architects their public contracts or a political official his job. 75–76 (1973); 802–804 (1977). In 28–29 the Court held that the Fifth Amendment did not require explicit assertion of the privilege against self- incrimination because, in the context of the Marihuana Tax Act, such assertion would have been inherently in- criminating. In we held the same where explicit assertion of the Fifth Amendment would have required, as a first step, the potentially incriminating admission of membership in the Communist Party. The Court has also held that gamblers, without explicitly invoking the Fifth Amendment, need not comply with tax requirements that would, inherently and directly, lead to self-incrimination. Marchetti v. United States, 390 U.S. 39, 60–61 (1968); 67–68 (1968). All told, this third category of cases receives the same treatment as the first: Circumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment. So, too, in today’s case. The plurality refers to one additional case, namely See ante, at 8. But that case is here beside the point. In Berghuis, the defendant was in custody, he had been informed of his rights, and he was subsequently silent in the face of 2 hours and 45 minutes of questioning before he Cite as: 570 U. S. (2013) 9 BREYER, J., dissenting offered any substantive answers. at – (slip op., at 2–4). The Court held that he had waived his Fifth Amendment rights in respect to his later speech. The Court said nothing at all about a prosecutor’s right to comment on his preceding silence and no prosecutor sought to do so. Indeed, how could a prosecutor lawfully have tried to do so, given this Court’s statement in Mi- randa itself that a prosecutor cannot comment on the fact that, after receiving warnings, the suspect “stood mute”? 384 U. S., We end where we began. “[N]o ritualistic formula is necessary in order to invoke the privilege.” 349 U. S., at Much depends on the circumstances of the particular case, the most important circumstances being: (1) whether one can fairly infer that the individual being questioned is invoking the Amendment’s protection; (2) if that is unclear, whether it is particularly important for the questioner to know whether the individual is doing so; and (3) even if it is, whether, in any event, there is a good reason for excusing the individual from referring to the Fifth Amendment, such as inherent penalization simply by answering. C Applying these principles to the present case, I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder. See –553. These circumstances give rise to a reasonable inference 10 SALINAS v. TEXAS BREYER, J., dissenting that Salinas’ silence derived from an exercise of his Fifth Amendment rights. This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpe- trator of a crime. See Dickerson v. United States, 530 U.S. 428, 443 (2000); Brogan v. United States, 522 U.S. 398, 405 (1998); The nature of the surroundings, the switch of topic, the particular question—all suggested that the right we have and generally know we have was at issue at the critical moment here. Salinas, not being represented by counsel, would not likely have used the precise words “Fifth Amendment” to invoke his rights because he would not likely have been aware of technical legal require- ments, such as a need to identify the Fifth Amendment by name. At the same time, the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose be- tween incrimination through speech and incrimination through silence. That need is also supported by the ab- sence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, or whether to grant immunity, see Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of the privilege.” at That being so, for rea- sons similar to those given in the Fifth Amend- ment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor. See –615. Cite as: 570 U. S. (2013) 11 BREYER, J., dissenting D I recognize that other cases may arise where facts and circumstances surrounding an individual’s silence present a closer question. The critical question—whether those circumstances give rise to a fair inference that the silence rests on the Fifth Amendment—will not always prove easy to administer. But that consideration does not support the plurality’s rule-based approach here, for the administra- tive problems accompanying the plurality’s approach are even worse. The plurality says that a suspect must “expressly invoke the privilege against self-incrimination.” Ante, at 1. But does it really mean that the suspect must use the exact words “Fifth Amendment”? How can an individual who is not a lawyer know that these particular words are legally magic? Nor does the Solicitor General help when he adds that the suspect may “mak[e] the claim ‘in any language that [the questioner] may reasonably be expected to un- derstand as an attempt to invoke the privilege.’ ” Brief for United States as Amicus Curiae 22 (quoting at 162–163; alteration in original). What counts as “mak- ing the claim”? Suppose the individual says, “Let’s discuss something else,” or “I’m not sure I want to answer that”; or suppose he just gets up and leaves the room. Cf. Davis v. Mississippi, (affirming “the settled principle that while the police have the right to request citizens to answer voluntarily questions concern- ing unsolved crimes[,] they have no right to compel them to answer”); (1984) (noting that even someone detained in a Terry stop “is not obliged to respond” to police questions); Florida v. Royer, –498 How is simple silence in the present context any different? The basic problem for the plurality is that an effort to have a simple, clear “explicit statement” rule poses a serious obstacle to those who, like Salinas, seek to assert 12 SALINAS v. TEXAS BREYER, J., dissenting their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail. At the same time, acknowledging that our case law does not require use of specific words, see ante, at 2, leaves the plurality without the administrative benefits it might hope to find in requiring that detail. Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege? The need for simplicity, the constitutional importance of applying the Fifth Amend- ment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today’s case is clearly: yes. For these reasons, I believe that the Fifth Amendment prohibits a prosecutor from commenting on Salinas’s silence. I respectfully dissent from the Court’s contrary conclusion

Justice Ginsburg

majority

EPA v. EME Homer City Generation, L. P.

2014-04-29

https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/

https://www.courtlistener.com/api/rest/v3/clusters/2672207/

2013-039

These cases concern the efforts of Congress and the Environmental Protection Agency (EPA or Agency) to cope with a complex problem: air pollution emitted in one State, but causing harm in other States. Left unregulated, the emitting or upwind State reaps the benefits of the economic activity causing the pollution without bearing all the costs. See Revesz, Federalism and Interstate Envi­ ronmental Externalities, 144 U. Pa. L. Rev. 2341, 2343 (1996). Conversely, downwind States to which the pollu­ tion travels are unable to achieve clean air because of the influx of out-of-state pollution they lack authority to con­ trol. See S. Rep. No. 101–228, p. 49 (1989). To tackle the 2 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court problem, Congress included a Good Neighbor Provision in the Clean Air Act (Act or CAA). That provision, in its current phrasing, instructs States to prohibit in-state sources “from emitting any air pollutant in amounts which will . . . contribute significantly” to downwind States’ “nonattainment . . . , or interfere with maintenance,” of any EPA-promulgated national air quality standard. 42 U.S. C. §7410(a)(2)(D)(i). Interpreting the Good Neighbor Provision, EPA adopted the Cross-State Air Pollution Rule (commonly and herein­ after called the Transport Rule). The rule calls for consid­ eration of costs, among other factors, when determining the emission reductions an upwind State must make to improve air quality in polluted downwind areas. The Court of Appeals for the D. C. Circuit vacated the rule in its entirety. It held, 2 to 1, that the Good Neighbor Provi­ sion requires EPA to consider only each upwind State’s physically proportionate responsibility for each downwind State’s air quality problem. That reading is demanded, according to the D. C. Circuit, so that no State will be required to decrease its emissions by more than its ratable share of downwind-state pollution. In Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we reversed a D. C. Circuit decision that failed to accord deference to EPA’s reasonable interpretation of an ambiguous Clean Air Act provision. Satisfied that the Good Neighbor Provision does not command the Court of Appeals’ cost-blind con­ struction, and that EPA reasonably interpreted the provi­ sion, we reverse the D. C. Circuit’s judgment. I A Air pollution is transient, heedless of state boundaries. Pollutants generated by upwind sources are often trans­ ported by air currents, sometimes over hundreds of miles, Cite as: 572 U. S. ____ (2014) 3 Opinion of the Court to downwind States. As the pollution travels out of state, upwind States are relieved of the associated costs. Those costs are borne instead by the downwind States, whose ability to achieve and maintain satisfactory air quality is hampered by the steady stream of infiltrating pollution. For several reasons, curtailing interstate air pollution poses a complex challenge for environmental regulators. First, identifying the upwind origin of downwind air pollu­ tion is no easy endeavor. Most upwind States propel pollutants to more than one downwind State, many downwind States receive pollution from multiple upwind States, and some States qualify as both upwind and downwind. See Brief for Federal Petitioners 6. The over­ lapping and interwoven linkages between upwind and downwind States with which EPA had to contend number in the thousands.1 Further complicating the problem, pollutants do not emerge from the smokestacks of an upwind State and uniformly migrate downwind. Some pollutants stay with­ in upwind States’ borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. “The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.” The Holy Bible, John 3:8 (King James Version). In craft­ ing a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind. Finally, upwind pollutants that find their way down­ wind are not left unaltered by the journey. Rather, as the gases emitted by upwind polluters are carried downwind, they are transformed, through various chemical processes, into altogether different pollutants. The offending gases —————— 1 For the rule challenged here, EPA evaluated 2,479 separate link­ ages between downwind and upwind States. Brief for Federal Petition­ ers 6. 4 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court at issue in these cases—nitrogen oxide (NOX) and sulfur dioxide (SO2)—often develop into ozone and fine particu­ late matter (PM2.5) by the time they reach the atmos­ pheres of downwind States. See 76 Fed. Reg. 48222– 48223 (2011). See also 69 Fed. Reg. 4575–4576 (2004) (describing the components of ozone and PM2.5). Down­ wind air quality must therefore be measured for ozone and PM2.5 concentrations. EPA’s chore is to quantify the amount of upwind gases (NOX and SO2) that must be reduced to enable downwind States to keep their levels of ozone and PM2.5 in check. B Over the past 50 years, Congress has addressed inter­ state air pollution several times and with increasing rigor. In 1963, Congress directed federal authorities to “encour­ age cooperative activities by the States and local govern­ ments for the prevention and control of air pollution.” 77 Stat. 393, 42 U.S. C. §1857a (1964 ed.). In 1970, Congress made this instruction more concrete, introducing features still key to the Act. For the first time, Congress directed EPA to establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health. See 84 Stat. 1679–1680, as amended, 42 U.S. C. §§7408, 7409 (2006 ed.). Once EPA settles on a NAAQS, the Act requires the Agency to designate “nonattainment” areas, i.e., locations where the concentration of a regulated pollutant exceeds the NAAQS. §7407(d). The Act then shifts the burden to States to propose plans adequate for compliance with the NAAQS. Each State must submit a State Implementation Plan, or SIP, to EPA within three years of any new or revised NAAQS. §7410(a)(1). If EPA determines that a State has failed to submit an adequate SIP, either in whole or in part, the Act requires the Agency to promulgate a Federal Implementa­ tion Plan, or FIP, within two years of EPA’s determina­ Cite as: 572 U. S. ____ (2014) 5 Opinion of the Court tion, “unless the State corrects the deficiency” before a FIP is issued. §7410(c)(1).2 The Act lists the matters a SIP must cover. Among SIP components, the 1970 version of the Act required SIPs to include “adequate provisions for intergovernmental coop­ eration” concerning interstate air pollution. §110(a)(2)(E), 84 Stat. 1681, 42 U.S. C. §1857c–5(a)(2)(E). This statutory requirement, with its text altered over time, has come to be called the Good Neighbor Provision. In 1977, Congress amended the Good Neighbor Provi­ sion to require more than “cooperation.” It directed States to submit SIPs that included provisions “adequate” to “prohibi[t] any stationary source within the State from emitting any air pollutant in amounts which will . . . prevent attainment or maintenance [of air quality stand­ ards] by any other State.” §108(a)(4), 91 Stat. 693, 42 U.S. C. §7410(a)(2)(E) (1976 ed., Supp. II). The amended provision thus explicitly instructed upwind States to reduce emissions to account for pollution exported beyond their borders. As then written, however, the provision regulated only individual sources that, considered alone, emitted enough pollution to cause nonattainment in a downwind State. Because it is often “impossible to say that any single source or group of sources is the one which actually prevents attainment” downwind, S. Rep. No. 101– 228, p. 21 (1989), the 1977 version of the Good Neighbor Provision proved ineffective, see ibid. (noting the provi­ sion’s inability to curb the collective “emissions [of] multi­ ple sources”). Congress most recently amended the Good Neighbor Provision in 1990. The statute, in its current form, re­ quires SIPs to “contain adequate provisions . . . prohibiting —————— 2 FIPs and SIPs were introduced in the 1970 version of the Act; the particular deadlines discussed here were added in 1990. See 104 Stat. 2409, 2422–2423, 42 U.S. C. §§7401(a)(1), 7410(c) (2006 ed.). 6 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court . . . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any . . . [NAAQS].” 42 U.S. C. §7410(a)(2)(D)(i) (2006 ed.). The controversy before us centers on EPA’s most recent attempt to construe this provision. C Three times over the past two decades, EPA has at­ tempted to delineate the Good Neighbor Provision’s scope by identifying when upwind States “contribute significantly” to nonattainment downwind. In 1998, EPA issued a rule known as the “NOX SIP Call.” That regulation lim­ ited NOX emissions in 23 upwind States to the extent such emissions contributed to nonattainment of ozone stand­ ards in downwind States. See 63 Fed. Reg. 57356, 57358. In Michigan v. EPA, 213 F.3d 663 (2000), the D. C. Cir­ cuit upheld the NOX SIP Call, specifically affirming EPA’s use of costs to determine when an upwind State’s contri­ bution was “significan[t]” within the meaning of the stat­ ute. Id., at 674–679. In 2005, EPA issued the Clean Air Interstate Rule, or CAIR. 70 Fed. Reg. 25162. CAIR regulated both NOX and SO2 emissions, insofar as such emissions contributed to downwind nonattainment of two NAAQS, both set in 1997, one concerning the permissible annual measure of PM2.5, and another capping the average ozone level gauged over an 8-hour period. See id., at 25171. The D. C. Circuit initially vacated CAIR as arbitrary and capricious. See North Carolina v. EPA, 531 F.3d 896, 921 (2008) (per curiam). On rehearing, the court decided to leave the rule in place, while encouraging EPA to act with dispatch in dealing with problems the court had identified. See North Carolina v. EPA, 550 F.3d 1176, 1178 (2008) (per curiam). The rule challenged here—the Transport Rule—is EPA’s Cite as: 572 U. S. ____ (2014) 7 Opinion of the Court response to the D. C. Circuit’s North Carolina decision. Finalized in August 2011, the Transport Rule curtails NOX and SO2 emissions of 27 upwind States to achieve down­ wind attainment of three different NAAQS: the two 1997 NAAQS previously addressed by CAIR, and the 2006 NAAQS for PM2.5 levels measured on a daily basis. See 76 Fed. Reg. 48208–48209. Under the Transport Rule, EPA employed a “two-step approach” to determine when upwind States “contribute[d] significantly to nonattainment,” id., at 48254, and there­ fore in “amounts” that had to be eliminated. At step one, called the “screening” analysis, the Agency excluded as de minimis any upwind State that contributed less than one percent of the three NAAQS3 to any downwind State “receptor,” a location at which EPA measures air quality. See id., at 48236–48237.4 If all of an upwind State’s con­ tributions fell below the one-percent threshold, that State would be considered not to have “contribute[d] signifi- cantly” to the nonattainment of any downwind State. Id., at 48236. States in that category were screened out and exempted from regulation under the rule. The remaining States were subjected to a second in­ quiry, which EPA called the “control” analysis. At this stage, the Agency sought to generate a cost-effective allo­ cation of emission reductions among those upwind States “screened in” at step one. The control analysis proceeded this way. EPA first calculated, for each upwind State, the quantity of emis­ sions the State could eliminate at each of several cost —————— 3 With respect to each NAAQS addressed by the rule, the one-percent threshold corresponded to levels of 0.15 micrograms per cubic meter (µg/m3) for annual PM2.5, 0.35 µg/m3 for daily PM2.5, and 0.8 parts per billion (ppb) for 8-hour ozone. See 76 Fed. Reg. 48236–48237. 4 If, for example, the NAAQS for ozone were 100 ppb, a contribution of less than 1 ppb to any downwind location would fall outside EPA’s criteria for significance. 8 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court thresholds. See id., at 48248–48249. Cost for these pur­ poses is measured as cost per ton of emissions prevented, for instance, by installing scrubbers on powerplant smoke­ stacks.5 EPA estimated, for example, the amount each upwind State’s NOX emissions would fall if all pollution sources within each State employed every control measure available at a cost of $500 per ton or less. See id., at 48249–48251. The Agency then repeated that analysis at ascending cost thresholds. See ibid.6 Armed with this information, EPA conducted complex modeling to establish the combined effect the upwind reductions projected at each cost threshold would have on air quality in downwind States. See id., at 48249. The Agency then identified “significant cost threshold[s],” points in its model where a “noticeable change occurred in downwind air quality, such as . . . where large upwind emission reductions become available because a certain type of emissions control strategy becomes cost-effective.” Ibid. For example, reductions of NOX sufficient to resolve or significantly curb downwind air quality problems could be achieved, EPA determined, at a cost threshold of $500 per ton (applied uniformly to all regulated upwind States). “Moving beyond the $500 cost threshold,” EPA concluded, “would result in only minimal additional . . . reductions [in emissions].” Id., at 48256.7 Finally, EPA translated the cost thresholds it had se­ —————— 5 Toillustrate, a technology priced at $5,000 and capable of eliminat­ ing two tons of pollution would be stated to “cost” $2,500 per ton. 6 For SO2, EPA modeled reductions that would be achieved at cost levels of $500, $1,600, $2,300, $2,800, $3,300, and $10,000 per ton eliminated. See id., at 48251–48253. 7 For SO2, EPA determined that, for one group of upwind States, all downwind air quality problems would be resolved at the $500 per ton threshold. See id., at 48257. For another group of States, however, this level of controls would not suffice. For those States, EPA found that pollution controls costing $2,300 per ton were necessary. See id., at 48259. Cite as: 572 U. S. ____ (2014) 9 Opinion of the Court lected into amounts of emissions upwind States would be required to eliminate. For each regulated upwind State, EPA created an annual emissions “budget.” These budg­ ets represented the quantity of pollution an upwind State would produce in a given year if its in-state sources im­ plemented all pollution controls available at the chosen cost thresholds. See id., at 48249.8 If EPA’s projected improvements to downwind air quality were to be realized, an upwind State’s emissions could not exceed the level this budget allocated to it, subject to certain adjustments not relevant here. Taken together, the screening and control inquiries defined EPA’s understanding of which upwind emissions were within the Good Neighbor Provision’s ambit. In short, under the Transport Rule, an upwind State “con­ tribute[d] significantly” to downwind nonattainment to the extent its exported pollution both (1) produced one percent or more of a NAAQS in at least one downwind State (step one) and (2) could be eliminated cost-effectively, as deter­ mined by EPA (step two). See id., at 48254. Upwind States would be obliged to eliminate all and only emis­ sions meeting both of these criteria.9 For each State regulated by the Transport Rule, EPA contemporaneously promulgated a FIP allocating that State’s emission budget among its in-state sources. See id., at 48271, 48284–48287.10 For each of these States, —————— 8 In 2014, for example, pollution sources within Texas would be per­ mitted to emit no more than 243,954 tons of SO2, subject to variations specified by EPA. See id., at 48269 (Table VI.F–1). 9 Similarly, upwind States EPA independently determined to be “in­ terfer[ing] with [the] maintenance” of NAAQS downwind were required to eliminate pollution only to the extent their emissions satisfied both of these criteria. See id., at 48254. 10 These FIPs specified the maximum amount of pollution each in­ state pollution source could emit. Sources below this ceiling could sell unused “allocations” to sources that could not reduce emissions to the necessary level as cheaply. See id., at 48271–48272. This type of “cap­ 10 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court EPA had determined that the State had failed to submit a SIP adequate for compliance with the Good Neighbor Provision. These determinations regarding SIPs became final after 60 days, see 42 U.S. C. §7607(b)(1)(2006 ed., Supp. V ), and many went unchallenged.11 EPA views the SIP determinations as having triggered its statutory obligation to promulgate a FIP within two years, see §7410(c), a view contested by respondents, see Part II, infra. D A group of state and local governments (State respond­ ents), joined by industry and labor groups (Industry re­ spondents), petitioned for review of the Transport Rule in the U. S. Court of Appeals for the D. C. Circuit. Over the dissent of Judge Rogers, the Court of Appeals vacated the rule in its entirety. See 696 F.3d 7, 37 (2012). EPA’s actions, the appeals court held, exceeded the Agency’s statutory authority in two respects. By promul­ gating FIPs before giving States a meaningful opportunity to adopt their own implementation plans, EPA had, in the court’s view, upset the CAA’s division of responsibility between the States and the Federal Government. In the main, the Court of Appeals acknowledged, EPA’s FIP authority is triggered at the moment the Agency disap­ proves a SIP. See id., at 30. Thus, when a State proposes —————— and-trade” system cuts costs while still reducing pollution to target levels. 11 Three States did challenge EPA’s determinations. See Petition for Review in Ohio v. EPA, No. 11–3988 (CA6); Petition for Review in Kansas v. EPA, No. 12–1019 (CADC); Notice in Georgia v. EPA, No. 11– 1427 (CADC). Those challenges were not consolidated with this pro­ ceeding, and they remain pending (held in abeyance for these cases) in the Sixth and D. C. Circuits. See Twelfth Joint Status Report in Ohio v. EPA, No. 11–3988 (CA6); Order in Kansas v. EPA, No. 11–1333 (CADC, May 10, 2013); Order in Georgia v. EPA, No. 11–1427 (CADC, May 10, 2013). Cite as: 572 U. S. ____ (2014) 11 Opinion of the Court a SIP inadequate to achieve a NAAQS, EPA could promul­ gate a FIP immediately after disapproving that SIP. See id., at 32. But the Court of Appeals ruled that a different regime applies to a State’s failure to meet its obligations under the Good Neighbor Provision. While a NAAQS was a “clear numerical target,” a State’s good neighbor obligation remained “nebulous and unknown,” the court observed, until EPA calculated the State’s emission budget. Ibid. Without these budgets, the Court of Appeals said, upwind States would be compelled to take a “stab in the dark” at calculating their own significant contribution to interstate air pollution. Id., at 35. The D. C. Circuit read the Act to avoid putting States in this position: EPA had an implicit statutory duty, the court held, to give upwind States a reasonable opportunity to allocate their emission budgets among in-state sources before the Agency’s authority to issue FIPs could be triggered. Id., at 37. The D. C. Circuit also held that the Agency’s two-part interpretation of the Good Neighbor Provision ignored three “red lines . . . cabin[ing the] EPA’s authority.” Id., at 19. First, the D. C. Circuit interpreted the Good Neighbor Provision to require upwind States to reduce emissions in “a manner proportional to their contributio[n]” to pollution in downwind States. Id., at 21. The Transport Rule, however, treated all regulated upwind States alike, re­ gardless of their relative contribution to the overall prob­ lem. See id., at 23. It required all upwind States “screened in” at step one to reduce emissions in accord with the uniform cost thresholds set during the step two control analysis. Imposing these uniform cost thresholds, the Court of Appeals observed, could force some upwind States to reduce emissions by more than their “fair share.” Id., at 27. According to the Court of Appeals, EPA had also failed to ensure that the Transport Rule did not mandate up­ 12 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court wind States to reduce pollution unnecessarily. The Good Neighbor Provision, the D. C. Circuit noted, “targets [only] those emissions from upwind States that ‘contribute sig­ nificantly to nonattainment’ ” of a NAAQS in downwind States. Id., at 22. Pollution reduction beyond that goal was “unnecessary over-control,” outside the purview of the Agency’s statutory mandate. Ibid. Because the emission budgets were calculated by reference to cost alone, the court concluded that EPA had done nothing to guard against, or even measure, the “over-control” potentially imposed by the Transport Rule. See ibid. Finally, by deciding, at the screening analysis, that upwind contributions below the one-percent threshold were insignificant, EPA had established a “floor” on the Agency’s authority to act. See id., at 20, and n. 13. Again pointing to the rule’s reliance on costs, the Court of Ap­ peals held that EPA had failed to ensure that upwind States were not being forced to reduce emissions below the one-percent threshold. See ibid. In dissent, Judge Rogers criticized the majority for deciding two questions that were not, in her view, properly before the court. See id., at 40–46, 51–58. First, she addressed the majority’s insistence that FIPs abide a State’s opportunity to allocate its emission budget among in-state sources. She regarded the respondents’ plea to that effect as an untimely attack on EPA’s previous SIP disapprovals. See id., at 40–46. Second, in Judge Rogers’ assessment, the respondents had failed to raise their substantive objections to the Transport Rule with the specificity necessary to preserve them for review. See id., at 51–58. On the merits, Judge Rogers found nothing in the Act to require, or even suggest, that EPA must quan- tify a State’s good neighbor obligations before it promul­ gated a FIP. See id., at 46–51. She also disagreed with the court’s conclusion that the Transport Rule unreasona­ bly interpreted the Act. See id., at 58–60. Cite as: 572 U. S. ____ (2014) 13 Opinion of the Court We granted certiorari to decide whether the D. C. Cir­ cuit had accurately construed the limits the CAA places on EPA’s authority. See 570 U. S. ___ (2013). II A Once EPA has calculated emission budgets, the D. C. Circuit held, the Agency must give upwind States the opportunity to propose SIPs allocating those budgets among in-state sources before issuing a FIP. 696 F.3d, at 37. As the State respondents put it, a FIP allocating a State’s emission budget “must issue after EPA has quanti­ fied the States’ good-neighbor obligations [in an emission budget] and given the States a reasonable opportunity to meet those obligations in SIPs.” Brief for State Respond­ ents 20. Before reaching the merits of this argument, we first reject EPA’s threshold objection that the claim is untimely. According to the Agency, this argument—and the D. C. Circuit’s opinion accepting it—rank as improper collateral attacks on EPA’s prior SIP disapprovals. As earlier re­ counted, see supra, at 9–10, EPA, by the time it issued the Transport Rule, had determined that each regulated upwind State had failed to submit a SIP adequate to satisfy the Good Neighbor Provision. Many of those de­ terminations, because unchallenged, became final after 60 days, see 42 U.S. C. §7607(b)(1), and did so before the petitions here at issue were filed. EPA argues that the Court cannot question exercise of the Agency’s FIP author­ ity without subjecting these final SIP disapprovals to untimely review. We disagree. The gravamen of the State respondents’ challenge is not that EPA’s disapproval of any particular SIP was erroneous. Rather, respondents urge that, not­ withstanding these disapprovals, the Agency was obliged to grant an upwind State a second opportunity to promul­ 14 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court gate adequate SIPs once EPA set the State’s emission budget. This claim does not depend on the validity of the prior SIP disapprovals. Even assuming the legitimacy of those disapprovals, the question remains whether EPA was required to do more than disapprove a SIP, as the State respondents urge, to trigger the Agency’s statutory authority to issue a FIP.12 B Turning to the merits, we hold that the text of the stat­ ute supports EPA’s position. As earlier noted, see supra, at 4–5, the CAA sets a series of precise deadlines to which the States and EPA must adhere. Once EPA issues any new or revised NAAQS, a State has three years to adopt a SIP adequate for compliance with the Act’s requirements. See 42 U.S. C. §7410(a)(1). Among those requirements is the Act’s mandate that SIPs “shall” include provisions sufficient to satisfy the Good Neighbor Provision. §7410(a)(2). If EPA determines a SIP to be inadequate, the Agency’s mandate to replace it with a FIP is no less absolute: “[EPA] shall promulgate a [FIP] at any time within 2 years after the [Agency] “(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum [relevant] criteria . . . , or —————— 12 The State respondents make a second argument we do not reach. They urge that EPA could not impose FIPs on several upwind States whose SIPs had been previously approved by the Agency under CAIR. EPA changed those approvals to disapprovals when it issued the Transport Rule, see 76 Fed. Reg. 48220, and the States assert that the process by which EPA did so was improper. That argument was not passed on by the D. C. Circuit, see 696 F.3d 7, 31, n. 29 (2012), and we leave it for the Court of Appeals to consider in the first instance on remand. Cite as: 572 U. S. ____ (2014) 15 Opinion of the Court “(B) disapproves a [SIP] in whole or in part, “unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before the [Agency] promulgates such [FIP].” §7410(c)(1). In other words, once EPA has found a SIP inadequate, the Agency has a statutory duty to issue a FIP “at any time” within two years (unless the State first “corrects the defi­ ciency,” which no one contends occurred here). The D. C. Circuit, however, found an unwritten excep­ tion to this strict time prescription for SIPs aimed at implementing the Good Neighbor Provision. Expecting any one State to develop a “comprehensive solution” to the “collective problem” of interstate air pollution without first receiving EPA’s guidance was, in the Court of Appeals’ assessment, “set[ting] the States up to fail.” 696 F.3d, at 36–37. The D. C. Circuit therefore required EPA, after promulgating each State’s emission budget, to give the State a “reasonable” period of time to propose SIPs im­ plementing its budget. See id., at 37. However sensible (or not) the Court of Appeals’ posi­ tion,13 a reviewing court’s “task is to apply the text [of the statute], not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U.S. 120, 126 (1989). Nothing in the Act dif­ —————— 13 On this point, the dissent argues that it is “beyond responsible debate that the States cannot possibly design FIP-proof SIPs without knowing the EPA-prescribed targets at which they must aim.” Post, at 18. Many of the State respondents thought otherwise, however, when litigating the matter in Michigan v. EPA, 213 F.3d 663 (CADC 2000). See Final Brief for Petitioning States in No. 98–1497 (CADC), p. 34 (“EPA has the responsibility to establish NAAQS,” but without further intervention by EPA, “States [have] the duty and right to develop . . . SIPs . . . to meet those NAAQS.”). See also id., at 37 (“EPA’s role is to determine whether the SIP submitted is ‘adequate’ . . . not to dictate contents of the submittal in the first instance. . . . [E]ach State has the right and the obligation to write a SIP that complies with §[74]10(a)(2), including the ‘good neighbor’ provision.”). 16 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court ferentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Rather, the statute speaks without reservation: Once a NAAQS has been issued, a State “shall” propose a SIP within three years, §7410(a)(1), and that SIP “shall” include, among other components, provisions adequate to satisfy the Good Neighbor Provision, §7410(a)(2). Nor does the Act condition the duty to promulgate a FIP on EPA’s having first quantified an upwind State’s good neighbor obligations. As Judge Rogers observed in her dissent from the D. C. Circuit’s decision, the Act does not require EPA to furnish upwind States with information of any kind about their good neighbor obligations before a FIP issues. See 696 F.3d, at 47. Instead, a SIP’s failure to satisfy the Good Neighbor Provision, without more, triggers EPA’s obligation to issue a federal plan within two years. §7410(c). After EPA has disapproved a SIP, the Agency can wait up to two years to issue a FIP, during which time the State can “correc[t] the deficiency” on its own. Ibid. But EPA is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP “at any time” within the two-year limit. Ibid. Carving out an exception to the Act’s precise deadlines, as the D. C. Circuit did, “rewrites a decades-old statute whose plain text and structure estab­ lish a clear chronology of federal and State responsibili­ ties.” 696 F.3d, at 47 (Rogers, J., dissenting). The practical difficulties cited by the Court of Appeals do not justify departure from the Act’s plain text. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461–462 (2002) (We “must presume that a legislature says in a statute what it means and means in a statute what it says there.” (internal quotation marks omitted)). When Con­ gress elected to make EPA’s input a prerequisite to state action under the Act, it did so expressly. States develop­ ing vehicle inspection and maintenance programs under Cite as: 572 U. S. ____ (2014) 17 Opinion of the Court the CAA, for example, must await EPA guidance before issuing SIPs. 42 U.S. C. §7511a(c)(3)(B). A State’s obli­ gation to adopt a SIP, moreover, arises only after EPA has first set the NAAQS the State must meet. §7410(a)(1). Had Congress intended similarly to defer States’ discharge of their obligations under the Good Neighbor Provision, Congress, we take it, would have included a similar direc­ tion in that section. See Jama v. Immigration and Cus- toms Enforcement, 543 U.S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”). In short, nothing in the statute places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations. By altering the schedule Congress provided for SIPs and FIPs, the D. C. Circuit stretched out the process. It al­ lowed a delay Congress did not order and placed an infor­ mation submission obligation on EPA Congress did not impose. The D. C. Circuit, we hold, had no warrant thus to revise the CAA’s action-ordering prescriptions. C At oral argument, the State respondents emphasized EPA’s previous decisions, in the NOX SIP Call and CAIR, to quantify the emission reductions required of upwind States before the window to propose a SIP closed. See Tr. of Oral Arg. 37–39, 42–43, 45–46. In their view, by failing to accord States a similar grace period after issuing States’ emission budgets, EPA acted arbitrarily. See ibid. Whatever pattern the Agency followed in its NOX SIP call and CAIR proceedings, EPA retained discretion to alter its course provided it gave a reasonable explanation for doing so. Motor Vehicle Mfrs. Assn. of United States, 18 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 42 (1983). The Agency presented such an explanation in the Transport Rule. As noted, see supra, at 6, the D. C. Circuit’s North Carolina decision admonished EPA to act with dispatch in amending or replacing CAIR, the Transport Rule’s predecessor. See 550 F.3d, at 1178 (warning EPA that the stay of the court’s decision to va­ cate CAIR would not persist “indefinite[ly]”). Given North Carolina’s stress on expeditious action to cure the infir- mities the court identified in CAIR, EPA thought it “[in]appropriate to establish [the] lengthy transition period” entailed in allowing States time to propose new or amended SIPs implementing the Transport Rule emission budgets. See 76 Fed. Reg. 48220 (citing North Carolina, 550 F.3d 1176). Endeavoring to satisfy the D. C. Circuit’s directive, EPA acted speedily, issuing FIPs contemporane­ ously with the Transport Rule. In light of the firm dead­ lines imposed by the Act, which we hold the D. C. Circuit lacked authority to alter, we cannot condemn EPA’s deci­ sion as arbitrary or capricious.14 III A The D. C. Circuit also held that the Transport Rule’s two-step interpretation of the Good Neighbor Provision conflicts with the Act. Before addressing this holding, we take up a jurisdictional objection raised by EPA. The CAA directs that “[o]nly an objection to a rule . . . —————— 14 Inlight of the CAA’s “core principle” of cooperative federalism, the dissent believes EPA abused its discretion by failing to give States an additional opportunity to submit SIPs in satisfaction of the Good Neighbor Provision. Post, at 19. But nothing in the statute so restricts EPA. To the contrary, as earlier observed, see supra, at 16, the plain text of the CAA grants EPA plenary authority to issue a FIP “at any time” within the two-year period that begins the moment EPA deter­ mines a SIP to be inadequate. §7410(c)(1) (emphasis added). Cite as: 572 U. S. ____ (2014) 19 Opinion of the Court raised with reasonable specificity during the period for public comment . . . may be raised during judicial review.” 42 U.S. C. §7607(d)(7)(B). Respondents failed to state their objections to the Transport Rule during the comment period with the “specificity” required for preservation, EPA argues. See Brief for Federal Petitioners 34–42. This failure at the administrative level, EPA urges, fore­ closes judicial review. Id., at 34. Assuming, without deciding, that respondents did not meet the Act’s “reasonable specificity” requirement during the comment period, we do not regard that lapse as “juris­ dictional.” This Court has cautioned against “profligate use” of the label “jurisdictional.” Sebelius v. Auburn Re- gional Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 6). A rule may be “mandatory,” yet not “jurisdictional,” we have explained. See Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006). Section 7607(d)(7)(B), we hold, is of that character. It does not speak to a court’s authority, but only to a party’s procedural obligations. See Kontrick v. Ryan, 540 U.S. 443, 455 (2004). Had EPA pursued the “reasonable specificity” argument vigorously before the D. C. Circuit, we would be obligated to address the merits of the argument. See Gonzalez v. Thaler, 565 U. S. ___, ___ (2012) (slip op., at 10). But EPA did not press the argument unequivocally. Before the D. C. Circuit, it indi­ cated only that the “reasonable specificity” prescription might bar judicial review. Brief for Respondent EPA et al. in No. 11–1302 (CADC), p. 30. See also id., at 32. We therefore do not count the prescription an impassable hindrance to our adjudication of the respondents’ attack on EPA’s interpretation of the Transport Rule. We turn to that attack mindful of the importance of the issues re­ spondents raise to the ongoing implementation of the Good Neighbor Provision. 20 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court B We routinely accord dispositive effect to an agency’s reasonable interpretation of ambiguous statutory lan­ guage. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is the pathmarking decision, and it bears a notable resemblance to the cases before us. Chevron concerned EPA’s definition of the term “source,” as used in the 1977 Amendments to the CAA. Id., at 840, n. 1. Those amendments placed additional restrictions on companies’ liberty to add new pollution “sources” to their factories. See id., at 840. Although “source” might have been interpreted to refer to an indi­ vidual smokestack, EPA construed the term to refer to an entire plant, thereby “treat[ing] all of the pollution­ emitting devices within the [plant] as though they were encased within a single ‘bubble.’” Ibid. Under the Agency’s interpretation, a new pollution-emitting device would not subject a plant to the additional restrictions if the “altera­ tion [did] not increase the total emissions [produced by] the plant.” Ibid. This Court held EPA’s interpretation of “source” a rea­ sonable construction of an ambiguous statutory term. When “Congress has not directly addressed the precise [interpretative] question at issue,” we cautioned, a review­ ing court cannot “simply impose its own construction o[f] the statute.” Id., at 843. Rather, the agency is charged with filling the “gap left open” by the ambiguity. Id., at 866. Because “ ‘a full understanding of the force of the statutory policy . . . depend[s] upon more than ordinary knowledge’ ” of the situation, the administering agency’s construction is to be accorded “controlling weight unless . . . arbitrary, capricious, or manifestly contrary to the statute.” Id., at 844 (quoting United States v. Shimer, 367 U.S. 374, 382 (1961)). Determining that none of those terms fit EPA’s interpretation of “source,” the Court de­ ferred to the Agency’s judgment. Cite as: 572 U. S. ____ (2014) 21 Opinion of the Court We conclude that the Good Neighbor Provision delegates authority to EPA at least as certainly as the CAA provi­ sions involved in Chevron. The statute requires States to eliminate those “amounts” of pollution that “contribute significantly to nonattainment” in downwind States. 42 U.S. C. §7410(a)(2)(D)(i) (emphasis added). Thus, EPA’s task15 is to reduce upwind pollution, but only in “amounts” that push a downwind State’s pollution concentrations above the relevant NAAQS. As noted earlier, however, the nonattainment of downwind States results from the collec­ tive and interwoven contributions of multiple upwind States. See supra, at 3. The statute therefore calls upon the Agency to address a thorny causation problem: How should EPA allocate among multiple contributing up- wind States responsibility for a downwind State’s excess pollution? A simplified example illustrates the puzzle EPA faced. Suppose the Agency sets a NAAQS, with respect to a particular pollutant, at 100 parts per billion (ppb), and that the level of the pollutant in the atmosphere of down­ wind State A is 130 ppb. Suppose further that EPA has determined that each of three upwind States—X, Y, and Z—contributes the equivalent of 30 ppb of the relevant pollutant to State A’s airspace. The Good Neighbor Provi­ sion, as just observed, prohibits only upwind emissions that contribute significantly to downwind nonattainment. EPA’s authority under the provision is therefore limited to eliminating a total of 30 ppb,16 i.e., the overage caused by —————— 15 Though we speak here of “EPA’s task,” the Good Neighbor Provi­ sion is initially directed to upwind States. As earlier explained, see Part II–B, supra, only after a State has failed to propose a SIP ade­ quate for compliance with the provision is EPA called upon to act. 16 Because of the uncertainties inherent in measuring interstate air pollution, see supra, at 3–4, reductions of exactly 30 ppb likely are unattainable. See infra, at 30–31. 22 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court the collective contribution of States X, Y, and Z.17 How is EPA to divide responsibility among the three States? Should the Agency allocate reductions propor­ tionally (10 ppb each), on a per capita basis, on the basis of the cost of abatement, or by some other metric? See Brief for Federal Petitioners 50 (noting EPA’s consideration of different approaches). The Good Neighbor Provision does not answer that question for EPA. Cf. Chevron, 467 U.S., at 860 (“[T]he language of [the CAA] simply does not compel any given interpretation of the term ‘source.’ ”). Under Chevron, we read Congress’ silence as a delegation of authority to EPA to select from among reasonable op­ tions. See United States v. Mead Corp., 533 U.S. 218, 229 (2001).18 Yet the Court of Appeals believed that the Act speaks clearly, requiring EPA to allocate responsibility for reduc­ ing emissions in “a manner proportional to” each State’s “contributio[n]” to the problem. 696 F.3d, at 21. Nothing —————— 17 For simplicity’s sake, the hypothetical assumes that EPA has not required any emission reductions by the downwind State itself. 18 The statutory gap identified also exists in the Good Neighbor Provi­ sion’s second instruction. That instruction requires EPA to eliminate amounts of upwind pollution that “interfere with maintenance” of a NAAQS by a downwind State. §7410(a)(2)(D)(i). This mandate con­ tains no qualifier analogous to “significantly,” and yet it entails a delegation of administrative authority of the same character as the one discussed above. Just as EPA is constrained, under the first part of the Good Neighbor Provision, to eliminate only those amounts that “con­ tribute . . . to nonattainment,” EPA is limited, by the second part of the provision, to reduce only by “amounts” that “interfere with mainte- nance,” i.e., by just enough to permit an already-attaining State to maintain satisfactory air quality. (Emphasis added.) With multiple upwind States contributing to the maintenance problem, however, EPA confronts the same challenge that the “contribute significantly” man­ date creates: How should EPA allocate reductions among multiple upwind States, many of which contribute in amounts sufficient to impede downwind maintenance? Nothing in either clause of the Good Neighbor Provision provides the criteria by which EPA is meant to apportion responsibility. Cite as: 572 U. S. ____ (2014) 23 Opinion of the Court in the text of the Good Neighbor Provision propels EPA down this path. Understandably so, for as EPA notes, the D. C. Circuit’s proportionality approach could scarcely be satisfied in practice. See App. in No. 11–1302 etc. (CADC), p. 2312 (“[W]hile it is possible to determine an emission reduction percentage if there is a single down­ wind [receptor], most upwind states contribute to multiple downwind [receptors] (in multiple states) and would have a different reduction percentage for each one.”). To illustrate, consider a variation on the example set out above. Imagine that States X and Y now contribute air pollution to State A in a ratio of one to five, i.e., State Y contributes five times the amount of pollution to State A than does State X. If State A were the only downwind State to which the two upwind States contributed, the D. C. Circuit’s proportionality requirement would be easy to meet: EPA could require State Y to reduce its emissions by five times the amount demanded of State X. The realities of interstate air pollution, however, are not so simple. Most upwind States contribute pollution to multiple downwind States in varying amounts. See 76 Fed. Reg. 48239–48246. See also Brief for Respondent Calpine Corp. et al. in Support of Petitioners 48–49 (offer­ ing examples). Suppose then that States X and Y also contribute pollutants to a second downwind State (State B), this time in a ratio of seven to one. Though State Y contributed a relatively larger share of pollution to State A, with respect to State B, State X is the greater offender. Following the proportionality approach with respect to State B would demand that State X reduce its emissions by seven times as much as State Y. Recall, however, that State Y, as just hypothesized, had to effect five times as large a reduction with respect to State A. The Court of Appeals’ proportionality edict with respect to both State A and State B appears to work neither mathematically nor in practical application. Proportionality as to one down­ 24 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court wind State will not achieve proportionality as to others. Quite the opposite. And where, as is generally true, up­ wind States contribute pollution to more than two down­ wind receptors, proportionality becomes all the more elusive. Neither the D. C. Circuit nor respondents face up to this problem. The dissent, for its part, strains to give meaning to the D. C. Circuit’s proportionality constraint as applied to a world in which multiple upwind States contribute emissions to multiple downwind locations. In the dissent’s view, upwind States must eliminate emissions by “what­ ever minimum amount reduces” their share of the overage in each and every one of the downwind States to which they are linked. See post, at 8. In practical terms, this means each upwind State will be required to reduce emis­ sions by the amount necessary to eliminate that State’s largest downwind contribution. The dissent’s formulation, however, does not account for the combined and cumu- lative effect of each upwind State’s reductions on attain­ ment in multiple downwind locations. See ibid. (“Under a proportional-reduction approach, State X would be required to eliminate emissions of that pollutant by whatever min­ imum amount reduces both State A’s level by 0.2 unit and State B’s by 0.7 unit.” (emphasis added)). The result would be costly overregulation unnecessary to, indeed in conflict with, the Good Neighbor Provision’s goal of attainment.19 —————— 19 To see why, one need only slightly complicate the world envisioned by the dissent. Assume the world is made up of only four States—two upwind (States X and Y), and two downwind (States A and B). Suppose also, as the dissent allows, see post, at 9, that the reductions State X must make to eliminate its share of the amount by which State A is in nonattainment are more than necessary for State X to eliminate its share of State B’s nonattainment. As later explained, see infra, at 29– 30, this kind of “over-control,” we agree with the dissent, is acceptable under the statute. Suppose, however, that State Y also contributes to pollution in both State A and State B such that the reductions it must Cite as: 572 U. S. ____ (2014) 25 Opinion of the Court In response, the dissent asserts that EPA will “simply be required to make allowance for” the overregulation caused by its “proportional-reduction” approach. Post, at 11. What criterion should EPA employ to determine which States will have to make those “allowance[s]” and by how much? The dissent admits there are “multiple ways” EPA might answer those questions. Ibid. But proportionality cannot be one of those ways, for the proportional-reduction approach is what led to the over­ regulation in the first place. And if a nonproportional approach can play a role in setting the final allocation of reduction obligations, then it is hardly apparent why EPA, free to depart from proportionality at the back end, cannot do so at the outset. Persuaded that the Good Neighbor Provision does not dictate the particular allocation of emissions among con­ tributing States advanced by the D. C. Circuit, we must next decide whether the allocation method chosen by EPA is a “permissible construction of the statute.” Chevron, 467 U.S., at 843. As EPA interprets the statute, upwind emissions rank as “amounts [that] . . . contribute signifi­ cantly to nonattainment” if they (1) constitute one percent —————— make to eliminate its proportion of State B’s overage exceed the reduc­ tions it must make to bring State A into attainment. In this case, the dissent would have State X reduce by just enough to eliminate its share of State A’s nonattainment and more than enough to eliminate its share of State B’s overage. The converse will be true as to State Y: Under the dissent’s approach, State Y would have to reduce by the “minimum” necessary to eliminate its proportional share of State B’s nonattainment and more than enough to eliminate its proportion of State A’s overage. The result is that the total amount by which both States X and Y are required to reduce will exceed what is necessary for attainment in all downwind States involved (i.e., in both State A and State B). Over-control thus unnecessary to achieving attainment in all involved States is impermissible under the Good Neighbor Provision. See infra, at 30, n. 23. The problem would worsen were the hypothet­ ical altered to include more than two downwind States and two upwind States, the very real circumstances EPA must address. 26 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court or more of a relevant NAAQS in a nonattaining downwind State and (2) can be eliminated under the cost threshold set by the Agency. See 76 Fed. Reg. 48254. In other words, to identify which emissions were to be eliminated, EPA considered both the magnitude of upwind States’ contributions and the cost associated with eliminating them. The Industry respondents argue that, however EPA ultimately divides responsibility among upwind States, the final calculation cannot rely on costs. The Good Neighbor Provision, respondents and the dissent empha­ size, “requires each State to prohibit only those ‘amounts’ of air pollution emitted within the State that ‘contribute significantly’ to another State’s nonattaintment.” Brief for Industry Respondents 23 (emphasis added). See also post, at 6. The cost of preventing emissions, they urge, is wholly unrelated to the actual “amoun[t]” of air pollution an upwind State contributes. Brief for Industry Respond­ ents 23. Because the Transport Rule considers costs, respondents argue, “States that contribute identical ‘amounts’ . . . may be deemed [by EPA] to have [made] substantially different” contributions. Id., at 30. But, as just explained, see supra, at 21–22, the Agency cannot avoid the task of choosing which among equal “amounts” to eliminate. The Agency has chosen, sensibly in our view, to reduce the amount easier, i.e., less costly, to eradicate, and nothing in the text of the Good Neighbor Provision precludes that choice. Using costs in the Transport Rule calculus, we agree with EPA, also makes good sense. Eliminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address. Effi­ cient because EPA can achieve the levels of attainment, i.e., of emission reductions, the proportional approach aims to achieve, but at a much lower overall cost. Equita­ Cite as: 572 U. S. ____ (2014) 27 Opinion of the Court ble because, by imposing uniform cost thresholds on regu­ lated States, EPA’s rule subjects to stricter regulation those States that have done relatively less in the past to control their pollution. Upwind States that have not yet implemented pollution controls of the same stringency as their neighbors will be stopped from free riding on their neighbors’ efforts to reduce pollution. They will have to bring down their emissions by installing devices of the kind in which neighboring States have already invested. Suppose, for example, that the industries of upwind State A have expended considerable resources installing modern pollution-control devices on their plants. Facto­ ries in upwind State B, by contrast, continue to run old, dirty plants. Yet, perhaps because State A is more popu­ lous and therefore generates a larger sum of pollution overall, the two States’ emissions have equal effects on downwind attainment. If State A and State B are re­ quired to eliminate emissions proportionally (i.e., equally), sources in State A will be compelled to spend far more per ton of reductions because they have already utilized lower cost pollution controls. State A’s sources will also have to achieve greater reductions than would have been required had they not made the cost-effective reductions in the first place. State A, in other words, will be tolled for having done more to reduce pollution in the past.20 EPA’s cost­ based allocation avoids these anomalies. Obligated to require the elimination of only those “amounts” of pollutants that contribute to the nonattain­ ment of NAAQS in downwind States, EPA must decide how to differentiate among the otherwise like contribu­ tions of multiple upwind States. EPA found decisive the —————— 20 The dissent’s approach is similarly infirm. It, too, would toll those upwind States that have already invested heavily in means to reduce the pollution their industries cause, while lightening the burden on States that have done relatively less to control pollution emanating from local enterprises. 28 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court difficulty of eliminating each “amount,” i.e., the cost in­ curred in doing so. Lacking a dispositive statutory in­ struction to guide it, EPA’s decision, we conclude, is a “reasonable” way of filling the “gap left open by Congress.” Chevron, 467 U.S., at 866.21 C The D. C. Circuit stated two further objections to EPA’s cost-based method of defining an upwind State’s contribu­ tion. Once a State was screened in at step one of EPA’s analysis, its emission budget was calculated solely with reference to the uniform cost thresholds the Agency selected at step two. The Transport Rule thus left open the possibility that a State might be compelled to reduce emissions beyond the point at which every affected down­ wind State is in attainment, a phenomenon the Court of Appeals termed “over-control.” 696 F.3d, at 22; see supra, at 12. Second, EPA’s focus on costs did not foreclose, as the D. C. Circuit accurately observed, the possibility that an upwind State would be required to reduce its emissions by so much that the State no longer contributed one per­ —————— 21 The dissent, see post, at 12–13, relies heavily on our decision in Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001). In Whitman, we held that the relevant text of the CAA “unambiguously bars” EPA from considering costs when determining a NAAQS. Id., at 471. Section 7409(b)(1) commands EPA to set NAAQS at levels “requi­ site to protect the public health” with “an adequate margin of safety.” This mandate, we observed in Whitman, was “absolute,” and precluded any other consideration (e.g., cost) in the NAAQS calculation. Id., at 465 (internal quotation marks omitted). Not so of the Good Neighbor Provision, which grants EPA discretion to eliminate “amounts [of pollution that] . . . contribute significantly to nonattainment” down­ wind. On the particular “amounts” that should qualify for elimination, the statute is silent. Unlike the provision at issue in Whitman, which provides express criteria by which EPA is to set NAAQS, the Good Neighbor Provision, as earlier explained, fails to provide any metric by which EPA can differentiate among the contributions of multiple upwind States. See supra, at 21–22. Cite as: 572 U. S. ____ (2014) 29 Opinion of the Court cent or more of a relevant NAAQS to any downwind State. This would place the State below the mark EPA had set, during the screening phase, as the initial threshold of “significan[ce].” See id., at 20, and n. 13. We agree with the Court of Appeals to this extent: EPA cannot require a State to reduce its output of pollution by more than is necessary to achieve attainment in every downwind State or at odds with the one-percent threshold the Agency has set. If EPA requires an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked, the Agency will have overstepped its authority, under the Good Neighbor Provision, to eliminate those “amounts [that] contribute . . . to nonattainment.” Nor can EPA demand reductions that would drive an upwind State’s contribution to every downwind State to which it is linked below one percent of the relevant NAAQS. Doing so would be counter to step one of the Agency’s interpreta­ tion of the Good Neighbor Provision. See 76 Fed. Reg. 48236 (“[S]tates whose contributions are below th[e] thresholds do not significantly contribute to nonattain­ ment . . . of the relevant NAAQS.”). Neither possibility, however, justifies wholesale invali­ dation of the Transport Rule. First, instances of “over­ control” in particular downwind locations, the D. C. Cir­ cuit acknowledged, see 696 F.3d, at 22, may be incidental to reductions necessary to ensure attainment elsewhere. Because individual upwind States often “contribute signif­ icantly” to nonattainment in multiple downwind locations, the emissions reduction required to bring one linked downwind State into attainment may well be large enough to push other linked downwind States over the attainment line.22 As the Good Neighbor Provision seeks attainment —————— 22 The following example, based on the record, is offered in Brief for Respondent Calpine Corp. et al. in Support of Petitioners 52–54. Ohio, 30 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court in every downwind State, however, exceeding attainment in one State cannot rank as “over-control” unless unneces­ sary to achieving attainment in any downwind State. Only reductions unnecessary to downwind attainment anywhere fall outside the Agency’s statutory authority.23 Second, while EPA has a statutory duty to avoid over­ control, the Agency also has a statutory obligation to avoid “under-control,” i.e., to maximize achievement of attain­ ment downwind. For reasons earlier explained, see supra, at 3–4, a degree of imprecision is inevitable in tackling the problem of interstate air pollution. Slight changes in wind patterns or energy consumption, for example, may vary downwind air quality in ways EPA might not have antici­ pated. The Good Neighbor Provision requires EPA to seek —————— West Virginia, Pennsylvania, and Indiana each contribute in varying amounts to five different nonattainment areas in three downwind States. Id., at 52. Implementation of the Transport Rule, EPA model­ ing demonstrates, will bring three of these five areas into attainment by a comfortable margin, and a fourth only barely. See id., at 53, fig. 2. The fifth downwind receptor, however, will still fall short of attainment despite the reductions the rule requires. See ibid. But if EPA were to lower the emission reductions required of the upwind States to reduce over-attainment in the first three areas, the area barely achieving attainment would no longer do so, and the area still in nonattainment would fall even further behind. Thus, “over-control” of the first three downwind receptors is essential to the attainment achieved by the fourth and to the fifth’s progress toward that goal. 23 The dissent suggests that our qualification of the term “over­ control” is tantamount to an admission that “nothing stands in the way of [a] proportional-reduction approach.” Post, at 9. Not so. Permitting “over-control” as to one State for the purpose of achieving attainment in another furthers the stated goal of the Good Neighbor Provision, i.e., attainment of NAAQS. By contrast, a proportional-reduction scheme is neither necessary to achieve downwind attainment, nor mandated by the terms of the statute, as earlier discussed, see supra, at 21–25. Permitting “over-control” for the purpose of achieving proportionality would thus contravene the clear limits the statute places on EPA’s good neighbor authority, i.e., to eliminate only those “amounts” of upwind pollutants essential to achieving attainment downwind. Cite as: 572 U. S. ____ (2014) 31 Opinion of the Court downwind attainment of NAAQS notwithstanding the uncertainties. Hence, some amount of over-control, i.e., emission budgets that turn out to be more demanding than necessary, would not be surprising. Required to balance the possibilities of under-control and over-control, EPA must have leeway in fulfilling its statutory mandate. Finally, in a voluminous record, involving thousands of upwind-to-downwind linkages, respondents point to only a few instances of “unnecessary” emission reductions, and even those are contested by EPA. Compare Brief for Industry Respondents 19 with Reply Brief for Federal Petitioners 21–22. EPA, for its part, offers data, contested by respondents, purporting to show that few (if any) up­ wind States have been required to limit emissions below the one-percent threshold of significance. Compare Brief for Federal Petitioners 37, 54–55, with Brief for Industry Respondents 40. If any upwind State concludes it has been forced to regulate emissions below the one-percent threshold or beyond the point necessary to bring all downwind States into attainment, that State may bring a particularized, as­ applied challenge to the Transport Rule, along with any other as-applied challenges it may have. Cf. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 699–700 (1995) (approving agency’s reasonable interpretation of statute despite possibility of improper applications); American Hospital Assn. v. NLRB, 499 U.S. 606, 619 (1991) (rejecting facial challenge to National Labor Relations Board rule despite possible arbitrary applications). Satisfied that EPA’s cost-based methodol- ogy, on its face, is not “arbitrary, capricious, or manifestly contrary to the statute,” Chevron, 467 U.S., at 844, we uphold the Transport Rule. The possibility that the rule, in uncommon particular applications, might exceed EPA’s statutory authority does not warrant judicial condemna­ tion of the rule in its entirety. 32 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court In sum, we hold that the CAA does not command that States be given a second opportunity to file a SIP after EPA has quantified the State’s interstate pollution obliga­ tions. We further conclude that the Good Neighbor Provi­ sion does not require EPA to disregard costs and consider exclusively each upwind State’s physically proportionate responsibility for each downwind air quality problem. EPA’s cost-effective allocation of emission reductions among upwind States, we hold, is a permissible, work- able, and equitable interpretation of the Good Neighbor Provision. * * * For the reasons stated, the judgment of the United States Court of Appeals for the D. C. Circuit is reversed, and the cases are remanded for further proceedings con­ sistent with this opinion. It is so ordered. JUSTICE ALITO took no part in the consideration or decision of these cases. Cite as: 572 U. S. ____ (2014) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 12–1182 and 12–1183 _________________ ENVIRONMENTAL PROTECTION AGENCY ET AL., PETITIONERS 12–1182 v. EME HOMER CITY GENERATION, L. P., ET AL.; AND AMERICAN LUNG ASSOCIATION ET AL., PETITIONERS 12–1183 v. EME HOMER CITY GENERATION, L. P., ET AL.

These cases concern the efforts of Congress and the Environmental Protection Agency (EPA or Agency) to cope with a complex problem: air pollution emitted in one State, but causing harm in other States. Left unregulated, the emitting or upwind State reaps the benefits of the economic activity causing the pollution without bearing all the costs. See Revesz, Federalism and Interstate Envi­ ronmental Externalities, (1996). Conversely, downwind States to which the pollu­ tion travels are unable to achieve clean air because of the influx of out-of-state pollution they lack authority to con­ trol. See S. Rep. No. 101–228, p. 49 To tackle the 2 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court problem, Congress included a Good Neighbor Provision in the Clean Air Act (Act or CAA). That provision, in its current phrasing, instructs States to prohibit in-state sources “from emitting any air pollutant in amounts which will contribute significantly” to downwind States’ “nonattainment or interfere with maintenance,” of any EPA-promulgated national air quality standard. 42 U.S. C. Interpreting the Good Neighbor Provision, EPA adopted the Cross-State Air Pollution Rule (commonly and herein­ after called the Transport Rule). The rule calls for consid­ eration of costs, among other factors, when determining the emission reductions an upwind State must make to improve air quality in polluted downwind areas. The Court of Appeals for the D. C. Circuit vacated the rule in its entirety. It held, 2 to 1, that the Good Neighbor Provi­ sion requires EPA to consider only each upwind State’s physically proportionate responsibility for each downwind State’s air quality That reading is demanded, according to the D. C. Circuit, so that no State will be required to decrease its emissions by more than its ratable share of downwind-state pollution. In U. S. A. we reversed a D. C. Circuit decision that failed to accord deference to EPA’s reasonable interpretation of an ambiguous Clean Air Act provision. Satisfied that the Good Neighbor Provision does not command the Court of Appeals’ cost-blind con­ struction, and that EPA reasonably interpreted the provi­ sion, we reverse the D. C. Circuit’s judgment. I A Air pollution is transient, heedless of state boundaries. Pollutants generated by upwind sources are often trans­ ported by air currents, sometimes over hundreds of miles, Cite as: 572 U. S. (2014) 3 Opinion of the Court to downwind States. As the pollution travels out of state, upwind States are relieved of the associated costs. Those costs are borne instead by the downwind States, whose ability to achieve and maintain satisfactory air quality is hampered by the steady stream of infiltrating pollution. For several reasons, curtailing interstate air pollution poses a complex challenge for environmental regulators. First, identifying the upwind origin of downwind air pollu­ tion is no easy endeavor. Most upwind States propel pollutants to more than one downwind State, many downwind States receive pollution from multiple upwind States, and some States qualify as both upwind and downwind. See rief for Federal Petitioners 6. The over­ lapping and interwoven linkages between upwind and downwind States with which EPA had to contend number in the thousands.1 Further complicating the problem, pollutants do not emerge from the smokestacks of an upwind State and uniformly migrate downwind. Some pollutants stay with­ in upwind States’ borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. “The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.” The Holy ible, John 3:8 (King James Version). In craft­ ing a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind. Finally, upwind pollutants that find their way down­ wind are not left unaltered by the journey. Rather, as the gases emitted by upwind polluters are carried downwind, they are transformed, through various chemical processes, into altogether different pollutants. The offending gases —————— 1 For the rule challenged here, EPA evaluated 2,479 separate link­ ages between downwind and upwind States. rief for Federal Petition­ ers 6. 4 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court at issue in these cases—nitrogen oxide (NOX) and sulfur dioxide (SO2)—often develop into ozone and fine particu­ late matter (PM2.5) by the time they reach the atmos­ pheres of downwind States. See – 48223 (2011). See also –4576 (describing the components of ozone and PM2.5). Down­ wind air quality must therefore be measured for ozone and PM2.5 concentrations. EPA’s chore is to quantify the amount of upwind gases (NOX and SO2) that must be reduced to enable downwind States to keep their levels of ozone and PM2.5 in check. Over the past 50 years, Congress has addressed inter­ state air pollution several times and with increasing rigor. In 1963, Congress directed federal authorities to “encour­ age cooperative activities by the States and local govern­ ments for the prevention and control of air pollution.” 77 Stat. 393, 42 U.S. C. (1964 ed.). In 1970, Congress made this instruction more concrete, introducing features still key to the Act. For the first time, Congress directed EPA to establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health. See –1680, as amended, 42 U.S. C. 7409 (2006 ed.). Once EPA settles on a NAAQS, the Act requires the Agency to designate “nonattainment” areas, i.e., locations where the concentration of a regulated pollutant exceeds the NAAQS. The Act then shifts the burden to States to propose plans adequate for compliance with the NAAQS. Each State must submit a State Implementation Plan, or SIP, to EPA within three years of any new or revised NAAQS. If EPA determines that a State has failed to submit an adequate SIP, either in whole or in part, the Act requires the Agency to promulgate a Federal Implementa­ tion Plan, or FIP, within two years of EPA’s determina­ Cite as: 572 U. S. (2014) 5 Opinion of the Court tion, “unless the State corrects the deficiency” before a FIP is issued. The Act lists the matters a SIP must cover. Among SIP components, the 1970 version of the Act required SIPs to include “adequate provisions for intergovernmental coop­ eration” concerning interstate air pollution. 42 U.S. C. This statutory requirement, with its text altered over time, has come to be called the Good Neighbor Provision. In 1977, Congress amended the Good Neighbor Provi­ sion to require more than “cooperation.” It directed States to submit SIPs that included provisions “adequate” to “prohibi[t] any stationary source within the State from emitting any air pollutant in amounts which will prevent attainment or maintenance [of air quality stand­ ards] by any other State.” 42 U.S. C. (1976 ed., Supp. II). The amended provision thus explicitly instructed upwind States to reduce emissions to account for pollution exported beyond their borders. As then written, however, the provision regulated only individual sources that, considered alone, emitted enough pollution to cause nonattainment in a downwind State. ecause it is often “impossible to say that any single source or group of sources is the one which actually prevents attainment” downwind, S. Rep. No. 101– 228, p. 21 the 1977 version of the Good Neighbor Provision proved ineffective, see (noting the provi­ sion’s inability to curb the collective “emissions [of] multi­ ple sources”). Congress most recently amended the Good Neighbor Provision in 1990. The statute, in its current form, re­ quires SIPs to “contain adequate provisions prohibiting —————— 2 FIPs and SIPs were introduced in the 1970 version of the Act; the particular deadlines discussed here were added in 1990. See 104 Stat. 2409, 2422–2423, 42 U.S. C. 7410(c) (2006 ed.). 6 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS].” 42 U.S. C. (2006 ed.). The controversy before us centers on EPA’s most recent attempt to construe this provision. C Three times over the past two decades, EPA has at­ tempted to delineate the Good Neighbor Provision’s scope by identifying when upwind States “contribute significantly” to nonattainment downwind. In 1998, EPA issued a rule known as the “NOX SIP Call.” That regulation lim­ ited NOX emissions in 23 upwind States to the extent such emissions contributed to nonattainment of ozone stand­ ards in downwind States. See 57358. In the D. C. Cir­ cuit upheld the NOX SIP Call, specifically affirming EPA’s use of costs to determine when an upwind State’s contri­ bution was “significan[t]” within the meaning of the stat­ ute. 74–679. In 2005, EPA issued the Clean Air Interstate Rule, or CAIR. CAIR regulated both NOX and SO2 emissions, insofar as such emissions contributed to downwind nonattainment of two NAAQS, both set in 1997, one concerning the permissible annual measure of PM2.5, and another capping the average ozone level gauged over an 8-hour period. See The D. C. Circuit initially vacated CAIR as arbitrary and capricious. See North (per curiam). On rehearing, the court decided to leave the rule in place, while encouraging EPA to act with dispatch in dealing with problems the court had identified. See North The rule challenged here—the Transport Rule—is EPA’s Cite as: 572 U. S. (2014) 7 Opinion of the Court response to the D. C. Circuit’s North Carolina decision. Finalized in August 2011, the Transport Rule curtails NOX and SO2 emissions of 27 upwind States to achieve down­ wind attainment of three different NAAQS: the two 1997 NAAQS previously addressed by CAIR, and the 2006 NAAQS for PM2.5 levels measured on a daily basis. See 76 Fed. Reg. 48208–48209. Under the Transport Rule, EPA employed a “two-step approach” to determine when upwind States “contribute[d] significantly to nonattainment,” and there­ fore in “amounts” that had to be eliminated. At step one, called the “screening” analysis, the Agency excluded as de minimis any upwind State that contributed less than one percent of the three NAAQS3 to any downwind State “receptor,” a location at which EPA measures air quality. See at 48236–482.4 If all of an upwind State’s con­ tributions fell below the one-percent threshold, that State would be considered not to have “contribute[d] signifi- cantly” to the nonattainment of any downwind State. at 48236. States in that category were screened out and exempted from regulation under the rule. The remaining States were subjected to a second in­ quiry, which EPA called the “control” analysis. At this stage, the Agency sought to generate a cost-effective allo­ cation of emission reductions among those upwind States “screened in” at step one. The control analysis proceeded this way. EPA first calculated, for each upwind State, the quantity of emis­ sions the State could eliminate at each of several cost —————— 3 With respect to each NAAQS addressed by the rule, the one-percent threshold corresponded to levels of 0.15 micrograms per cubic meter (µg/m3) for annual PM2.5, 0.35 µg/m3 for daily PM2.5, and 0.8 parts per billion (ppb) for 8-hour ozone. See –482. 4 If, for example, the NAAQS for ozone were 100 ppb, a contribution of less than 1 ppb to any downwind location would fall outside EPA’s criteria for significance. 8 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court thresholds. See at 48248–48249. Cost for these pur­ poses is measured as cost per ton of emissions prevented, for instance, by installing scrubbers on powerplant smoke­ stacks.5 EPA estimated, for example, the amount each upwind State’s NOX emissions would fall if all pollution sources within each State employed every control measure available at a cost of $500 per ton or less. See at 48249–48251. The Agency then repeated that analysis at ascending cost thresholds. See 6 Armed with this information, EPA conducted complex modeling to establish the combined effect the upwind reductions projected at each cost threshold would have on air quality in downwind States. See The Agency then identified “significant cost threshold[s],” points in its model where a “noticeable change occurred in downwind air quality, such as where large upwind emission reductions become available because a certain type of emissions control strategy becomes cost-effective.” For example, reductions of NOX sufficient to resolve or significantly curb downwind air quality problems could be achieved, EPA determined, at a cost threshold of $500 per ton (applied uniformly to all regulated upwind States). “Moving beyond the $500 cost threshold,” EPA concluded, “would result in only minimal additional reductions [in emissions].”7 Finally, EPA translated the cost thresholds it had se­ —————— 5 Toillustrate, a technology priced at $5,000 and capable of eliminat­ ing two tons of pollution would be stated to “cost” $2,500 per ton. 6 For SO2, EPA modeled reductions that would be achieved at cost levels of $500, $1,600, $2,300, $2,800, $3,300, and $10,000 per ton eliminated. See at 48251–48253. 7 For SO2, EPA determined that, for one group of upwind States, all downwind air quality problems would be resolved at the $500 per ton threshold. See For another group of States, however, this level of controls would not suffice. For those States, EPA found that pollution controls costing $2,300 per ton were necessary. See at 48259. Cite as: 572 U. S. (2014) 9 Opinion of the Court lected into amounts of emissions upwind States would be required to eliminate. For each regulated upwind State, EPA created an annual emissions “budget.” These budg­ ets represented the quantity of pollution an upwind State would produce in a given year if its in-state sources im­ plemented all pollution controls available at the chosen cost thresholds. See8 If EPA’s projected improvements to downwind air quality were to be realized, an upwind State’s emissions could not exceed the level this budget allocated to it, subject to certain adjustments not relevant here. Taken together, the screening and control inquiries defined EPA’s understanding of which upwind emissions were within the Good Neighbor Provision’s ambit. In short, under the Transport Rule, an upwind State “con­ tribute[d] significantly” to downwind nonattainment to the extent its exported pollution both (1) produced one percent or more of a NAAQS in at least one downwind State (step one) and (2) could be eliminated cost-effectively, as deter­ mined by EPA (step two). See Upwind States would be obliged to eliminate all and only emis­ sions meeting both of these criteria.9 For each State regulated by the Transport Rule, EPA contemporaneously promulgated a FIP allocating that State’s emission budget among its in-state sources. See 48284–48287.10 For each of these States, —————— 8 In 2014, for example, pollution sources within Texas would be per­ mitted to emit no more than 243,954 tons of SO2, subject to variations specified by EPA. See 9 Similarly, upwind States EPA independently determined to be “in­ terfer[ing] with [the] maintenance” of NAAQS downwind were required to eliminate pollution only to the extent their emissions satisfied both of these criteria. See 10 These FIPs specified the maximum amount of pollution each in­ state pollution source could emit. Sources below this ceiling could sell unused “allocations” to sources that could not reduce emissions to the necessary level as cheaply. See –48272. This type of “cap­ 10 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court EPA had determined that the State had failed to submit a SIP adequate for compliance with the Good Neighbor Provision. These determinations regarding SIPs became final after 60 days, see 42 U.S. C. ed., Supp. V ), and many went unchallenged.11 EPA views the SIP determinations as having triggered its statutory obligation to promulgate a FIP within two years, see a view contested by respondents, see Part II, infra. D A group of state and local governments (State respond­ ents), joined by industry and labor groups (Industry re­ spondents), petitioned for review of the Transport Rule in the U. S. Court of Appeals for the D. C. Circuit. Over the dissent of Judge Rogers, the Court of Appeals vacated the rule in its entirety. See EPA’s actions, the appeals court held, exceeded the Agency’s statutory authority in two respects. y promul­ gating FIPs before giving States a meaningful opportunity to adopt their own implementation plans, EPA had, in the court’s view, upset the CAA’s division of responsibility between the States and the Federal Government. In the main, the Court of Appeals acknowledged, EPA’s FIP authority is triggered at the moment the Agency disap­ proves a SIP. See Thus, when a State proposes —————— and-trade” system cuts costs while still reducing pollution to target levels. 11 Three States did challenge EPA’s determinations. See Petition for Review in Ohio v. EPA, No. 11–3988 (CA6); Petition for Review in Kansas v. EPA, No. 12–1019 (CADC); Notice in Georgia v. EPA, No. 11– 1427 (CADC). Those challenges were not consolidated with this pro­ ceeding, and they remain pending (held in abeyance for these cases) in the Sixth and D. C. Circuits. See Twelfth Joint Status Report in Ohio v. EPA, No. 11–3988 (CA6); Order in Kansas v. EPA, No. 11–1333 (CADC, May 10, 2013); Order in Georgia v. EPA, No. 11–1427 (CADC, May 10, 2013). Cite as: 572 U. S. (2014) 11 Opinion of the Court a SIP inadequate to achieve a NAAQS, EPA could promul­ gate a FIP immediately after disapproving that SIP. See ut the Court of Appeals ruled that a different regime applies to a State’s failure to meet its obligations under the Good Neighbor Provision. While a NAAQS was a “clear numerical target,” a State’s good neighbor obligation remained “nebulous and unknown,” the court observed, until EPA calculated the State’s emission budget. Without these budgets, the Court of Appeals said, upwind States would be compelled to take a “stab in the dark” at calculating their own significant contribution to interstate air pollution. The D. C. Circuit read the Act to avoid putting States in this position: EPA had an implicit statutory duty, the court held, to give upwind States a reasonable opportunity to allocate their emission budgets among in-state sources before the Agency’s authority to issue FIPs could be triggered. at The D. C. Circuit also held that the Agency’s two-part interpretation of the Good Neighbor Provision ignored three “red lines cabin[ing the] EPA’s authority.” at 19. First, the D. C. Circuit interpreted the Good Neighbor Provision to require upwind States to reduce emissions in “a manner proportional to their contributio[n]” to pollution in downwind States. The Transport Rule, however, treated all regulated upwind States alike, re­ gardless of their relative contribution to the overall prob­ lem. See It required all upwind States “screened in” at step one to reduce emissions in accord with the uniform cost thresholds set during the step two control analysis. Imposing these uniform cost thresholds, the Court of Appeals observed, could force some upwind States to reduce emissions by more than their “fair share.” According to the Court of Appeals, EPA had also failed to ensure that the Transport Rule did not mandate up­ 12 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court wind States to reduce pollution unnecessarily. The Good Neighbor Provision, the D. C. Circuit noted, “targets [only] those emissions from upwind States that ‘contribute sig­ nificantly to nonattainment’ ” of a NAAQS in downwind States. Pollution reduction beyond that goal was “unnecessary over-control,” outside the purview of the Agency’s statutory mandate. ecause the emission budgets were calculated by reference to cost alone, the court concluded that EPA had done nothing to guard against, or even measure, the “over-control” potentially imposed by the Transport Rule. See Finally, by deciding, at the screening analysis, that upwind contributions below the one-percent threshold were insignificant, EPA had established a “floor” on the Agency’s authority to act. See and n. 13. Again pointing to the rule’s reliance on costs, the Court of Ap­ peals held that EPA had failed to ensure that upwind States were not being forced to reduce emissions below the one-percent threshold. See In dissent, Judge Rogers criticized the majority for deciding two questions that were not, in her view, properly before the court. See at 40–46, 51–58. First, she addressed the majority’s insistence that FIPs abide a State’s opportunity to allocate its emission budget among in-state sources. She regarded the respondents’ plea to that effect as an untimely attack on EPA’s previous SIP disapprovals. See at 40–46. Second, in Judge Rogers’ assessment, the respondents had failed to raise their substantive objections to the Transport Rule with the specificity necessary to preserve them for review. See at 51–58. On the merits, Judge Rogers found nothing in the Act to require, or even suggest, that EPA must quan- tify a State’s good neighbor obligations before it promul­ gated a FIP. See at 46–51. She also disagreed with the court’s conclusion that the Transport Rule unreasona­ bly interpreted the Act. See at 58–60. Cite as: 572 U. S. (2014) 13 Opinion of the Court We granted certiorari to decide whether the D. C. Cir­ cuit had accurately construed the limits the CAA places on EPA’s authority. See 570 U. S. (2013). II A Once EPA has calculated emission budgets, the D. C. Circuit held, the Agency must give upwind States the opportunity to propose SIPs allocating those budgets among in-state sources before issuing a FIP. 696 F.3d, at As the State respondents put it, a FIP allocating a State’s emission budget “must issue after EPA has quanti­ fied the States’ good-neighbor obligations [in an emission budget] and given the States a reasonable opportunity to meet those obligations in SIPs.” rief for State Respond­ ents 20. efore reaching the merits of this argument, we first reject EPA’s threshold objection that the claim is untimely. According to the Agency, this argument—and the D. C. Circuit’s opinion accepting it—rank as improper collateral attacks on EPA’s prior SIP disapprovals. As earlier re­ counted, see at 9–10, EPA, by the time it issued the Transport Rule, had determined that each regulated upwind State had failed to submit a SIP adequate to satisfy the Good Neighbor Provision. Many of those de­ terminations, because unchallenged, became final after 60 days, see 42 U.S. C. and did so before the petitions here at issue were filed. EPA argues that the Court cannot question exercise of the Agency’s FIP author­ ity without subjecting these final SIP disapprovals to untimely review. We disagree. The gravamen of the State respondents’ challenge is not that EPA’s disapproval of any particular SIP was erroneous. Rather, respondents urge that, not­ withstanding these disapprovals, the Agency was obliged to grant an upwind State a second opportunity to promul­ 14 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court gate adequate SIPs once EPA set the State’s emission budget. This claim does not depend on the validity of the prior SIP disapprovals. Even assuming the legitimacy of those disapprovals, the question remains whether EPA was required to do more than disapprove a SIP, as the State respondents urge, to trigger the Agency’s statutory authority to issue a FIP.12 Turning to the merits, we hold that the text of the stat­ ute supports EPA’s position. As earlier noted, see at 4–5, the CAA sets a series of precise deadlines to which the States and EPA must adhere. Once EPA issues any new or revised NAAQS, a State has three years to adopt a SIP adequate for compliance with the Act’s requirements. See 42 U.S. C. Among those requirements is the Act’s mandate that SIPs “shall” include provisions sufficient to satisfy the Good Neighbor Provision. If EPA determines a SIP to be inadequate, the Agency’s mandate to replace it with a FIP is no less absolute: “[EPA] shall promulgate a [FIP] at any time within 2 years after the [Agency] “(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum [relevant] criteria or —————— 12 The State respondents make a second argument we do not reach. They urge that EPA could not impose FIPs on several upwind States whose SIPs had been previously approved by the Agency under CAIR. EPA changed those approvals to disapprovals when it issued the Transport Rule, see and the States assert that the process by which EPA did so was improper. That argument was not passed on by the D. C. Circuit, see and we leave it for the Court of Appeals to consider in the first instance on remand. Cite as: 572 U. S. (2014) 15 Opinion of the Court “() disapproves a [SIP] in whole or in part, “unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before the [Agency] promulgates such [FIP].” In other words, once EPA has found a SIP inadequate, the Agency has a statutory duty to issue a FIP “at any time” within two years (unless the State first “corrects the defi­ ciency,” which no one contends occurred here). The D. C. Circuit, however, found an unwritten excep­ tion to this strict time prescription for SIPs aimed at implementing the Good Neighbor Provision. Expecting any one State to develop a “comprehensive solution” to the “collective problem” of interstate air pollution without first receiving EPA’s guidance was, in the Court of Appeals’ assessment, “set[ting] the States up to fail.” 696 F.3d, at 36–. The D. C. Circuit therefore required EPA, after promulgating each State’s emission budget, to give the State a “reasonable” period of time to propose SIPs im­ plementing its budget. See at However sensible (or not) the Court of Appeals’ posi­ tion,13 a reviewing court’s “task is to apply the text [of the statute], not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., Nothing in the Act dif­ —————— 13 On this point, the dissent argues that it is “beyond responsible debate that the States cannot possibly design FIP-proof SIPs without knowing the EPA-prescribed targets at which they must aim.” Post, at 18. Many of the State respondents thought otherwise, however, when litigating the matter in See Final rief for Petitioning States in No. 98–1497 (CADC), p. 34 (“EPA has the responsibility to establish NAAQS,” but without further intervention by EPA, “States [have] the duty and right to develop SIPs to meet those NAAQS.”). See also at (“EPA’s role is to determine whether the SIP submitted is ‘adequate’ not to dictate contents of the submittal in the first instance. [E]ach State has the right and the obligation to write a SIP that complies with including the ‘good neighbor’ provision.”). 16 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court ferentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Rather, the statute speaks without reservation: Once a NAAQS has been issued, a State “shall” propose a SIP within three years, and that SIP “shall” include, among other components, provisions adequate to satisfy the Good Neighbor Provision, Nor does the Act condition the duty to promulgate a FIP on EPA’s having first quantified an upwind State’s good neighbor obligations. As Judge Rogers observed in her dissent from the D. C. Circuit’s decision, the Act does not require EPA to furnish upwind States with information of any kind about their good neighbor obligations before a FIP issues. See Instead, a SIP’s failure to satisfy the Good Neighbor Provision, without more, triggers EPA’s obligation to issue a federal plan within two years. After EPA has disapproved a SIP, the Agency can wait up to two years to issue a FIP, during which time the State can “correc[t] the deficiency” on its own. ut EPA is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP “at any time” within the two-year limit. Carving out an exception to the Act’s precise deadlines, as the D. C. Circuit did, “rewrites a decades-old statute whose plain text and structure estab­ lish a clear chronology of federal and State responsibili­ ties.” The practical difficulties cited by the Court of Appeals do not justify departure from the Act’s plain text. See 461–462 (2002) (We “must presume that a legislature says in a statute what it means and means in a statute what it says there.” (internal quotation marks omitted)). When Con­ gress elected to make EPA’s input a prerequisite to state action under the Act, it did so expressly. States develop­ ing vehicle inspection and maintenance programs under Cite as: 572 U. S. (2014) 17 Opinion of the Court the CAA, for example, must await EPA guidance before issuing SIPs. 42 U.S. C. A State’s obli­ gation to adopt a SIP, moreover, arises only after EPA has first set the NAAQS the State must meet. Had Congress intended similarly to defer States’ discharge of their obligations under the Good Neighbor Provision, Congress, we take it, would have included a similar direc­ tion in that section. See (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”). In short, nothing in the statute places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations. y altering the schedule Congress provided for SIPs and FIPs, the D. C. Circuit stretched out the process. It al­ lowed a delay Congress did not order and placed an infor­ mation submission obligation on EPA Congress did not impose. The D. C. Circuit, we hold, had no warrant thus to revise the CAA’s action-ordering prescriptions. C At oral argument, the State respondents emphasized EPA’s previous decisions, in the NOX SIP Call and CAIR, to quantify the emission reductions required of upwind States before the window to propose a SIP closed. See Tr. of Oral Arg. –39, 42–43, 45–46. In their view, by failing to accord States a similar grace period after issuing States’ emission budgets, EPA acted arbitrarily. See Whatever pattern the Agency followed in its NOX SIP call and CAIR proceedings, EPA retained discretion to alter its course provided it gave a reasonable explanation for doing so. Motor Vehicle Mfrs. Assn. of United States, 18 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court 42 (1983). The Agency presented such an explanation in the Transport Rule. As noted, see the D. C. Circuit’s North Carolina decision admonished EPA to act with dispatch in amending or replacing CAIR, the Transport Rule’s predecessor. See 550 F.3d, at (warning EPA that the stay of the court’s decision to va­ cate CAIR would not persist “indefinite[ly]”). Given North Carolina’s stress on expeditious action to cure the infir- mities the court identified in CAIR, EPA thought it “[in]appropriate to establish [the] lengthy transition period” entailed in allowing States time to propose new or amended SIPs implementing the Transport Rule emission budgets. See (citing North Carolina, ). Endeavoring to satisfy the D. C. Circuit’s directive, EPA acted speedily, issuing FIPs contemporane­ ously with the Transport Rule. In light of the firm dead­ lines imposed by the Act, which we hold the D. C. Circuit lacked authority to alter, we cannot condemn EPA’s deci­ sion as arbitrary or capricious.14 III A The D. C. Circuit also held that the Transport Rule’s two-step interpretation of the Good Neighbor Provision conflicts with the Act. efore addressing this holding, we take up a jurisdictional objection raised by EPA. The CAA directs that “[o]nly an objection to a rule —————— 14 Inlight of the CAA’s “core principle” of cooperative federalism, the dissent believes EPA abused its discretion by failing to give States an additional opportunity to submit SIPs in satisfaction of the Good Neighbor Provision. Post, at 19. ut nothing in the statute so restricts EPA. To the contrary, as earlier observed, see the plain text of the CAA grants EPA plenary authority to issue a FIP “at any time” within the two-year period that begins the moment EPA deter­ mines a SIP to be inadequate. (emphasis added). Cite as: 572 U. S. (2014) 19 Opinion of the Court raised with reasonable specificity during the period for public comment may be raised during judicial review.” 42 U.S. C. Respondents failed to state their objections to the Transport Rule during the comment period with the “specificity” required for preservation, EPA argues. See rief for Federal Petitioners 34–42. This failure at the administrative level, EPA urges, fore­ closes judicial review. Assuming, without deciding, that respondents did not meet the Act’s “reasonable specificity” requirement during the comment period, we do not regard that lapse as “juris­ dictional.” This Court has cautioned against “profligate use” of the label “jurisdictional.” Sebelius v. Auburn Re- gional Medical Center, 568 U. S. (2013) (slip op., ). A rule may be “mandatory,” yet not “jurisdictional,” we have explained. See Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006). Section 7607(d)(7)(), we hold, is of that character. It does not speak to a court’s authority, but only to a party’s procedural obligations. See Kontrick v. Ryan, Had EPA pursued the “reasonable specificity” argument vigorously before the D. C. Circuit, we would be obligated to address the merits of the argument. See Gonzalez v. Thaler, 565 U. S. (slip op., at 10). ut EPA did not press the argument unequivocally. efore the D. C. Circuit, it indi­ cated only that the “reasonable specificity” prescription might bar judicial review. rief for Respondent EPA et al. in No. 11–1302 (CADC), p. 30. See also We therefore do not count the prescription an impassable hindrance to our adjudication of the respondents’ attack on EPA’s interpretation of the Transport Rule. We turn to that attack mindful of the importance of the issues re­ spondents raise to the ongoing implementation of the Good Neighbor Provision. 20 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court We routinely accord dispositive effect to an agency’s reasonable interpretation of ambiguous statutory lan­ guage. U. S. A. is the pathmarking decision, and it bears a notable resemblance to the cases before us. concerned EPA’s definition of the term “source,” as used in the 1977 Amendments to the CAA. Those amendments placed additional restrictions on companies’ liberty to add new pollution “sources” to their factories. See Although “source” might have been interpreted to refer to an indi­ vidual smokestack, EPA construed the term to refer to an entire plant, thereby “treat[ing] all of the pollution­ emitting devices within the [plant] as though they were encased within a single ‘bubble.’” Under the Agency’s interpretation, a new pollution-emitting device would not subject a plant to the additional restrictions if the “altera­ tion [did] not increase the total emissions [produced by] the plant.” This Court held EPA’s interpretation of “source” a rea­ sonable construction of an ambiguous statutory term. When “Congress has not directly addressed the precise [interpretative] question at issue,” we cautioned, a review­ ing court cannot “simply impose its own construction o[f] the statute.” Rather, the agency is charged with filling the “gap left open” by the ambiguity. at 866. ecause “ ‘a full understanding of the force of the statutory policy depend[s] upon more than ordinary knowledge’ ” of the situation, the administering agency’s construction is to be accorded “controlling weight unless arbitrary, capricious, or manifestly contrary to the statute.” (quoting United States v. Shimer, 367 U.S. 4, 382 (1961)). Determining that none of those terms fit EPA’s interpretation of “source,” the Court de­ ferred to the Agency’s judgment. Cite as: 572 U. S. (2014) 21 Opinion of the Court We conclude that the Good Neighbor Provision delegates authority to EPA at least as certainly as the CAA provi­ sions involved in The statute requires States to eliminate those “amounts” of pollution that “contribute significantly to nonattainment” in downwind States. 42 U.S. C. (emphasis added). Thus, EPA’s task15 is to reduce upwind pollution, but only in “amounts” that push a downwind State’s pollution concentrations above the relevant NAAQS. As noted earlier, however, the nonattainment of downwind States results from the collec­ tive and interwoven contributions of multiple upwind States. See The statute therefore calls upon the Agency to address a thorny causation problem: How should EPA allocate among multiple contributing up- wind States responsibility for a downwind State’s excess pollution? A simplified example illustrates the puzzle EPA faced. Suppose the Agency sets a NAAQS, with respect to a particular pollutant, at 100 parts per billion (ppb), and that the level of the pollutant in the atmosphere of down­ wind State A is 130 ppb. Suppose further that EPA has determined that each of three upwind States—X, Y, and Z—contributes the equivalent of 30 ppb of the relevant pollutant to State A’s airspace. The Good Neighbor Provi­ sion, as just observed, prohibits only upwind emissions that contribute significantly to downwind nonattainment. EPA’s authority under the provision is therefore limited to eliminating a total of 30 ppb,16 i.e., the overage caused by —————— 15 Though we speak here of “EPA’s task,” the Good Neighbor Provi­ sion is initially directed to upwind States. As earlier explained, see Part II–, only after a State has failed to propose a SIP ade­ quate for compliance with the provision is EPA called upon to act. 16 ecause of the uncertainties inherent in measuring interstate air pollution, see –4, reductions of exactly 30 ppb likely are unattainable. See infra, –31. 22 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court the collective contribution of States X, Y, and Z.17 How is EPA to divide responsibility among the three States? Should the Agency allocate reductions propor­ tionally (10 ppb each), on a per capita basis, on the basis of the cost of abatement, or by some other metric? See rief for Federal Petitioners 50 (noting EPA’s consideration of different approaches). The Good Neighbor Provision does not answer that question for EPA. Cf. 467 U.S., at 860 (“[T]he language of [the CAA] simply does not compel any given interpretation of the term ‘source.’ ”). Under we read Congress’ silence as a delegation of authority to EPA to select from among reasonable op­ tions. See United18 Yet the Court of Appeals believed that the Act speaks clearly, requiring EPA to allocate responsibility for reduc­ ing emissions in “a manner proportional to” each State’s “contributio[n]” to the 696 F.3d, Nothing —————— 17 For simplicity’s sake, the hypothetical assumes that EPA has not required any emission reductions by the downwind State itself. 18 The statutory gap identified also exists in the Good Neighbor Provi­ sion’s second instruction. That instruction requires EPA to eliminate amounts of upwind pollution that “interfere with maintenance” of a NAAQS by a downwind State. This mandate con­ tains no qualifier analogous to “significantly,” and yet it entails a delegation of administrative authority of the same character as the one discussed above. Just as EPA is constrained, under the first part of the Good Neighbor Provision, to eliminate only those amounts that “con­ tribute to nonattainment,” EPA is limited, by the second part of the provision, to reduce only by “amounts” that “interfere with mainte- nance,” i.e., by just enough to permit an already-attaining State to maintain satisfactory air quality. (Emphasis added.) With multiple upwind States contributing to the maintenance problem, however, EPA confronts the same challenge that the “contribute significantly” man­ date creates: How should EPA allocate reductions among multiple upwind States, many of which contribute in amounts sufficient to impede downwind maintenance? Nothing in either clause of the Good Neighbor Provision provides the criteria by which EPA is meant to apportion responsibility. Cite as: 572 U. S. (2014) 23 Opinion of the Court in the text of the Good Neighbor Provision propels EPA down this path. Understandably so, for as EPA notes, the D. C. Circuit’s proportionality approach could scarcely be satisfied in practice. See App. in No. 11–1302 etc. (CADC), p. 2312 (“[W]hile it is possible to determine an emission reduction percentage if there is a single down­ wind [receptor], most upwind states contribute to multiple downwind [receptors] (in multiple states) and would have a different reduction percentage for each one.”). To illustrate, consider a variation on the example set out above. Imagine that States X and Y now contribute air pollution to State A in a ratio of one to five, i.e., State Y contributes five times the amount of pollution to State A than does State X. If State A were the only downwind State to which the two upwind States contributed, the D. C. Circuit’s proportionality requirement would be easy to meet: EPA could require State Y to reduce its emissions by five times the amount demanded of State X. The realities of interstate air pollution, however, are not so simple. Most upwind States contribute pollution to multiple downwind States in varying amounts. See 76 Fed. Reg. 48239–48246. See also rief for Respondent Calpine Corp. et al. in Support of Petitioners 48–49 (offer­ ing examples). Suppose then that States X and Y also contribute pollutants to a second downwind State (State ), this time in a ratio of seven to one. Though State Y contributed a relatively larger share of pollution to State A, with respect to State State X is the greater offender. Following the proportionality approach with respect to State would demand that State X reduce its emissions by seven times as much as State Y. Recall, however, that State Y, as just hypothesized, had to effect five times as large a reduction with respect to State A. The Court of Appeals’ proportionality edict with respect to both State A and State appears to work neither mathematically nor in practical application. Proportionality as to one down­ 24 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court wind State will not achieve proportionality as to others. Quite the opposite. And where, as is generally true, up­ wind States contribute pollution to more than two down­ wind receptors, proportionality becomes all the more elusive. Neither the D. C. Circuit nor respondents face up to this The dissent, for its part, strains to give meaning to the D. C. Circuit’s proportionality constraint as applied to a world in which multiple upwind States contribute emissions to multiple downwind locations. In the dissent’s view, upwind States must eliminate emissions by “what­ ever minimum amount reduces” their share of the overage in each and every one of the downwind States to which they are linked. See post, at 8. In practical terms, this means each upwind State will be required to reduce emis­ sions by the amount necessary to eliminate that State’s largest downwind contribution. The dissent’s formulation, however, does not account for the combined and cumu- lative effect of each upwind State’s reductions on attain­ ment in multiple downwind locations. See (“Under a proportional-reduction approach, State X would be required to eliminate emissions of that pollutant by whatever min­ imum amount reduces both State A’s level by 0.2 unit and State ’s by 0.7 unit.” (emphasis added)). The result would be costly overregulation unnecessary to, indeed in conflict with, the Good Neighbor Provision’s goal of attainment.19 —————— 19 To see why, one need only slightly complicate the world envisioned by the dissent. Assume the world is made up of only four States—two upwind (States X and Y), and two downwind (States A and ). Suppose also, as the dissent allows, see post, at 9, that the reductions State X must make to eliminate its share of the amount by which State A is in nonattainment are more than necessary for State X to eliminate its share of State ’s nonattainment. As later explained, see infra, at 29– 30, this kind of “over-control,” we agree with the dissent, is acceptable under the statute. Suppose, however, that State Y also contributes to pollution in both State A and State such that the reductions it must Cite as: 572 U. S. (2014) 25 Opinion of the Court In response, the dissent asserts that EPA will “simply be required to make allowance for” the overregulation caused by its “proportional-reduction” approach. Post, at 11. What criterion should EPA employ to determine which States will have to make those “allowance[s]” and by how much? The dissent admits there are “multiple ways” EPA might answer those questions. ut proportionality cannot be one of those ways, for the proportional-reduction approach is what led to the over­ regulation in the first place. And if a nonproportional approach can play a role in setting the final allocation of reduction obligations, then it is hardly apparent why EPA, free to depart from proportionality at the back end, cannot do so at the outset. Persuaded that the Good Neighbor Provision does not dictate the particular allocation of emissions among con­ tributing States advanced by the D. C. Circuit, we must next decide whether the allocation method chosen by EPA is a “permissible construction of the statute.” 467 U.S., As EPA interprets the statute, upwind emissions rank as “amounts [that] contribute signifi­ cantly to nonattainment” if they (1) constitute one percent —————— make to eliminate its proportion of State ’s overage exceed the reduc­ tions it must make to bring State A into attainment. In this case, the dissent would have State X reduce by just enough to eliminate its share of State A’s nonattainment and more than enough to eliminate its share of State ’s overage. The converse will be true as to State Y: Under the dissent’s approach, State Y would have to reduce by the “minimum” necessary to eliminate its proportional share of State ’s nonattainment and more than enough to eliminate its proportion of State A’s overage. The result is that the total amount by which both States X and Y are required to reduce will exceed what is necessary for attainment in all downwind States involved (i.e., in both State A and State ). Over-control thus unnecessary to achieving attainment in all involved States is impermissible under the Good Neighbor Provision. See infra, n. 23. The problem would worsen were the hypothet­ ical altered to include more than two downwind States and two upwind States, the very real circumstances EPA must address. 26 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court or more of a relevant NAAQS in a nonattaining downwind State and (2) can be eliminated under the cost threshold set by the Agency. See In other words, to identify which emissions were to be eliminated, EPA considered both the magnitude of upwind States’ contributions and the cost associated with eliminating them. The Industry respondents argue that, however EPA ultimately divides responsibility among upwind States, the final calculation cannot rely on costs. The Good Neighbor Provision, respondents and the dissent empha­ size, “requires each State to prohibit only those ‘amounts’ of air pollution emitted within the State that ‘contribute significantly’ to another State’s nonattaintment.” rief for Industry Respondents 23 (emphasis added). See also post, The cost of preventing emissions, they urge, is wholly unrelated to the actual “amoun[t]” of air pollution an upwind State contributes. rief for Industry Respond­ ents 23. ecause the Transport Rule considers costs, respondents argue, “States that contribute identical ‘amounts’ may be deemed [by EPA] to have [made] substantially different” contributions. ut, as just explained, see –22, the Agency cannot avoid the task of choosing which among equal “amounts” to eliminate. The Agency has chosen, sensibly in our view, to reduce the amount easier, i.e., less costly, to eradicate, and nothing in the text of the Good Neighbor Provision precludes that choice. Using costs in the Transport Rule calculus, we agree with EPA, also makes good sense. Eliminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address. Effi­ cient because EPA can achieve the levels of attainment, i.e., of emission reductions, the proportional approach aims to achieve, but at a much lower overall cost. Equita­ Cite as: 572 U. S. (2014) 27 Opinion of the Court ble because, by imposing uniform cost thresholds on regu­ lated States, EPA’s rule subjects to stricter regulation those States that have done relatively less in the past to control their pollution. Upwind States that have not yet implemented pollution controls of the same stringency as their neighbors will be stopped from free riding on their neighbors’ efforts to reduce pollution. They will have to bring down their emissions by installing devices of the kind in which neighboring States have already invested. Suppose, for example, that the industries of upwind State A have expended considerable resources installing modern pollution-control devices on their plants. Facto­ ries in upwind State by contrast, continue to run old, dirty plants. Yet, perhaps because State A is more popu­ lous and therefore generates a larger sum of pollution overall, the two States’ emissions have equal effects on downwind attainment. If State A and State are re­ quired to eliminate emissions proportionally (i.e., equally), sources in State A will be compelled to spend far more per ton of reductions because they have already utilized lower cost pollution controls. State A’s sources will also have to achieve greater reductions than would have been required had they not made the cost-effective reductions in the first place. State A, in other words, will be tolled for having done more to reduce pollution in the past.20 EPA’s cost­ based allocation avoids these anomalies. Obligated to require the elimination of only those “amounts” of pollutants that contribute to the nonattain­ ment of NAAQS in downwind States, EPA must decide how to differentiate among the otherwise like contribu­ tions of multiple upwind States. EPA found decisive the —————— 20 The dissent’s approach is similarly infirm. It, too, would toll those upwind States that have already invested heavily in means to reduce the pollution their industries cause, while lightening the burden on States that have done relatively less to control pollution emanating from local enterprises. 28 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court difficulty of eliminating each “amount,” i.e., the cost in­ curred in doing so. Lacking a dispositive statutory in­ struction to guide it, EPA’s decision, we conclude, is a “reasonable” way of filling the “gap left open by Congress.”21 C The D. C. Circuit stated two further objections to EPA’s cost-based method of defining an upwind State’s contribu­ tion. Once a State was screened in at step one of EPA’s analysis, its emission budget was calculated solely with reference to the uniform cost thresholds the Agency selected at step two. The Transport Rule thus left open the possibility that a State might be compelled to reduce emissions beyond the point at which every affected down­ wind State is in attainment, a phenomenon the Court of Appeals termed “over-control.” 696 F.3d, ; see at 12. Second, EPA’s focus on costs did not foreclose, as the D. C. Circuit accurately observed, the possibility that an upwind State would be required to reduce its emissions by so much that the State no longer contributed one per­ —————— 21 The dissent, see post, at 12–13, relies heavily on our decision in In Whitman, we held that the relevant text of the CAA “unambiguously bars” EPA from considering costs when determining a NAAQS. at 471. Section 7409(b)(1) commands EPA to set NAAQS at levels “requi­ site to protect the public health” with “an adequate margin of safety.” This mandate, we observed in Whitman, was “absolute,” and precluded any other consideration (e.g., cost) in the NAAQS calculation. at 465 (internal quotation marks omitted). Not so of the Good Neighbor Provision, which grants EPA discretion to eliminate “amounts [of pollution that] contribute significantly to nonattainment” down­ wind. On the particular “amounts” that should qualify for elimination, the statute is silent. Unlike the provision at issue in Whitman, which provides express criteria by which EPA is to set NAAQS, the Good Neighbor Provision, as earlier explained, fails to provide any metric by which EPA can differentiate among the contributions of multiple upwind States. See –22. Cite as: 572 U. S. (2014) 29 Opinion of the Court cent or more of a relevant NAAQS to any downwind State. This would place the State below the mark EPA had set, during the screening phase, as the initial threshold of “significan[ce].” See and n. 13. We agree with the Court of Appeals to this extent: EPA cannot require a State to reduce its output of pollution by more than is necessary to achieve attainment in every downwind State or at odds with the one-percent threshold the Agency has set. If EPA requires an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked, the Agency will have overstepped its authority, under the Good Neighbor Provision, to eliminate those “amounts [that] contribute to nonattainment.” Nor can EPA demand reductions that would drive an upwind State’s contribution to every downwind State to which it is linked below one percent of the relevant NAAQS. Doing so would be counter to step one of the Agency’s interpreta­ tion of the Good Neighbor Provision. See 76 Fed. Reg. 48236 (“[S]tates whose contributions are below th[e] thresholds do not significantly contribute to nonattain­ ment of the relevant NAAQS.”). Neither possibility, however, justifies wholesale invali­ dation of the Transport Rule. First, instances of “over­ control” in particular downwind locations, the D. C. Cir­ cuit acknowledged, see 696 F.3d, may be incidental to reductions necessary to ensure attainment elsewhere. ecause individual upwind States often “contribute signif­ icantly” to nonattainment in multiple downwind locations, the emissions reduction required to bring one linked downwind State into attainment may well be large enough to push other linked downwind States over the attainment line.22 As the Good Neighbor Provision seeks attainment —————— 22 The following example, based on the record, is offered in rief for Respondent Calpine Corp. et al. in Support of Petitioners 52–54. Ohio, 30 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court in every downwind State, however, exceeding attainment in one State cannot rank as “over-control” unless unneces­ sary to achieving attainment in any downwind State. Only reductions unnecessary to downwind attainment anywhere fall outside the Agency’s statutory authority.23 Second, while EPA has a statutory duty to avoid over­ control, the Agency also has a statutory obligation to avoid “under-control,” i.e., to maximize achievement of attain­ ment downwind. For reasons earlier explained, see –4, a degree of imprecision is inevitable in tackling the problem of interstate air pollution. Slight changes in wind patterns or energy consumption, for example, may vary downwind air quality in ways EPA might not have antici­ pated. The Good Neighbor Provision requires EPA to seek —————— West Virginia, Pennsylvania, and Indiana each contribute in varying amounts to five different nonattainment areas in three downwind States. Implementation of the Transport Rule, EPA model­ ing demonstrates, will bring three of these five areas into attainment by a comfortable margin, and a fourth only barely. See fig. 2. The fifth downwind receptor, however, will still fall short of attainment despite the reductions the rule requires. See ut if EPA were to lower the emission reductions required of the upwind States to reduce over-attainment in the first three areas, the area barely achieving attainment would no longer do so, and the area still in nonattainment would fall even further behind. Thus, “over-control” of the first three downwind receptors is essential to the attainment achieved by the fourth and to the fifth’s progress toward that goal. 23 The dissent suggests that our qualification of the term “over­ control” is tantamount to an admission that “nothing stands in the way of [a] proportional-reduction approach.” Post, at 9. Not so. Permitting “over-control” as to one State for the purpose of achieving attainment in another furthers the stated goal of the Good Neighbor Provision, i.e., attainment of NAAQS. y contrast, a proportional-reduction scheme is neither necessary to achieve downwind attainment, nor mandated by the terms of the statute, as earlier discussed, see –25. Permitting “over-control” for the purpose of achieving proportionality would thus contravene the clear limits the statute places on EPA’s good neighbor authority, i.e., to eliminate only those “amounts” of upwind pollutants essential to achieving attainment downwind. Cite as: 572 U. S. (2014) 31 Opinion of the Court downwind attainment of NAAQS notwithstanding the uncertainties. Hence, some amount of over-control, i.e., emission budgets that turn out to be more demanding than necessary, would not be surprising. Required to balance the possibilities of under-control and over-control, EPA must have leeway in fulfilling its statutory mandate. Finally, in a voluminous record, involving thousands of upwind-to-downwind linkages, respondents point to only a few instances of “unnecessary” emission reductions, and even those are contested by EPA. Compare rief for Industry Respondents 19 with Reply rief for Federal Petitioners 21–22. EPA, for its part, offers data, contested by respondents, purporting to show that few (if any) up­ wind States have been required to limit emissions below the one-percent threshold of significance. Compare rief for Federal Petitioners 54–55, with rief for Industry Respondents 40. If any upwind State concludes it has been forced to regulate emissions below the one-percent threshold or beyond the point necessary to bring all downwind States into attainment, that State may bring a particularized, as­ applied challenge to the Transport Rule, along with any other as-applied challenges it may have. Cf. abbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 699–700 (1995) (approving agency’s reasonable interpretation of statute despite possibility of improper applications); American Hospital Assn. v. NLR, 499 U.S. 606, 619 (1991) (rejecting facial challenge to National Labor Relations oard rule despite possible arbitrary applications). Satisfied that EPA’s cost-based methodol- ogy, on its face, is not “arbitrary, capricious, or manifestly contrary to the statute,” 467 U.S., we uphold the Transport Rule. The possibility that the rule, in uncommon particular applications, might exceed EPA’s statutory authority does not warrant judicial condemna­ tion of the rule in its entirety. 32 EPA v. EME HOMER CITY GENERATION, L. P. Opinion of the Court In sum, we hold that the CAA does not command that States be given a second opportunity to file a SIP after EPA has quantified the State’s interstate pollution obliga­ tions. We further conclude that the Good Neighbor Provi­ sion does not require EPA to disregard costs and consider exclusively each upwind State’s physically proportionate responsibility for each downwind air quality EPA’s cost-effective allocation of emission reductions among upwind States, we hold, is a permissible, work- able, and equitable interpretation of the Good Neighbor Provision. * * * For the reasons stated, the judgment of the United States Court of Appeals for the D. C. Circuit is reversed, and the cases are remanded for further proceedings con­ sistent with this opinion. It is so ordered. JUSTICE ALITO took no part in the consideration or decision of these cases. Cite as: 572 U. S. (2014) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 12–1182 and 12–1183 ENVIRONMENTAL PROTECTION AGENCY ET AL., PETITIONERS 12–1182 v. EME HOMER CITY GENERATION, L. P., ET AL.; AND AMERICAN LUNG ASSOCIATION ET AL., PETITIONERS 12–1183 v. EME HOMER CITY GENERATION, L. P., ET AL.

Justice Scalia

dissenting

EPA v. EME Homer City Generation, L. P.

2014-04-29

https://www.courtlistener.com/opinion/2672207/epa-v-eme-homer-city-generation-l-p/

https://www.courtlistener.com/api/rest/v3/clusters/2672207/

2013-039

Too many important decisions of the Federal Govern­ ment are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress. With the statute involved in the present cases, however, Congress did it right. It specified quite precisely the responsibility of an upwind State under the Good Neighbor Provision: to eliminate those amounts of pollutants that it contributes to downwind problem areas. But the Environmental Protection Agency was unsatisfied with this system. Agency personnel, perhaps correctly, thought it more efficient to require reductions not in proportion to the amounts of pollutants for which each upwind State is responsible, but on the basis of how cost-effectively each can decrease emissions. 2 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting Today, the majority approves that undemocratic revi­ sion of the Clean Air Act. The Agency came forward with a textual justification for its action, relying on a farfetched meaning of the word “significantly” in the statutory text. That justification is so feeble that today’s majority does not even recite it, much less defend it. The majority reaches its result (“Look Ma, no hands!”) without benefit of text, claiming to have identified a remarkable “gap” in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis—and then, with no pretended textual justification at all, simply ex­ tends cost-benefit analysis beyond the scope of the alleged gap. Additionally, the majority relieves EPA of any obligation to announce novel interpretations of the Good Neighbor Provision before the States must submit plans that are required to comply with those interpretations. By accord­ ing the States primacy in deciding how to attain the gov­ erning air-quality standards, the Clean Air Act is preg­ nant with an obligation for the Agency to set those standards before the States can be expected to achieve them. The majority nonetheless approves EPA’s promul­ gation of federal plans implementing good-neighbor benchmarks before the States could conceivably have met those benchmarks on their own. I would affirm the judgment of the D. C. Circuit that EPA violated the law both in crafting the Transport Rule and in implementing it.1 I. The Transport Rule “It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the author­ ity delegated by Congress.” Bowen v. Georgetown Univ. —————— 1 I agree with the majority’s analysis turning aside EPA’s threshold objections to judicial review. See ante, at 13–14, 18–19. Cite as: 572 U. S. ____ (2014) 3 SCALIA, J., dissenting Hospital, 488 U.S. 204, 208 (1988). Yet today the major- ity treats the text of the Clean Air Act not as the source and ceiling of EPA’s authority to regulate interstate air pollution, but rather as a difficulty to be overcome in pursuit of the Agency’s responsibility to “craf[t] a solution to the problem of interstate air pollution.” Ante, at 3. In reality, Congress itself has crafted the solution. The Good Neighbor Provision requires each State to eliminate what­ ever “amounts” of “air pollutant[s]” “contribute significantly to nonattainment” or “interfere with maintenance” of national ambient air-quality standards (NAAQS) in other States. 42 U.S. C. §7410(a)(2)(D)(i)(I). The statute ad­ dresses solely the environmental consequences of emis­ sions, not the facility of reducing them; and it requires States to shoulder burdens in proportion to the size of their contributions, not in proportion to the ease of bearing them. EPA’s utterly fanciful “from each according to its ability” construction sacrifices democratically adopted text to bureaucratically favored policy. It deserves no defer­ ence under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). A. Alleged Textual Support: “Significantly” In the Government’s argument here, the asserted tex­ tual support for the efficient-reduction approach adopted by EPA in the Transport Rule is the ambiguity of the word “significantly” in the statutory requirement that each State eliminate those “amounts” of pollutants that “con­ tribute significantly to nonattainment” in downwind States. §7410(a)(2)(D)(i)(I) (emphasis added). As de­ scribed in the Government’s briefing: “[T]he term ‘significantly’ . . . is ambiguous, and . . . EPA may permissibly determine the amount of a State’s ‘significant’ contribution by reference to the amount of emissions reductions achievable through application of highly cost-effective controls.” Reply 4 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting Brief for Federal Petitioners 15–16 (emphasis added; some internal quotation marks omitted). And as the Government stated at oral argument: “[I]n terms of the language, ‘contribute significantly,’ . . . EPA reasonably construed that term to include a component of difficulty of achievement [i.e., cost]; that is, in common parlance, we might say that dunking a basketball is a more significant achievement for somebody who is 5 feet 10 than for somebody who is 6 feet 10.” Tr. of Oral Arg. 9 (emphasis added). But of course the statute does not focus on whether the upwind State has “achieved significantly”; it asks whether the State has “contributed significantly” to downwind pollution. The provision addresses the physical effects of physical causes, and it is only the magnitude of the rela­ tionship sufficient to trigger regulation that admits of some vagueness. Stated differently, the statute is ambig­ uous as to how much of a contribution to downwind pollu­ tion is “significant,” but it is not at all ambiguous as to whether factors unrelated to the amounts of pollutants that make up a contribution affect the analysis. Just as “[i]t does not matter whether the word ‘yellow’ is ambigu­ ous when the agency has interpreted it to mean ‘purple,’ ” United States v. Home Concrete & Supply, LLC, 566 U. S. ___, ___, n. 1 (2012) (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 2, n. 1), it does not matter whether the phrase “amounts which . . . contribute significantly [to downwind NAAQS nonattainment]” is ambiguous when EPA has interpreted it to mean “amounts which are inexpensive to eliminate.” It would be extraordinary for Congress, by use of the single word “significantly,” to transmogrify a statute that assigns responsibility on the basis of amounts of pollut­ ants emitted into a statute authorizing EPA to reduce interstate pollution in the manner that it believes most Cite as: 572 U. S. ____ (2014) 5 SCALIA, J., dissenting efficient. We have repeatedly said that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (citing MCI Telecommunications Corp. v. American Tele- phone & Telegraph Co., 512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159– 160 (2000)). The statute’s history demonstrates that “significantly” is not code for “feel free to consider compliance costs.” The previous version of the Good Neighbor Provision required each State to prohibit emissions that would “prevent at­ tainment or maintenance by any other State of any [NAAQS].” 91 Stat. 693 (emphasis added). It is evident that the current reformulation (targeting “any air pollut- ant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS]”) was meant simply to eliminate any implication that the polluting State had to be a but-for rather than merely a contributing cause of the downwind nonattainment or maintenance problem—not to allow cost concerns to creep in through the back door. In another respect also EPA’s reliance upon the word “significantly” is plainly mistaken. The Good Neighbor Provision targets for elimination not only those emissions that “contribute significantly to nonattainment [of NAAQS] in . . . any other State,” but also those that “inter­ fere with maintenance [of NAAQS] by . . . any other State.” §7410(a)(2)(D)(i)(I). The wiggle-word “significantly” is absent from the latter phrase. EPA does not— cannot—provide any textual justification for the conclu­ sion that, when the same amounts of a pollutant travel downwind from States X and Y to a single area in State A, the emissions from X but not Y can be said to “interfere 6 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting with maintenance” of the NAAQS in A just because they are cheaper to eliminate. Yet EPA proposes to use the “from each according to its ability” approach for nonat­ tainment areas and maintenance areas. To its credit, the majority does not allude to, much less try to defend, the Government’s “significantly” argument. But there is a serious downside to this. The sky-hook of “significantly” was called into service to counter the crite­ rion of upwind-state responsibility plainly provided in the statute’s text: amounts of pollutants contributed to down­ wind problem areas. See Brief for Federal Petitioners 42– 45. Having forsworn reliance on “significantly” to convert responsibility for amounts of pollutants into responsibility for easy reduction of pollutants, the majority is impaled upon the statutory text. B. The Alleged “Gap” To fill the void created by its abandonment of EPA’s “significantly” argument, the majority identifies a sup­ posed gap in the text, which EPA must fill: While the text says that each upwind State must be responsible for its own contribution to downwind pollution, it does not say how responsibility is to be divided among multiple States when the total of their combined contribution to downwind pollution in a particular area exceeds the reduction that the relevant NAAQS requires. In the example given by the majority, ante, at 21–22, when each of three upwind States contributes 30 units of a pollutant to a downwind State but the reduction required for that State to comply with the NAAQS is only 30 units, how will responsibility for that 30 units be apportioned? Wow, that’s a hard one—almost the equivalent of asking who is buried in Grant’s Tomb. If the criterion of responsibility is amounts of pollutants, then surely shared responsibility must be based upon relative amounts of pollutants—in the major­ ity’s example, 10 units for each State. The statute makes Cite as: 572 U. S. ____ (2014) 7 SCALIA, J., dissenting no sense otherwise. The Good Neighbor Provision con- tains a gap only for those who blind themselves to the obvious in order to pursue a preferred policy. But not only does the majority bring in cost-benefit analysis to fill a gap that does not really exist. Having filled that “gap,” it then extends the efficiency-based prin- ciple to situations beyond the imaginary gap—that is, situations where no apportionment is required. Even where only a single upwind State contributes pollutants to a downwind State, its annual emissions “budget” will be based not upon the amounts of pollutants it contributes, but upon what “pollution controls [are] available at the chosen cost thresholds.” Ante, at 9. EPA’s justification was its implausible (and only half-applicable) notion that “significantly” imports cost concerns into the provision. The majority, having abandoned that absurdity, is left to deal with the no-apportionment situation with no de- fense—not even an imaginary gap—against a crystal-clear statutory text. C. The Majority’s Criticisms of Proportional Reduction 1. Impossibility The majority contends that a proportional-reduction approach “could scarcely be satisfied in practice” and “appears to work neither mathematically nor in practical application,” ante, at 23—in essence, that the approach is impossible of application. If that were true, I know of no legal authority and no democratic principle that would derive from it the consequence that EPA could rewrite the statute, rather than the consequence that the statute would be inoperative. “There are sometimes statutes which no rule or canon of interpretation can make effec- tive or applicable to the situations of fact which they purport to govern. In such cases the statute must simply fail.” 3 R. Pound, Jurisprudence 493 (1959) (footnote omitted). In other words, the impossibility argument has 8 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting no independent force: It is relevant only if the majority’s textual interpretation is permissible. But in any event, the argument is wrong. The impossibility theorem rests upon the following scenario: “Imagine that States X and Y . . . contribute air pollution to State A in a ratio of one to five . . . .” Ante, at 23. And suppose that “States X and Y also contribute pollutants to a second downwind State (State B), this time in a ratio of seven to one.” Ibid. The majority concludes that “[t]he Court of Appeals’ proportionality edict with respect to both State A and State B appears to work nei­ ther mathematically nor in practical application.” Ibid. But why not? The majority’s model relies on two faulty premises—one an oversimplification and the other a mis­ apprehension. First, the majority’s formulation suggests that EPA measures the comparative downwind drift of pollutants in free-floating proportions between States. In reality, how­ ever, EPA assesses quantities (in physical units), not proportions. So, the majority’s illustration of a 1-to-5 ratio describing the relative contributions of States X and Y to State A’s pollution might mean (for example) that X is responsible for 0.2 unit of some pollutant above the NAAQS in A and that Y is responsible for 1 unit. And the second example, assuming a 7-to-1 ratio underlying State X’s and Y’s contributions to State B’s pollution, might mean that State X supplies 0.7 unit of the same pol­ lutant above the NAAQS and State Y, 0.1 unit. Under a proportional-reduction approach, State X would be re­ quired to eliminate emissions of that pollutant by what- ever minimum amount reduces both State A’s level by 0.2 unit and State B’s by 0.7 unit. State Y, in turn, would be required to curtail its emissions by whatever minimum amount decreases both State A’s measure by 1 unit and State B’s by 0.1 unit. But, the majority objects, the reductions that State X Cite as: 572 U. S. ____ (2014) 9 SCALIA, J., dissenting must make to help bring State B into compliance may be more than those necessary for it to help bring State A into compliance, resulting in “over-control” of X with respect to A. See ante, at 23–25, and n. 19. This objection discloses the second flaw in the impossibility theorem. Echoing EPA, see Brief for Federal Petitioners 47–48, the majority believes that the D. C. Circuit’s interpretation of the Good Neighbor Provision forbids over-control with respect to even a single downwind receptor. That is the only way in which the proportional-reduction approach could be deemed “to work neither mathematically nor in practical application” on its face. Ante, at 23. But the premise is incorrect. Although some of the D. C. Circuit’s simplified examples might support that conclusion, its opinion explic­ itly acknowledged that the complexity of real-world condi­ tions demands the contrary: “To be sure, . . . there may be some truly unavoidable over-control in some downwind States that occurs as a byproduct of the necessity of reduc­ ing upwind States’ emissions enough to meet the NAAQS in other downwind States.” 696 F.3d 7, 22 (2012). More­ over, the majority itself recognizes that the Good Neighbor Provision does not categorically prohibit over-control. “As the Good Neighbor Provision seeks attainment in every downwind State, . . . exceeding attainment in one State cannot rank as ‘over-control’ unless unnecessary to achiev­ ing attainment in any downwind State.” Ante, at 29–30. The majority apparently fails to appreciate that, having cleared up that potential point of confusion, nothing stands in the way of the proportional-reduction approach. The majority relies on an EPA document preceding the Transport Rule to establish the Agency’s supposed belief that the proportional-reduction approach “could scarcely be satisfied in practice.” Ante, at 23. But the document says no such thing. Rather, it shows that the Agency rejected a proportion-based, “air[-]quality-only” methodol­ ogy not because it was impossible of application, but be­ 10 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting cause it failed to account for costs. See App. in No. 11– 1302 etc. (CADC), pp. 2311–2312. The document labels as a “technical difficulty” (not an impossibility) the fact that “most upwind states contribute to multiple downwind [receptors] (in multiple states) and would have a different reduction percentage for each one.” Id., at 2312. The Clean Air Act is full of technical difficulties, and this one is overcome by requiring each State to make the greatest reduction necessary with respect to any downwind area. 2. Over-Control Apparently conceding that the proportional-reduction approach may not be impossible of application after all, the majority alternatively asserts that it would cause “costly overregulation unnecessary to, indeed in conflict with, the Good Neighbor Provision’s goal of attainment.” Ante, at 24. This assertion of massive overregulation assumes that a vast number of downwind States will be the accidental beneficiaries of collateral pollution reduc­ tions—that is, nontargeted reductions that occur as a consequence of required reductions targeted at neighbor­ ing downwind States. (Collateral pollution reduction is the opposite of collateral damage, so to speak.) The major­ ity contends that the collateral pollution reductions en­ joyed by a downwind State will cause the required upwind reductions actually targeting that State to exceed the level necessary to assure attainment or maintenance, thus producing unnecessary over-control. I have no reason to believe that the problem of over-control is as extensive and thus “costly” as the majority alleges, and the majority provides none. But never mind that. It suffices to say that over-control is no more likely to occur when the required reductions are apportioned among upwind States on the basis of amounts of pollutants contributed than when they are apportioned on the basis of cost. There is no conceivable reason why Cite as: 572 U. S. ____ (2014) 11 SCALIA, J., dissenting the efficient-reduction States that bear the brunt of the majority’s (and EPA’s) approach are less likely to be over­ controlled than the major-pollution-causing States that would bear the brunt of my (and the statute’s) approach. Indeed, EPA never attempted to establish that the Transport Rule did not produce gross over-control. See 696 F.3d, at 27. What causes the problem of over-control is not the manner of apportioning the required reductions, but the composite volume of the required reductions in each downwind State. If the majority’s approach reduces over-control (it admittedly does not entirely eliminate it), that is only because EPA applies its cost-effectiveness principle not just to determining the proportions of re­ quired reductions that each upwind State must bear, but to determining the volume of those required reductions. See supra, at 7. In any case, the solution to over-control under a propor­ tional-reduction system is not difficult to discern. In calculating good-neighbor responsibilities, EPA would simply be required to make allowance for what I have called collateral pollution reductions. The Agency would set upwind States’ obligations at levels that, after taking into account those reductions, suffice to produce attain­ ment in all downwind States. Doubtless, there are multi­ ple ways for the Agency to accomplish that task in accord­ ance with the statute’s amounts-based, proportional focus.2 The majority itself invokes an unexplained device to prevent over-control “in uncommon particular applica­ tions” of its scheme. Ante, at 31. Whatever that device is, it can serve just as well to prevent over-control under the approach I have outlined. —————— 2 The majority insists that “proportionality cannot be one of those ways.” Ante, at 25. But it is easy to imagine precluding unnecessary over-control by reducing in a percent-based manner the burdens of each upwind State linked to a given downwind area, which would retain the proportionality produced by my approach. 12 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting I fully acknowledge that the proportional-reduction approach will demand some complicated computations where one upwind State is linked to multiple downwind States and vice versa. I am confident, however, that EPA’s skilled number-crunchers can adhere to the stat- ute’s quantitative (rather than efficiency) mandate by crafting quantitative solutions. Indeed, those calculations can be performed at the desk, whereas the “from each according to its ability” approach requires the unwieldy field examination of many pollution-producing sources with many sorts of equipment. D. Our Precedent The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca- tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re- spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Con- gress, not this Court, to determine. This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regula- tion. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. Specifically, §7409(b)(1) instructed EPA to set primary NAAQS “the attainment and maintenance of which . . . are requisite to protect the public health” with “an adequate margin of safety.” One could hardly over- Cite as: 572 U. S. ____ (2014) 13 SCALIA, J., dissenting state the capaciousness of the word “adequate,” and the phrase “public health” was at least equally susceptible (indeed, much more susceptible) of permitting cost-benefit analysis as the word “significantly” is here. As the re- spondents in American Trucking argued, setting NAAQS without considering costs may bring about failing indus- tries and fewer jobs, which in turn may produce poorer and less healthy citizens. See id., at 466. But we conclud- ed that “in the context of ” the entire provision, that inter- pretation “ma[de] no sense.” Ibid. As quoted earlier, we said that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provi- sions—it does not . . . hide elephants in mouseholes.” Id., at 468. In American Trucking, the Court “refused to find im- plicit in ambiguous sections of the [Clear Air Act] an authorization to consider costs that has elsewhere, and so often, been expressly granted,” id., at 467, citing a tradition dating back to Union Elec. Co. v. EPA, 427 U.S. 246, 257, and n. 5 (1976). There are, indeed, numerous Clean Air Act provisions explicitly permitting costs to be taken into account. See, e.g., §7404(a)(1); §7521(a)(2); §7545(c)(2); §7547(a)(3); §7554(b)(2); §7571(b); §7651c(f)(1)(A). Ameri- can Trucking thus demanded “a textual commitment of authority to the EPA to consider costs,” 531 U.S., at 468— a hurdle that the Good Neighbor Provision comes nowhere close to clearing. Today’s opinion turns its back upon that case and is incompatible with that opinion.3 —————— 3 The majority shrugs off American Trucking in a footnote, reasoning that because it characterized the provision there in question as “abso- lute,” it has nothing to say about the Good Neighbor Provision, which is not absolute. See ante, at 28, n. 21. This is a textbook example of begging the question: Since the Good Neighbor Provision is not absolute (the very point at issue here), American Trucking, which dealt with a provision that is absolute, is irrelevant. To the contrary, American Trucking is right on point. As described in text, the provision at issue 14 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting II. Imposition of Federal Implementation Plans The D. C. Circuit vacated the Transport Rule for the additional reason that EPA took the reins in allocating emissions budgets among pollution-producing sources through Federal Implementation Plans (FIPs) without first providing the States a meaningful opportunity to perform that task through State Implementation Plans (SIPs). The majority rejects that ruling on the ground that “the Act does not require EPA to furnish upwind States with information of any kind about their good neighbor obligations before a FIP issues.” Ante, at 16. “[N]othing in the statute,” the majority says, “places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obliga­ tions.” Ante, at 17. This remarkably expansive reasoning makes a hash of the Clean Air Act, transforming it from a program based on cooperative federalism to one of central­ ized federal control. Nothing in the Good Neighbor Provi­ sion suggests such a stark departure from the Act’s fun­ damental structure. A. Implications of State Regulatory Primacy Down to its very core, the Clean Air Act sets forth a federalism-focused regulatory strategy. The Act begins by declaring that “air pollution prevention (that is, the reduc­ tion or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments.” §7401(a)(3) (emphasis added). State primacy permeates Title I, which addresses the promulgation and implementation of NAAQS, in par­ ticular. Under §7409(a), EPA must promulgate NAAQS for each pollutant for which air-quality criteria have been —————— here is even more categorical (“absolute”) than the provision at issue in American Trucking. Cite as: 572 U. S. ____ (2014) 15 SCALIA, J., dissenting issued pursuant to §7408. Section 7410(a)(1), in turn, requires each State, usually within three years of each new or revised NAAQS, to submit a SIP providing for its “implementation, maintenance, and enforcement.” EPA may step in to take over that responsibility if, and only if, a State discharges it inadequately. Specifically, if the Agency finds that a State has failed to make a required or complete submission or disapproves a SIP, it “shall prom­ ulgate a [FIP] at any time within 2 years . . . , unless the State corrects the deficiency, and [EPA] approves the [SIP] or [SIP] revision.” §7410(c)(1). To describe the effect of this statutory scheme in simple terms: After EPA sets numerical air-quality benchmarks, “Congress plainly left with the States . . . the power to determine which sources would be burdened by regulation and to what extent.” Union Elec. Co., 427 U.S., at 269. The States are to present their chosen means of achieving EPA’s benchmarks in SIPs, and only if a SIP fails to meet those goals may the Agency commandeer a State’s author­ ity by promulgating a FIP. “[S]o long as the ultimate effect of a State’s choice of emission limitations is compli­ ance with the [NAAQS], the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation.” Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 79 (1975). EPA, we have emphasized, “is relegated by the Act to a secondary role in the process of determining and enforcing the spe- cific, source-by-source emission limitations which are necessary if the [NAAQS] are to be met.” Ibid. The Good Neighbor Provision is one of the requirements with which SIPs must comply. §7410(a)(2)(D)(i)(I). The statutory structure described above plainly demands that EPA afford States a meaningful opportunity to allocate reduction responsibilities among the sources within their borders. But the majority holds that EPA may in effect force the States to guess at what those responsibilities 16 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting might be by requiring them to submit SIPs before learning what the Agency regards as a “significan[t]” contribu­ tion—with the consequence of losing their regulatory primacy if they guess wrong. EPA asserts that the D. C. Circuit “was wrong as a factual matter” in reasoning that States cannot feasibly implement the Good Neighbor Provision without knowing what the Agency considers their obligations to be. Brief for Federal Petitioners 29. That is literally unbelievable. The only support that EPA can muster are the assertions that “States routinely un­ dertake technically complex air quality determinations” and that “emissions information from all States is publicly available.” Ibid. As respondents rightly state: “All the scientific knowledge in the world is useless if the States are left to guess the way in which EPA might ultimately quantify ‘significan[ce].’ ” Brief for State Respondents 50. Call it “punish[ing] the States for failing to meet a standard that EPA had not yet announced and [they] did not yet know,” 696 F.3d, at 28; asking them “to hit the target . . . before EPA defines [it],” id., at 32; requiring them “to take [a] stab in the dark,” id., at 35; or “set[ting] the States up to fail,” id., at 37. Call it “hid[ing] the ball,” Brief for State Respondents 20; or a “shell game,” id., at 54. Call it “pin the tail on the donkey.” Tr. of Oral Arg. 24. As we have recently explained: “It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpre­ tations in advance or else be held liable when the agency announces its interpretations for the first time . . . and demands deference.” Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 14). That principle applies a fortiori to a regulatory regime Cite as: 572 U. S. ____ (2014) 17 SCALIA, J., dissenting that rests on principles of cooperative federalism. B. Past EPA Practice EPA itself has long acknowledged the proposition that it is nonsensical to expect States to comply with the Good Neighbor Provision absent direction about what consti­ tutes a “significan[t]” contribution to interstate pollution. The Agency consistently adopted that position prior to the Transport Rule. In 1998, when it issued the NOX SIP Call under §7410(k)(5), EPA acknowledged that “[w]ithout determining an acceptable level of NOX reductions, the upwind State would not have guidance as to what is an acceptable submission.” 63 Fed. Reg. 57370. EPA deemed it “most efficient—indeed necessary—for the Federal government to establish the overall emissions levels for the various States.” Ibid. Accordingly, the Agency quanti­ fied good-neighbor responsibilities and then allowed States a year to submit SIPs to implement them. Id., at 57450–57451. Similarly, when EPA issued the Clean Air Interstate Rule (CAIR) in 2005 under §7410(c), it explicitly “recog­ nize[d] that States would face great difficulties in develop­ ing transport SIPs to meet the requirements of today’s action without th[e] data and policies” provided by the Rule, including “judgments from EPA concerning the appropriate criteria for determining whether upwind sources contribute significantly to downwind nonattain­ ment under [§74]10(a)(2)(D).” 70 id., at 25268–25269. The Agency thus gave the States 18 months to submit SIPs implementing their new good-neighbor responsibili­ ties. See id., at 25166–25167, 25176. Although EPA published FIPs before that window closed, it specified that they were meant to serve only as a “Federal backstop” and would not become effective unless necessary “a year after the CAIR SIP submission deadline.” 71 id., at 25330– 25331 (2006). 18 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting Even since promulgating the Transport Rule, EPA has repeatedly reaffirmed that States cannot be expected to read the Agency’s mind. In other proceedings, EPA has time and again stated that although “[s]ome of the ele­ ments of the [SIP-submission process] are relatively straightforward, . . . others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS.” 76 id., at 58751 (2011). As an example of the latter, the Agency has remarked that the Good Neighbor Provision “contains numerous terms that require substan­ tial rulemaking by EPA in order to determine such basic points as what constitutes significant contribution,” citing CAIR. Ibid., n. 6. In fact, EPA repeated those precise statements not once, not twice, but 30 times following promulgation of the Transport Rule.4 Notwithstanding what parties may have argued in other litigation many years ago, it is beyond responsible debate that the States cannot possibly design FIP-proof SIPs without knowing the EPA-prescribed targets at which they must aim. EPA insists that it enjoys significant discretion—indeed, that it can consider essentially what­ ever factors it wishes—to determine what constitutes a “significan[t]” contribution to interstate pollution; and it simultaneously asserts that the States ought to know what quantities it will choose. The Agency—and the —————— 4 In addition to the citations in text, see 77 Fed. Reg. 50654, and n. 7 (2012); id., at 47577, and n. 7; id., at 46363, and n. 7; id., at 46356, and n. 9; id., at 45323, and n. 7; id., at 43199, and n. 7; id., at 38241, and n. 6; id., at 35912, and n. 7; id., at 34909, and n. 7; id., at 34901, and n. 8; id., at 34310, and n. 7; id., at 34291, and n. 8; id., at 33384, and n. 7; id., at 33375, and n. 7; id., at 23184, and n. 7; id., at 22543, and n. 4; id., at 22536, and n. 7; id., at 22253, and n. 8; id., at 21915, and n. 7; id., at 21706, and n. 6; id., at 16788, and n. 4; id., at 13241, and n. 5; id., at 6715, and n. 7; id., at 6047, and n. 4; id., at 3216, and n. 7; 76 id., at 77955, and n. 7 (2011); id., at 75852, and n. 7; id., at 70943, and n. 6; id., at 62636, and n. 3. Cite as: 572 U. S. ____ (2014) 19 SCALIA, J., dissenting majority—cannot have it both ways. C. Abuse of Discretion The majority attempts to place the blame for hollowing out the core of the Clean Air Act on “the Act’s plain text.” Ante, at 16. The first textual element to which it refers is §7410(c)’s requirement that after EPA has disapproved a SIP, it “shall promulgate a [FIP] at any time within 2 years.” That is to say, the Agency has discretion whether to act at once or to defer action until some later point during the 2-year period. But it also has discretion to work within the prescribed timetable to respect the right­ ful role of States in the statutory scheme by delaying the issuance or enforcement of FIPs pending the resubmission and approval of SIPs—as EPA’s conduct surrounding CAIR clearly demonstrates. And all of this assumes that the Agency insists on disapproving SIPs before promulgat­ ing the applicable good-neighbor standards—though in fact EPA has discretion to publicize those metrics before the window to submit SIPs closes in the first place. The majority states that the Agency “retained discretion to alter its course” from the one pursued in the NOX SIP Call and CAIR, ante, at 17, but that misses the point. The point is that EPA has discretion to arrange things so as to preserve the Clean Air Act’s core principle of state primacy—and that it is an abuse of discretion to refuse to do so. See §7607(d)(9)(A); see also 5 U.S. C. §706(2)(A) (identical text in the Administrative Procedure Act). Indeed, the proviso in §7410(c)(1) that the Agency’s au­ thority to promulgate a FIP within the 2-year period terminates if “the State corrects the deficiency, and [EPA] approves the [SIP] or [SIP] revision” explicitly contem­ plates just such an arrangement.5 —————— 5 I am unimpressed, by the way, with the explanation that the major- ity accepts for EPA’s about-face: that the D. C. Circuit admonished it to “act with dispatch in amending or replacing CAIR.” Ante, at 18 (citing 20 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting The majority’s conception of administrative discretion is so sprawling that it would allow EPA to subvert state primacy not only with respect to the interstate-pollution concerns of the Good Neighbor Provision, but with respect to the much broader concerns of the NAAQS program more generally. States must submit SIPs “within 3 years” of each new or revised NAAQS “or such shorter period as [EPA] may prescribe.” §7410(a)(1) (emphasis added). Because there is no principled reason to read that schedul­ ing provision in a less malleable manner than the one at issue here, under the majority’s view EPA could demand that States submit SIPs within a matter of days—or even hours—after a NAAQS publication or else face the imme­ diate imposition of FIPs. The second element of “plain text” on which the majority relies is small beer indeed. The Good Neighbor Provision does not expressly state that EPA must publish target quantities before the States are required to submit SIPs— even though the Clean Air Act does so for NAAQS more generally and for vehicle inspection and maintenance programs, see §7511a(c)(3)(B). From that premise, the majority reasons that “[h]ad Congress intended similarly to defer States’ discharge of their obligations under the Good Neighbor Provision, Congress . . . would have included a similar direction in that section.” Ante, at 17. Per­ haps so. But EPA itself read the statute differently when it declared in the NOX SIP Call that “[d]etermining the overall level of air pollutants allowed to be emitted in a State is comparable to determining [NAAQS], which the courts have recognized as EPA’s responsibility, and is —————— North Carolina v. EPA, 550 F.3d 1176, 1178 (2008) (per curiam)). Courts of Appeals’ raised eyebrows and wagging fingers are not law, least so when they urge an agency to take ultra vires action. Nor can the encouragement to act illegally qualify as a “good reaso[n]” for an agency’s alteration of course under FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). Cite as: 572 U. S. ____ (2014) 21 SCALIA, J., dissenting distinguishable from determining the particular mix of controls among individual sources to attain those stand­ ards, which the caselaw identifies as a State responsibil­ ity.” 63 Fed. Reg. 57369 (emphasis added). The negative implication suggested by a statute’s failure to use consistent terminology can be a helpful guide to determining meaning, especially when all the provisions in question were enacted at the same time (which is not the case here). But because that interpretive canon, like others, is just one clue to aid construction, it can be over­ come by more powerful indications of meaning elsewhere in the statute. It is, we have said, “no more than a rule of thumb that can tip the scales when a statute could be read in multiple ways.” Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 9) (internal quotation marks and brackets omitted). The Clean Air Act simply cannot be read to make EPA the primary regu­ lator in this context. The negative-implication canon is easily overcome by the statute’s state-respecting struc­ ture—not to mention the sheer impossibility of submitting a sensible SIP without EPA guidance. Negative implica­ tion is the tiniest mousehole in which the majority discov­ ers the elephant of federal control. * * * Addressing the problem of interstate pollution in the manner Congress has prescribed—or in any other manner, for that matter—is a complex and difficult enterprise. But “[r]egardless of how serious the problem an administrative agency seeks to address, . . . it may not exercise its author­ ity ‘in a manner that is inconsistent with the administra­ tive structure that Congress enacted into law.’ ” Brown & Williamson, 529 U.S., at 125 (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)). The major­ ity’s approval of EPA’s approach to the Clean Air Act violates this foundational principle of popular government. I dissent

Too many important decisions of the Federal Govern­ ment are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress. With the statute involved in the present cases, however, Congress did it right. It specified quite precisely the responsibility of an upwind State under the Good Neighbor Provision: to eliminate those amounts of pollutants that it contributes to downwind problem areas. But the Environmental Protection Agency was unsatisfied with this system. Agency personnel, perhaps correctly, thought it more efficient to require reductions not in proportion to the amounts of pollutants for which each upwind State is responsible, but on the basis of how cost-effectively each can decrease emissions. 2 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting Today, the majority approves that undemocratic revi­ sion of the Clean Air Act. The Agency came forward with a textual justification for its action, relying on a farfetched meaning of the word “significantly” in the statutory text. That justification is so feeble that today’s majority does not even recite it, much less defend it. The majority reaches its result (“Look Ma, no hands!”) without benefit of text, claiming to have identified a remarkable “gap” in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis—and then, with no pretended textual justification at all, simply ex­ tends cost-benefit analysis beyond the scope of the alleged gap. Additionally, the majority relieves EPA of any obligation to announce novel interpretations of the Good Neighbor Provision before the States must submit plans that are required to comply with those interpretations. By accord­ ing the States primacy in deciding how to attain the gov­ erning air-quality standards, the Clean Air Act is preg­ nant with an obligation for the Agency to set those standards before the States can be expected to achieve them. The majority nonetheless approves EPA’s promul­ gation of federal plans implementing good-neighbor benchmarks before the States could conceivably have met those benchmarks on their own. I would affirm the judgment of the D. C. Circuit that EPA violated the law both in crafting the Transport Rule and in implementing it.1 I. The Transport Rule “It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the author­ ity delegated by Congress.” Bowen v. Georgetown Univ. —————— 1 I agree with the majority’s analysis turning aside EPA’s threshold objections to judicial review. See ante, at 13–14, 18–19. Cite as: 572 U. S. (2014) 3 SCALIA, J., dissenting Hospital, Yet today the major- ity treats the text of the Clean Air Act not as the source and ceiling of EPA’s authority to regulate interstate air pollution, but rather as a difficulty to be overcome in pursuit of the Agency’s responsibility to “craf[t] a solution to the problem of interstate air pollution.” Ante, at 3. In reality, Congress itself has crafted the solution. The Good Neighbor Provision requires each State to eliminate what­ ever “amounts” of “air pollutant[s]” “contribute significantly to nonattainment” or “interfere with maintenance” of national ambient air-quality standards (NAAQS) in other States. 42 U.S. C. The statute ad­ dresses solely the environmental consequences of emis­ sions, not the facility of reducing them; and it requires States to shoulder burdens in proportion to the size of their contributions, not in proportion to the ease of bearing them. EPA’s utterly fanciful “from each according to its ability” construction sacrifices democratically adopted text to bureaucratically favored policy. It deserves no defer­ ence under Chevron U. S. A. A. Alleged Textual Support: “Significantly” In the Government’s argument here, the asserted tex­ tual support for the efficient-reduction approach adopted by EPA in the Transport Rule is the ambiguity of the word “significantly” in the statutory requirement that each State eliminate those “amounts” of pollutants that “con­ tribute significantly to nonattainment” in downwind States. As de­ scribed in the Government’s briefing: “[T]he term ‘significantly’ is ambiguous, and EPA may permissibly determine the amount of a State’s ‘significant’ contribution by reference to the amount of emissions reductions achievable through application of highly cost-effective controls.” Reply 4 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting Brief for Federal Petitioners 15–16 (emphasis added; some internal quotation marks omitted). And as the Government stated at oral argument: “[I]n terms of the language, ‘contribute significantly,’ EPA reasonably construed that term to include a component of difficulty of achievement [i.e., cost]; that is, in common parlance, we might say that dunking a basketball is a more significant achievement for somebody who is 5 feet 10 than for somebody who is 6 feet 10.” Tr. of Oral Arg. 9 But of course the statute does not focus on whether the upwind State has “achieved significantly”; it asks whether the State has “contributed significantly” to downwind pollution. The provision addresses the physical effects of physical causes, and it is only the magnitude of the rela­ tionship sufficient to trigger regulation that admits of some vagueness. Stated differently, the statute is ambig­ uous as to how much of a contribution to downwind pollu­ tion is “significant,” but it is not at all ambiguous as to whether factors unrelated to the amounts of pollutants that make up a contribution affect the analysis. Just as “[i]t does not matter whether the word ‘yellow’ is ambigu­ ous when the agency has interpreted it to mean ‘purple,’ ” United States v. Home Concrete & Supply, LLC, 566 U. S. n. 1 (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 2, n. 1), it does not matter whether the phrase “amounts which contribute significantly [to downwind NAAQS nonattainment]” is ambiguous when EPA has interpreted it to mean “amounts which are inexpensive to eliminate.” It would be extraordinary for Congress, by use of the single word “significantly,” to transmogrify a statute that assigns responsibility on the basis of amounts of pollut­ ants emitted into a statute authorizing EPA to reduce interstate pollution in the manner that it believes most Cite as: 572 U. S. (2014) 5 SCALIA, J., dissenting efficient. We have repeatedly said that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., ; FDA v. Brown & Tobacco Corp., 159– 160 (2000)). The statute’s history demonstrates that “significantly” is not code for “feel free to consider compliance costs.” The previous version of the Good Neighbor Provision required each State to prohibit emissions that would “prevent at­ tainment or maintenance by any other State of any [NAAQS].” It is evident that the current reformulation (targeting “any air pollut- ant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS]”) was meant simply to eliminate any implication that the polluting State had to be a but-for rather than merely a contributing cause of the downwind nonattainment or maintenance problem—not to allow cost concerns to creep in through the back door. In another respect also EPA’s reliance upon the word “significantly” is plainly mistaken. The Good Neighbor Provision targets for elimination not only those emissions that “contribute significantly to nonattainment [of NAAQS] in any other State,” but also those that “inter­ fere with maintenance [of NAAQS] by any other State.” The wiggle-word “significantly” is absent from the latter phrase. EPA does not— cannot—provide any textual justification for the conclu­ sion that, when the same amounts of a pollutant travel downwind from States X and Y to a single area in State A, the emissions from X but not Y can be said to “interfere 6 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting with maintenance” of the NAAQS in A just because they are cheaper to eliminate. Yet EPA proposes to use the “from each according to its ability” approach for nonat­ tainment areas and maintenance areas. To its credit, the majority does not allude to, much less try to defend, the Government’s “significantly” argument. But there is a serious downside to this. The sky-hook of “significantly” was called into service to counter the crite­ rion of upwind-state responsibility plainly provided in the statute’s text: amounts of pollutants contributed to down­ wind problem areas. See Brief for Federal Petitioners 42– 45. Having forsworn reliance on “significantly” to convert responsibility for amounts of pollutants into responsibility for easy reduction of pollutants, the majority is impaled upon the statutory text. B. The Alleged “Gap” To fill the void created by its abandonment of EPA’s “significantly” argument, the majority identifies a sup­ posed gap in the text, which EPA must fill: While the text says that each upwind State must be responsible for its own contribution to downwind pollution, it does not say how responsibility is to be divided among multiple States when the total of their combined contribution to downwind pollution in a particular area exceeds the reduction that the relevant NAAQS requires. In the example given by the majority, ante, at 21–, when each of three upwind States contributes 30 units of a pollutant to a downwind State but the reduction required for that State to comply with the NAAQS is only 30 units, how will responsibility for that 30 units be apportioned? Wow, that’s a hard one—almost the equivalent of asking who is buried in Grant’s Tomb. If the criterion of responsibility is amounts of pollutants, then surely shared responsibility must be based upon relative amounts of pollutants—in the major­ ity’s example, 10 units for each State. The statute makes Cite as: 572 U. S. (2014) 7 SCALIA, J., dissenting no sense otherwise. The Good Neighbor Provision con- tains a gap only for those who blind themselves to the obvious in order to pursue a preferred policy. But not only does the majority bring in cost-benefit analysis to fill a gap that does not really exist. Having filled that “gap,” it then extends the efficiency-based prin- ciple to situations beyond the imaginary gap—that is, situations where no apportionment is required. Even where only a single upwind State contributes pollutants to a downwind State, its annual emissions “budget” will be based not upon the amounts of pollutants it contributes, but upon what “pollution controls [are] available at the chosen cost thresholds.” Ante, at 9. EPA’s justification was its implausible (and only half-applicable) notion that “significantly” imports cost concerns into the provision. The majority, having abandoned that absurdity, is left to deal with the no-apportionment situation with no de- fense—not even an imaginary gap—against a crystal-clear statutory text. C. The Majority’s Criticisms of Proportional Reduction 1. Impossibility The majority contends that a proportional-reduction approach “could scarcely be satisfied in practice” and “appears to work neither mathematically nor in practical application,” ante, at 23—in essence, that the approach is impossible of application. If that were true, I know of no legal authority and no democratic principle that would derive from it the consequence that EPA could rewrite the statute, rather than the consequence that the statute would be inoperative. “There are sometimes statutes which no rule or canon of interpretation can make effec- tive or applicable to the situations of fact which they purport to govern. In such cases the statute must simply fail.” 3 R. Pound, Jurisprudence 493 (1959) (footnote omitted). In other words, the impossibility argument has 8 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting no independent force: It is relevant only if the majority’s textual interpretation is permissible. But in any event, the argument is wrong. The impossibility theorem rests upon the following scenario: “Imagine that States X and Y contribute air pollution to State A in a ratio of one to five” Ante, at 23. And suppose that “States X and Y also contribute pollutants to a second downwind State (State B), this time in a ratio of seven to one.” The majority concludes that “[t]he Court of Appeals’ proportionality edict with respect to both State A and State B appears to work nei­ ther mathematically nor in practical application.” But why not? The majority’s model relies on two faulty premises—one an oversimplification and the other a mis­ apprehension. First, the majority’s formulation suggests that EPA measures the comparative downwind drift of pollutants in free-floating proportions between States. In reality, how­ ever, EPA assesses quantities (in physical units), not proportions. So, the majority’s illustration of a 1-to-5 ratio describing the relative contributions of States X and Y to State A’s pollution might mean (for example) that X is responsible for 0.2 unit of some pollutant above the NAAQS in A and that Y is responsible for 1 unit. And the second example, assuming a 7-to-1 ratio underlying State X’s and Y’s contributions to State B’s pollution, might mean that State X supplies 0.7 unit of the same pol­ lutant above the NAAQS and State Y, 0.1 unit. Under a proportional-reduction approach, State X would be re­ quired to eliminate emissions of that pollutant by what- ever minimum amount reduces both State A’s level by 0.2 unit and State B’s by 0.7 unit. State Y, in turn, would be required to curtail its emissions by whatever minimum amount decreases both State A’s measure by 1 unit and State B’s by 0.1 unit. But, the majority objects, the reductions that State X Cite as: 572 U. S. (2014) 9 SCALIA, J., dissenting must make to help bring State B into compliance may be more than those necessary for it to help bring State A into compliance, resulting in “over-control” of X with respect to A. See ante, at 23–25, and n. 19. This objection discloses the second flaw in the impossibility theorem. Echoing EPA, see Brief for Federal Petitioners 47–48, the majority believes that the D. C. Circuit’s interpretation of the Good Neighbor Provision forbids over-control with respect to even a single downwind receptor. That is the only way in which the proportional-reduction approach could be deemed “to work neither mathematically nor in practical application” on its face. Ante, at 23. But the premise is incorrect. Although some of the D. C. Circuit’s simplified examples might support that conclusion, its opinion explic­ itly acknowledged that the complexity of real-world condi­ tions demands the contrary: “To be sure, there may be some truly unavoidable over-control in some downwind States that occurs as a byproduct of the necessity of reduc­ ing upwind States’ emissions enough to meet the NAAQS in other downwind States.” More­ over, the majority itself recognizes that the Good Neighbor Provision does not categorically prohibit over-control. “As the Good Neighbor Provision seeks attainment in every downwind State, exceeding attainment in one State cannot rank as ‘over-control’ unless unnecessary to achiev­ ing attainment in any downwind State.” Ante, at 29–30. The majority apparently fails to appreciate that, having cleared up that potential point of confusion, nothing stands in the way of the proportional-reduction approach. The majority relies on an EPA document preceding the Transport Rule to establish the Agency’s supposed belief that the proportional-reduction approach “could scarcely be satisfied in practice.” Ante, at 23. But the document says no such thing. Rather, it shows that the Agency rejected a proportion-based, “air[-]quality-only” methodol­ ogy not because it was impossible of application, but be­ 10 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting cause it failed to account for costs. See App. in No. 11– 1302 etc. (CADC), pp. 1–2. The document labels as a “technical difficulty” (not an impossibility) the fact that “most upwind states contribute to multiple downwind [receptors] (in multiple states) and would have a different reduction percentage for each one.” at 2. The Clean Air Act is full of technical difficulties, and this one is overcome by requiring each State to make the greatest reduction necessary with respect to any downwind area. 2. Over-Control Apparently conceding that the proportional-reduction approach may not be impossible of application after all, the majority alternatively asserts that it would cause “costly overregulation unnecessary to, indeed in conflict with, the Good Neighbor Provision’s goal of attainment.” Ante, at 24. This assertion of massive overregulation assumes that a vast number of downwind States will be the accidental beneficiaries of collateral pollution reduc­ tions—that is, nontargeted reductions that occur as a consequence of required reductions targeted at neighbor­ ing downwind States. (Collateral pollution reduction is the opposite of collateral damage, so to speak.) The major­ ity contends that the collateral pollution reductions en­ joyed by a downwind State will cause the required upwind reductions actually targeting that State to exceed the level necessary to assure attainment or maintenance, thus producing unnecessary over-control. I have no reason to believe that the problem of over-control is as extensive and thus “costly” as the majority alleges, and the majority provides none. But never mind that. It suffices to say that over-control is no more likely to occur when the required reductions are apportioned among upwind States on the basis of amounts of pollutants contributed than when they are apportioned on the basis of cost. There is no conceivable reason why Cite as: 572 U. S. (2014) 11 SCALIA, J., dissenting the efficient-reduction States that bear the brunt of the majority’s (and EPA’s) approach are less likely to be over­ controlled than the major-pollution-causing States that would bear the brunt of my (and the statute’s) approach. Indeed, EPA never attempted to establish that the Transport Rule did not produce gross over-control. See What causes the problem of over-control is not the manner of apportioning the required reductions, but the composite volume of the required reductions in each downwind State. If the majority’s approach reduces over-control (it admittedly does not entirely eliminate it), that is only because EPA applies its cost-effectiveness principle not just to determining the proportions of re­ quired reductions that each upwind State must bear, but to determining the volume of those required reductions. See In any case, the solution to over-control under a propor­ tional-reduction system is not difficult to discern. In calculating good-neighbor responsibilities, EPA would simply be required to make allowance for what I have called collateral pollution reductions. The Agency would set upwind States’ obligations at levels that, after taking into account those reductions, suffice to produce attain­ ment in all downwind States. Doubtless, there are multi­ ple ways for the Agency to accomplish that task in accord­ ance with the statute’s amounts-based, proportional focus.2 The majority itself invokes an unexplained device to prevent over-control “in uncommon particular applica­ tions” of its scheme. Ante, at 31. Whatever that device is, it can serve just as well to prevent over-control under the approach I have outlined. —————— 2 The majority insists that “proportionality cannot be one of those ways.” Ante, at 25. But it is easy to imagine precluding unnecessary over-control by reducing in a percent-based manner the burdens of each upwind State linked to a given downwind area, which would retain the proportionality produced by my approach. 12 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting I fully acknowledge that the proportional-reduction approach will demand some complicated computations where one upwind State is linked to multiple downwind States and vice versa. I am confident, however, that EPA’s skilled number-crunchers can adhere to the stat- ute’s quantitative (rather than efficiency) mandate by crafting quantitative solutions. Indeed, those calculations can be performed at the desk, whereas the “from each according to its ability” approach requires the unwieldy field examination of many pollution-producing sources with many sorts of equipment. D. Our Precedent The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca- tion problem the Good Neighbor Provision requires the Agency to address.” Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re- spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Con- gress, not this Court, to determine. This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regula- tion. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. Specifically, instructed EPA to set primary NAAQS “the attainment and maintenance of which are requisite to protect the public health” with “an adequate margin of safety.” One could hardly over- Cite as: 572 U. S. (2014) 13 SCALIA, J., dissenting state the capaciousness of the word “adequate,” and the phrase “public health” was at least equally susceptible (indeed, much more susceptible) of permitting cost-benefit analysis as the word “significantly” is here. As the re- spondents in American Trucking argued, setting NAAQS without considering costs may bring about failing indus- tries and fewer jobs, which in turn may produce poorer and less healthy citizens. See But we conclud- ed that “in the context of ” the entire provision, that inter- pretation “ma[de] no sense.” As quoted earlier, we said that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provi- sions—it does not hide elephants in mouseholes.” at In American Trucking, the Court “refused to find im- plicit in ambiguous sections of the [Clear Air Act] an authorization to consider costs that has elsewhere, and so often, been expressly granted,” citing a tradition dating back to Union Elec. and n. 5 (1976). There are, indeed, numerous Clean Air Act provisions explicitly permitting costs to be taken into account. See, e.g., Ameri- can Trucking thus demanded “a textual commitment of authority to the EPA to consider costs,” 531 U.S., at — a hurdle that the Good Neighbor Provision comes nowhere close to clearing. Today’s opinion turns its back upon that case and is incompatible with that opinion.3 —————— 3 The majority shrugs off American Trucking in a footnote, reasoning that because it characterized the provision there in question as “abso- lute,” it has nothing to say about the Good Neighbor Provision, which is not absolute. See ante, at 28, n. 21. This is a textbook example of begging the question: Since the Good Neighbor Provision is not absolute (the very point at issue here), American Trucking, which dealt with a provision that is absolute, is irrelevant. To the contrary, American Trucking is right on point. As described in text, the provision at issue 14 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting II. Imposition of Federal Implementation Plans The D. C. Circuit vacated the Transport Rule for the additional reason that EPA took the reins in allocating emissions budgets among pollution-producing sources through Federal Implementation Plans (FIPs) without first providing the States a meaningful opportunity to perform that task through State Implementation Plans (SIPs). The majority rejects that ruling on the ground that “the Act does not require EPA to furnish upwind States with information of any kind about their good neighbor obligations before a FIP issues.” Ante, at 16. “[N]othing in the statute,” the majority says, “places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obliga­ tions.” Ante, at 17. This remarkably expansive reasoning makes a hash of the Clean Air Act, transforming it from a program based on cooperative federalism to one of central­ ized federal control. Nothing in the Good Neighbor Provi­ sion suggests such a stark departure from the Act’s fun­ damental structure. A. Implications of State Regulatory Primacy Down to its very core, the Clean Air Act sets forth a federalism-focused regulatory strategy. The Act begins by declaring that “air pollution prevention (that is, the reduc­ tion or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments.” (emphasis added). State primacy permeates Title I, which addresses the promulgation and implementation of NAAQS, in par­ ticular. Under EPA must promulgate NAAQS for each pollutant for which air-quality criteria have been —————— here is even more categorical (“absolute”) than the provision at issue in American Trucking. Cite as: 572 U. S. (2014) 15 SCALIA, J., dissenting issued pursuant to Section 7410(a)(1), in turn, requires each State, usually within three years of each new or revised NAAQS, to submit a SIP providing for its “implementation, maintenance, and enforcement.” EPA may step in to take over that responsibility if, and only if, a State discharges it inadequately. Specifically, if the Agency finds that a State has failed to make a required or complete submission or disapproves a SIP, it “shall prom­ ulgate a [FIP] at any time within 2 years unless the State corrects the deficiency, and [EPA] approves the [SIP] or [SIP] revision.” To describe the effect of this statutory scheme in simple terms: After EPA sets numerical air-quality benchmarks, “Congress plainly left with the States the power to determine which sources would be burdened by regulation and to what extent.” Union Elec. The States are to present their chosen means of achieving EPA’s benchmarks in SIPs, and only if a SIP fails to meet those goals may the Agency commandeer a State’s author­ ity by promulgating a FIP. “[S]o long as the ultimate effect of a State’s choice of emission limitations is compli­ ance with the [NAAQS], the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation.” EPA, we have emphasized, “is relegated by the Act to a secondary role in the process of determining and enforcing the spe- cific, source-by-source emission limitations which are necessary if the [NAAQS] are to be met.” The Good Neighbor Provision is one of the requirements with which SIPs must comply. The statutory structure described above plainly demands that EPA afford States a meaningful opportunity to allocate reduction responsibilities among the sources within their borders. But the majority holds that EPA may in effect force the States to guess at what those responsibilities 16 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting might be by requiring them to submit SIPs before learning what the Agency regards as a “significan[t]” contribu­ tion—with the consequence of losing their regulatory primacy if they guess wrong. EPA asserts that the D. C. Circuit “was wrong as a factual matter” in reasoning that States cannot feasibly implement the Good Neighbor Provision without knowing what the Agency considers their obligations to be. Brief for Federal Petitioners 29. That is literally unbelievable. The only support that EPA can muster are the assertions that “States routinely un­ dertake technically complex air quality determinations” and that “emissions information from all States is publicly available.” As respondents rightly state: “All the scientific knowledge in the world is useless if the States are left to guess the way in which EPA might ultimately quantify ‘significan[ce].’ ” Brief for State Respondents 50. Call it “punish[ing] the States for failing to meet a standard that EPA had not yet announced and [they] did not yet know,” ; asking them “to hit the target before EPA defines [it],” ; requiring them “to take [a] stab in the dark,” ; or “set[ting] the States up to fail,” Call it “hid[ing] the ball,” Brief for State Respondents 20; or a “shell game,” at 54. Call it “pin the tail on the donkey.” Tr. of Oral Arg. 24. As we have recently explained: “It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpre­ tations in advance or else be held liable when the agency announces its interpretations for the first time and demands deference.” Christopher v. SmithKline Beecham Corp., 567 U. S. (slip op., at 14). That principle applies a fortiori to a regulatory regime Cite as: 572 U. S. (2014) 17 SCALIA, J., dissenting that rests on principles of cooperative federalism. B. Past EPA Practice EPA itself has long acknowledged the proposition that it is nonsensical to expect States to comply with the Good Neighbor Provision absent direction about what consti­ tutes a “significan[t]” contribution to interstate pollution. The Agency consistently adopted that position prior to the Transport Rule. In 1998, when it issued the NOX SIP Call under EPA acknowledged that “[w]ithout determining an acceptable level of NOX reductions, the upwind State would not have guidance as to what is an acceptable submission.” EPA deemed it “most efficient—indeed necessary—for the Federal government to establish the overall emissions levels for the various States.” Accordingly, the Agency quanti­ fied good-neighbor responsibilities and then allowed States a year to submit SIPs to implement them. at 57450–57451. Similarly, when EPA issued the Clean Air Interstate Rule (CAIR) in 2005 under it explicitly “recog­ nize[d] that States would face great difficulties in develop­ ing transport SIPs to meet the requirements of today’s action without th[e] data and policies” provided by the Rule, including “judgments from EPA concerning the appropriate criteria for determining whether upwind sources contribute significantly to downwind nonattain­ ment under 70 at 25268–25269. The Agency thus gave the States 18 months to submit SIPs implementing their new good-neighbor responsibili­ ties. See at 25166–25167, 26. Although EPA published FIPs before that window closed, it specified that they were meant to serve only as a “Federal backstop” and would not become effective unless necessary “a year after the CAIR SIP submission deadline.” 71 at 25330– 25331 (2006). 18 EPA v. EME HOMER CITY GENERATION, L. P. SCALIA, J., dissenting Even since promulgating the Transport Rule, EPA has repeatedly reaffirmed that States cannot be expected to read the Agency’s mind. In other proceedings, EPA has time and again stated that although “[s]ome of the ele­ ments of the [SIP-submission process] are relatively straightforward, others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS.” 76 (2011). As an example of the latter, the Agency has remarked that the Good Neighbor Provision “contains numerous terms that require substan­ tial rulemaking by EPA in order to determine such basic points as what constitutes significant contribution,” citing CAIR. n. 6. In fact, EPA repeated those precise statements not once, not twice, but 30 times following promulgation of the Transport Rule.4 Notwithstanding what parties may have argued in other litigation many years ago, it is beyond responsible debate that the States cannot possibly design FIP-proof SIPs without knowing the EPA-prescribed targets at which they must aim. EPA insists that it enjoys significant discretion—indeed, that it can consider essentially what­ ever factors it wishes—to determine what constitutes a “significan[t]” contribution to interstate pollution; and it simultaneously asserts that the States ought to know what quantities it will choose. The Agency—and the —————— 4 In addition to the citations in text, see and n. 7 ; and n. 7; and n. 7; and n. 9; and n. 7; and n. 7; and n. 6; 912, and n. 7; and n. 7; and n. 8; and n. 7; and n. 8; and n. 7; and n. 7; at 84, and n. 7; at 543, and n. 4; at 536, and n. 7; at 253, and n. 8; and n. 7; and n. 6; and n. 4; and n. 5; and n. 7; and n. 4; 16, and n. 7; 76 55, and n. 7 (2011); 5852, and n. 7; 0943, and n. 6; and n. 3. Cite as: 572 U. S. (2014) 19 SCALIA, J., dissenting majority—cannot have it both ways. C. Abuse of Discretion The majority attempts to place the blame for hollowing out the core of the Clean Air Act on “the Act’s plain text.” Ante, at 16. The first textual element to which it refers is requirement that after EPA has disapproved a SIP, it “shall promulgate a [FIP] at any time within 2 years.” That is to say, the Agency has discretion whether to act at once or to defer action until some later point during the 2-year period. But it also has discretion to work within the prescribed timetable to respect the right­ ful role of States in the statutory scheme by delaying the issuance or enforcement of FIPs pending the resubmission and approval of SIPs—as EPA’s conduct surrounding CAIR clearly demonstrates. And all of this assumes that the Agency insists on disapproving SIPs before promulgat­ ing the applicable good-neighbor standards—though in fact EPA has discretion to publicize those metrics before the window to submit SIPs closes in the first place. The majority states that the Agency “retained discretion to alter its course” from the one pursued in the NOX SIP Call and CAIR, ante, at 17, but that misses the point. The point is that EPA has discretion to arrange things so as to preserve the Clean Air Act’s core principle of state primacy—and that it is an abuse of discretion to refuse to do so. See see also 5 U.S. C. (identical text in the Administrative Procedure Act). Indeed, the proviso in that the Agency’s au­ thority to promulgate a FIP within the 2-year period terminates if “the State corrects the deficiency, and [EPA] approves the [SIP] or [SIP] revision” explicitly contem­ plates just such an arrangement.5 —————— 5 I am unimpressed, by the way, with the explanation that the major- ity accepts for EPA’s about-face: that the D. C. Circuit admonished it to “act with dispatch in amending or replacing CAIR.” Ante, at 18 ). Courts of Appeals’ raised eyebrows and wagging fingers are not law, least so when they urge an agency to take ultra vires action. Nor can the encouragement to act illegally qualify as a “good reaso[n]” for an agency’s alteration of course under Cite as: 572 U. S. (2014) 21 SCALIA, J., dissenting distinguishable from determining the particular mix of controls among individual sources to attain those stand­ ards, which the caselaw identifies as a State responsibil­ ity.” The negative implication suggested by a statute’s failure to use consistent terminology can be a helpful guide to determining meaning, especially when all the provisions in question were enacted at the same time (which is not the case here). But because that interpretive canon, like others, is just one clue to aid construction, it can be over­ come by more powerful indications of meaning elsewhere in the statute. It is, we have said, “no more than a rule of thumb that can tip the scales when a statute could be read in multiple ways.” Sebelius v. Auburn Regional Medical Center, 568 U. S. (2013) (slip op., at 9) (internal quotation marks and brackets omitted). The Clean Air Act simply cannot be read to make EPA the primary regu­ lator in this context. The negative-implication canon is easily overcome by the statute’s state-respecting struc­ ture—not to mention the sheer impossibility of submitting a sensible SIP without EPA guidance. Negative implica­ tion is the tiniest mousehole in which the majority discov­ ers the elephant of federal control. * * * Addressing the problem of interstate pollution in the manner Congress has prescribed—or in any other manner, for that matter—is a complex and difficult enterprise. But “[r]egardless of how serious the problem an administrative agency seeks to address, it may not exercise its author­ ity ‘in a manner that is inconsistent with the administra­ tive structure that Congress enacted into law.’ ” Brown & ). The major­ ity’s approval of EPA’s approach to the Clean Air Act violates this foundational principle of popular government. I dissent

Justice Kennedy

majority

FCC v. Fox Television Stations, Inc.

2012-06-21

https://www.courtlistener.com/opinion/802792/fcc-v-fox-television-stations-inc/

https://www.courtlistener.com/api/rest/v3/clusters/802792/

2011-072

In FCC v. Fox Television Stations, Inc., 556 U.S. 502, 529 (2009) (Fox I), the Court held that the Federal Com­ munication Commission’s decision to modify its indecency enforcement regime to regulate so-called fleeting exple­ tives was neither arbitrary nor capricious. The Court then declined to address the constitutionality of the policy, however, because the United States Court of Appeals for the Second Circuit had yet to do so. On remand, the Court of Appeals found the policy was vague and, as a result, unconstitutional. 613 F.3d 317 (2010). The case now returns to this Court for decision upon the constitutional question. I In Fox I, the Court described both the regulatory framework through which the Commission regulates broadcast indecency and the long procedural history of 2 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court this case. The Court need not repeat all that history, but some preliminary discussion is necessary to understand the constitutional issue the case now presents. A Title 18 U.S. C. §1464 provides that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined . . . or imprisoned not more than two years, or both.” The Federal Communi­ cations Commission (Commission) has been instructed by Congress to enforce §1464 between the hours of 6 a.m. and 10 p.m., see Public Telecommunications Act of 1992, §15(a), 106 Stat. 954, note following 47 U.S. C. §303, p. 113 (Broadcasting of Indecent Programming). And the Commission has applied its regulations to radio and tele­ vision broadcasters alike, see Fox I, supra, at 505–506; see also 47 CFR §73.3999 (2010) (Commission regulation prohibiting the broadcast of any obscene material or any indecent material between 6 a.m. and 10 p.m.). Although the Commission has had the authority to regulate inde­ cent broadcasts under §1464 since 1948 (and its prede­ cessor commission, the Federal Radio Commission, since 1927), it did not begin to enforce §1464 until the 1970’s. See Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Com. L. J. 195, 198 (2010). This Court first reviewed the Commission’s indecency policy in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In Pacifica, the Commission determined that George Carlin’s “Filthy Words” monologue was indecent. It con­ tained “ ‘language that describes, in terms patently offen­ sive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.’ ” Id., at 732 (quoting 56 F. C. C. 2d 94, 98 (1975)). This Court upheld Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court the Commission’s ruling. The broadcaster’s statutory challenge was rejected. The Court held the Commission was not engaged in impermissible censorship within the meaning of 47 U.S. C. §326 (1976 ed.), see 438 U. S., at 735–739, and that §1464’s definition of indecency was not confined to speech with an appeal to the prurient interest, see id., at 738–741. Finding no First Amendment viola­ tion, the decision explained the constitutional standard under which regulations of broadcasters are assessed. It observed that “broadcast media have established a uniquely pervasive presence in the lives of all Americans,” id., at 748, and that “broadcasting is uniquely accessible to chil­ dren, even those too young to read,” id., at 749. In light of these considerations, “broadcasting . . . has received the most limited First Amendment protection.” Id., at 748. Under this standard the Commission’s order passed con­ stitutional scrutiny. The Court did note the narrowness of its holding, explaining that it was not deciding whether “an occasional expletive . . . would justify any sanction.” Id., at 750; see also id., at 760–761 (Powell, J., concur- ring in part and concurring in judgment) (“[C]ertainly the Court’s holding . . . does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here”). From 1978 to 1987, the Commission did not go beyond the narrow circumstances of Pacifica and brought no indecency enforcement actions. See In re Infinity Broad- casting Corp., 3 FCC Rcd. 930 (1987); see also In re Appli- cation of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254 (1978) (Commission declaring it “intend[s] strictly to observe the narrowness of the Pacifica holding”). Recog­ nizing that Pacifica provided “no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station,” the Commission distinguished between 4 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court the “repetitive occurrence of the ‘indecent’ words” (such as in the Carlin monologue) and an “isolated” or “occasional” expletive, that would not necessarily be actionable. 69 F. C. C. 2d, at 1254. In 1987, the Commission determined it was applying the Pacifica standard in too narrow a way. It stated that in later cases its definition of indecent language would “ap­ propriately includ[e] a broader range of material than the seven specific words at issue in [the Carlin monologue].” In re Pacifica Foundation Inc., 2 FCC Rcd. 2698, 2699. Thus, the Commission indicated it would use the “generic definition of indecency” articulated in its 1975 Pacifica order, Infinity Order, 3 FCC Rcd., at 930, and assess the full context of allegedly indecent broadcasts rather than limiting its regulation to a “comprehensive index . . . of indecent words or pictorial depictions,” id., at 932. Even under this context based approach, the Commis­ sion continued to note the important difference between isolated and repeated broadcasts of indecent material. See ibid. (considering variables in determining whether mate­ rial is patently offensive including “whether allegedly offensive material is isolated or fleeting”). In the context of expletives, the Commission determined “deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” Pacifica Order, 2 FCC Rcd., at 2699. For speech “involving the description or depiction of sexual or excretory functions . . . [t]he mere fact that specific words or phrases are not repeated does not man­ date a finding that material that is otherwise patently offensive . . . is not indecent.” Ibid. In 2001, the Commission issued a policy statement intended “to provide guidance to the broadcast industry regarding [its] caselaw interpreting 18 U.S. C. §1464 and [its] enforcement policies with respect to broadcast inde­ cency.” In re Industry Guidance on Commission’s Case Law Interpreting 18 U.S. C. §1464 and Enforcement Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999. In that document the Commission restated that for material to be indecent it must depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium. Id., at 8002. Describing the framework of what it considered patently offensive, the Commission explained that three factors had proved significant: “(1) [T]he explicitness or graphic nature of the de­ scription or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or re­ peats at length descriptions of sexual or excretory or­ gans or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” Id., at 8003 (emphasis deleted). As regards the second of these factors, the Commission explained that “[r]epetition of and persistent focus on sexual or excretory material have been cited consistently as factors that exacerbate the potential offensiveness of broadcasts. In contrast, where sexual or excretory refer­ ences have been made once or have been passing or fleet­ ing in nature, this characteristic has tended to weigh against a finding of indecency.” Id., at 8008. The Com­ mission then gave examples of material that was not found indecent because it was fleeting and isolated, id., at 8008–8009 (citing, e.g., L. M. Communications of South Carolina, Inc. (WYBB(FM)), 7 FCC Rcd. 1595 (MMB 1992) (finding “a fleeting and isolated utterance” in the context of live and spontaneous programming not actionable)), and contrasted it with fleeting references that were found patently offensive in light of other factors, 16 FCC Rcd., at 8009 (citing, e.g., Tempe Radio, Inc. (KUPD–FM), 12 FCC Rcd. 21828 (MMB 1997) (finding fleeting language that clearly refers to sexual activity with a child to be patently 6 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court offensive)). B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f *** ‘em.” 613 F. 3d, at 323. Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f ***ing simple.” Ibid. The third in­ cident involved an episode of NYPD Blue, a regular tele­ vision show broadcast by respondent ABC Television Network. The episode broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boy­ friend’s son entered the bathroom. A moment of awk­ wardness followed. 404 Fed. Appx. 530, 533–534 (CA2 2011). The Commission received indecency complaints about all three broadcasts. See Fox I, 556 U. S., at 510; 404 Fed. Appx., at 534. After these incidents, but before the Commission issued Notices of Apparent Liability to Fox and ABC, the Com­ mission issued a decision sanctioning NBC for a comment made by the singer Bono during the 2003 Golden Globe Awards. Upon winning the award for Best Original Song, Bono exclaimed: “ ‘This is really, really, f ***ing brilliant. Really, really great.’ ” In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court (2004) (Golden Globes Order). Reversing a decision by its enforcement bureau, the Commission found the use of the F-word actionably indecent. Id., at 4975–4976. The Commission held that the word was “one of the most vul­ gar, graphic and explicit descriptions of sexual activity in the English language,” and thus found “any use of that word or a variation, in any context, inherently has a sex­ ual connotation.” Id., at 4978–4979. Turning to the iso­ lated nature of the expletive, the Commission reversed prior rulings that had found fleeting expletives not indecent. The Commission held “the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.” Id., at 4980; see also id., at 4982 (“Just as the Court [in Pacifica] held that . . . the George Carlin routine ‘could have enlarged a child’s vocabulary in an instant,’ we believe that even isolated broadcasts of the ‘F-Word’ in situations such as that here could do so as well”). C Even though the incidents at issue in these cases took place before the Golden Globes Order, the Commission applied its new policy regarding fleeting expletives and fleeting nudity. It found the broadcasts by respondents Fox and ABC to be in violation of this standard. 1 As to Fox, the Commission found the two Billboard Awards broadcasts indecent in In re Complaints Regard- ing Various Television Broadcasts Between February 2, 2002, and March 8, 2005, 21 FCC Rcd. 2664 (2006). Nu­ merous parties petitioned for a review of the order in the United States Court of Appeals for the Second Circuit. The Court of Appeals granted the Commission’s request for a voluntary remand so that it could respond to the 8 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court parties’ objections. Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 453 (2007). In its remand order, the Com­ mission applied its tripartite definition of patently offen­ sive material from its 2001 Order and found that both broadcasts fell well within its scope. See In re Complaints Regarding Various Television Broadcasts Between Febru- ary 2, 2002, and March 8, 2005, 21 FCC Rcd. 13299 (2006) (Remand Order); see also Fox I, supra, at 511–513 (dis­ cussing in detail the Commission’s findings). As pertains to the constitutional issue in these cases, the Commission noted that under the policy clarified in the Golden Globes Order, “categorically requiring repeated use of expletives in order to find material indecent is inconsistent with our general approach to indecency enforcement.” Remand Order, 21 FCC Rcd., at 13308; see also id., at 13325 (“[U]nder our Golden Globe precedent, the fact that Cher used the ‘F-word’ once does not remove her comment from the realm of actionable indecency”). Though the Commis­ sion deemed Fox should have known Nicole Richie’s com­ ments were actionably indecent even prior to the Golden Globes Order, 21 FCC Rcd., at 13307, it declined to pro­ pose a forfeiture in light of the limited nature of the Sec­ ond Circuit’s remand. Id., at 13321. The Commission acknowledged that “it was not apparent that Fox could be penalized for Cher’s comment at the time it was broad­ cast.” And so, as in the Golden Globes case it imposed no penalty for that broadcast. Id., at 13324, 13326. Fox and various intervenors returned to the United States Court of Appeals for the Second Circuit, raising ad­ ministrative, statutory, and constitutional challenges to the Commission’s indecency regulations. See Fox Televi- sion Stations, Inc. v. FCC, 489 F.3d 444. In a 2-to-1 deci­ sion, with Judge Leval dissenting, the Court of Appeals found the Remand Order arbitrary and capricious because “the FCC has made a 180-degree turn regarding its treat­ ment of ‘fleeting expletives’ without providing a reasoned Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court explanation justifying the about-face.” 489 F. 3d, at 455. While noting its skepticism as to whether the Commis­ sion’s fleeting expletive regime “would pass constitutional muster,” the Court of Appeals found it unnecessary to ad­ dress the issue. Id., at 462. The case came here on certiorari. Citing the Adminis­ trative Procedure Act, 5 U.S. C. §551 et seq., this Court noted that the Judiciary may set aside agency action that is arbitrary or capricious. In the context of a change in policy (such as the Commission’s determination that fleet­ ing expletives could be indecent), the decision held an agency, in the ordinary course, should acknowledge that it is in fact changing its position and “show that there are good reasons for the new policy.” Fox I, 553 U. S., at 515. There is no need, however, for an agency to provide de­ tailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one. Ibid. Judged under this standard, the Court in Fox I found the Commission’s new indecency enforcement policy nei­ ther arbitrary nor capricious. Id., at 517. The Court noted the Commission had acknowledged breaking new ground in ruling that fleeting and nonliteral expletives could be indecent under the controlling standards; the Court con­ cluded the agency’s reasons for expanding the scope of its enforcement activity were rational. Ibid. Not only was it “certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offen­ sive words,” ibid., but the Court agreed that the Commis­ sion’s decision to “look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach [approved] . . . in Pacifica.” Ibid. Given that “[e]ven isolated utterances can . . . constitute harmful ‘first blow[s]’ to children,” the Court held that the Commission could “decide it needed to step away from its old regime where nonrepetitive use of an expletive 10 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court was per se nonactionable.” Id., at 518. Having found the agency’s action to be neither arbitrary nor capricious, the Court remanded for the Court of Appeals to address re­ spondents’ First Amendment challenges. Id., at 529–530. On remand from Fox I, the Court of Appeals held the Commission’s indecency policy unconstitutionally vague and invalidated it in its entirety. 613 F. 3d, at 327. The Court of Appeals found the policy, as expressed in the 2001 Guidance and subsequent Commission decisions, failed to give broadcasters sufficient notice of what would be considered indecent. Surveying a number of Commis­ sion adjudications, the court found the Commission was inconsistent as to which words it deemed patently offen­ sive. See id., at 330. It also determined that the Com­ mission’s presumptive prohibition on the F-word and the S-word was plagued by vagueness because the Commission had on occasion found the fleeting use of those words not indecent provided they occurred during a bona fide news interview or were “demonstrably essential to the nature of an artistic or educational work.” Id., at 331 (internal quotation marks omitted). The Commission’s application of these exceptions, according to the Court of Appeals, left broadcasters guessing whether an expletive would be deemed artistically integral to a program or whether a particular broadcast would be considered a bona fide news interview. The Court of Appeals found the vagueness in­ herent in the policy had forced broadcasters to “choose between not airing . . . controversial programs [or] risking massive fines or possibly even loss of their licenses.” Id., at 334. And the court found that there was “ample evi­ dence in the record” that this harsh choice had led to a chill of protected speech. Ibid. 2 The procedural history regarding ABC is more brief. On February 19, 2008, the Commission issued a forfeiture Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court order finding the display of the woman’s nude buttocks in NYPD Blue was actionably indecent. See In re Com- plaints Against Various Television Licensees Concerning Their February 24, 2003 Broadcast of the Program “NYPD Blue”, 23 FCC Rcd. 3147 (2008). The Commission deter­ mined that, regardless of medical definitions, displays of buttocks fell within the category of displays of sexual or excretory organs because the depiction was “widely associ­ ated with sexual arousal and closely associated by most people with excretory activities.” Id., at 3150. The scene was deemed patently offensive as measured by contempo­ rary community standards, ibid.; and the Commission determined that “[t]he female actor’s nudity is presented in a manner that clearly panders to and titillates the audience,” id., at 3153. Unlike in the Fox case, the Com­ mission imposed a forfeiture of $27,500 on each of the 45 ABC-affiliated stations that aired the indecent episode. In a summary order the United States Court of Appeals for the Second Circuit vacated the forfeiture order, determin­ ing that it was bound by its Fox decision striking down the entirety of the Commission’s indecency policy. See 404 Fed. Appx., at 533. The Government sought review of both judgments, see Brief for Petitioners 1, and this Court granted certiorari, 564 U. S. ____ (2011). These are the cases before us. II A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its appli­ cation, violates the first essential of due process of law”); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) 12 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court (“Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be in­ formed as to what the State commands or forbids’ ” (quot­ ing Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U.S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory en­ forcement.” Ibid. As this Court has explained, a regula­ tion is not vague because it may at times be difficult to prove an incriminating fact but rather because it is un­ clear as to what fact must be proved. See id., at 306. Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina­ tory way. See Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972). When speech is involved, rigorous adher­ ence to those requirements is necessary to ensure that ambiguity does not chill protected speech. These concerns are implicated here because, at the out­ set, the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed. And leaving aside any concerns about facial invalidity, they contend that the lengthy procedural history set forth above shows that the broadcasters did not have fair notice of what was forbidden. Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court was “ ‘whether the material dwell[ed] on or repeat[ed] at length’ ” the offending description or depiction. 613 F. 3d, at 322. In the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. Fox I, 556 U. S., at 512. In the challenged orders now under review the Commission applied the new principle promul­ gated in the Golden Globes Order and determined fleeting expletives and a brief moment of indecency were action­ ably indecent. This regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be action­ ably indecent; yet Fox and ABC were found to be in viola­ tion. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of §1464 as interpreted and enforced by the agency “fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.” Williams, supra, at 304. This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon “sen­ sitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U.S. 360, 372 (1964); see also Reno v. Amer- ican Civil Liberties Union, 521 U.S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its ob­ vious chilling effect”). The Government raises two arguments in response, but neither is persuasive. As for the two fleeting expletives, the Government concedes that “Fox did not have reason­ able notice at the time of the broadcasts that the Com­ mission would consider non-repeated expletives indecent.” Brief for Petitioners 28, n. 3. The Government argues, nonetheless, that Fox “cannot establish unconstitutional 14 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court vagueness on that basis . . . because the Commission did not impose a sanction where Fox lacked such notice.” Ibid. As the Court observed when the case was here three Terms ago, it is true that the Commission declined to impose any forfeiture on Fox, see 556 U. S., at 513, and in its order the Commission claimed that it would not con­ sider the indecent broadcasts either when considering whether to renew stations’ licenses or “in any other con­ text,” 21 FCC Rcd., at 13321, 13326. This “policy of for­ bearance,” as the Government calls it, does not suffice to make the issue moot. Brief for Petitioners 31. Though the Commission claims it will not consider the prior indecent broadcasts “in any context,” it has the statutory power to take into account “any history of prior offenses” when setting the level of a forfeiture penalty. See 47 U.S. C. §503(b)(2)(E). Just as in the First Amendment context, the due process protection against vague regulations “does not leave [regulated parties] . . . at the mercy of noblesse oblige.” United States v. Stevens, 559 U.S. ___, ___ (2010) (slip op., at 18). Given that the Commission found it was “not inequitable to hold Fox responsible for [the 2003 broadcast],” 21 FCC Rcd., at 13314, and that it has the statutory authority to use its finding to increase any fu­ ture penalties, the Government’s assurance it will elect not to do so is insufficient to remedy the constitutional violation. In addition, when combined with the legal consequence described above, reputational injury provides further rea­ son for granting relief to Fox. Cf. Paul v. Davis, 424 U.S. 693, 708–709 (1976) (explaining that an “alteration of legal status . . . combined with the injury resulting from the defamation” justifies the invocation of procedural safeguards). As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputa­ tion with viewers and advertisers.” Brief for Respondent CBS Television Network Affiliates Assn. et al. 17. This Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the inde­ cent material broadcast by Fox, see, e.g., 21 FCC Rcd., at 13310–13311, ¶30 (noting the “explicit, graphic, vulgar, and shocking nature of Ms. Richie’s comments”), and Fox’s efforts to protect children from being exposed to it, see id., at 13311, ¶33 (finding Fox had failed to exercise “ ‘rea­ sonable judgment, responsibility, and sensitivity to the public’s needs and tastes to avoid [a] patently offensive broadcas[t]’ ”). Commission sanctions on broadcasters for indecent material are widely publicized. See, e.g., F. C. C. Fines Fox, N. Y. Times, Feb. 26, 2008, p. E2; F. C. C. Plans Record Fine for CBS, Washington Post, Sept. 24, 2004, p. E1. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account. With respect to ABC, the Government with good reason does not argue no sanction was imposed. The fine against ABC and its network affiliates for the seven seconds of nudity was nearly $1.24 million. See Brief for Respondent ABC, Inc., et al. 7 (hereinafter ABC Brief). The Govern­ ment argues instead that ABC had notice that the scene in NYPD Blue would be considered indecent in light of a 1960 decision where the Commission declared that the “televising of nudes might well raise a serious question of programming contrary to 18 U.S. C. §1464.” Brief for Petitioners 32 (quoting Enbanc Programming Inquiry, 44 FCC 2303, 2307 (internal quotation marks omitted)). This argument does not prevail. An isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly im­ permissible speech. The Commission, furthermore, had released decisions before sanctioning ABC that declined to find isolated and brief moments of nudity actionably inde­ 16 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court cent. See, e.g., In re Application of WGBH, 69 F. C. C. 2d, at 1251, 1255 (declining to find broadcasts contain- ing nudity to be indecent and emphasizing the difference between repeated and isolated expletives); In re WPBN/ WTOM License Subsidiary, Inc., 15 FCC Rcd. 1838, 1840 (2000) (finding full frontal nudity in Schind- ler’s List not indecent). This is not to say, of course, that a graphic scene from Schindler’s List involving nude concentration camp prisoners is the same as the shower scene from NYPD Blue. It does show, however, that the Government can point to nothing that would have given ABC affirmative notice that its broadcast would be consid­ ered actionably indecent. It is likewise not sufficient for the Commission to assert, as it did in its order, that though “the depiction [of nudity] here is not as lengthy or repeated” as in some cases, the shower scene nonetheless “does contain more shots or lengthier depictions of nudity” than in other broadcasts found not indecent. 23 FCC Rcd., at 3153. This broad language fails to demonstrate that ABC had fair notice that its broadcast could be found indecent. In fact, a Commission ruling prior to the airing of the NYPD Blue episode had deemed 30 seconds of nude buttocks “very brief ” and not actionably indecent in the context of the broadcast. See Letter from Norman Gold­ stein to David Molina, FCC File No. 97110028 (May 26, 1999), in App. to Brief for Respondent ABC Television Affiliates Assn. et al. 1a; see also Letter from Edythe Wise to Susan Cavin, FCC File No. 91100738 (Aug. 13, 1992), id., at 18a, 19a. In light of this record of agency decisions, and the absence of any notice in the 2001 Guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned. The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Cite as: 567 U. S. ____ (2012) 17 Opinion of the Court Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside. III It is necessary to make three observations about the scope of this decision. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implica­ tions of the Commission’s indecency policy. It is argued that this Court’s ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see 438 U.S. 726) should be overruled be­ cause the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers. See, e.g., ABC Brief 48–57; Brief for Respondent Fox Television Stations, Inc., et al. 15–26. The Government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume that the Government has its own interest in setting certain standards. See Brief for Peti­ tioners 40–53. These arguments need not be addressed here. In light of the Court’s holding that the Commission’s policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time. This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub­ sequent adjudications. The Court adheres to its normal practice of declining to decide cases not before it. See, e.g., Sweatt v. Painter, 339 U.S. 629, 631 (1950) (“Broader issues have been urged for our consideration, but we 18 FCC v. FOX TELEVISION STATIONS, INC. Opinion of the Court adhere to the principle of deciding constitutional ques­ tions only in the context of the particular case before the Court”). Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application. * * * The judgments of the United States Court of Appeals for the Second Circuit are vacated, and the cases are re­ manded for further proceedings consistent with the prin­ ciples set forth in this opinion. It is so ordered. JUSTICE SOTOMAYOR took no part in the consideration or decision of these cases. Cite as: 567 U. S. ____ (2012) 1 GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 10–1293 _________________ FEDERAL COMMUNICATIONS COMMISSION, ET AL., PETITIONERS v. FOX TELEVISION STATIONS, INC., ET AL. FEDERAL COMMUNICATIONS COMMISSION, ET AL., PETITIONERS v. ABC, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 21, 2012] JUSTICE GINSBURG, concurring in the judgment.

n 529 (2009) (Fox ), the Court held that the Federal Com­ munication Commission’s decision to modify its indecency enforcement regime to regulate so-called fleeting exple­ tives was neither arbitrary nor capricious. The Court then declined to address the constitutionality of the policy, however, because the United States Court of Appeals for the Second Circuit had yet to do so. On remand, the Court of Appeals found the policy was vague and, as a result, unconstitutional. The case now returns to this Court for decision upon the constitutional question. n Fox the Court described both the regulatory framework through which the Commission regulates broadcast indecency and the long procedural history of 2 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court this case. The Court need not repeat all that history, but some preliminary discussion is necessary to understand the constitutional issue the case now presents. A Title 18 U.S. C. provides that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined or imprisoned not more than two years, or both.” The Federal Communi­ cations Commission (Commission) has been instructed by Congress to enforce between the hours of 6 a.m. and 10 p.m., see Public Telecommunications Act of 1992, note following 47 U.S. C. p. 113 (Broadcasting of ndecent Programming). And the Commission has applied its regulations to radio and tele­ vision broadcasters alike, see Fox at 505–506; see also (Commission regulation prohibiting the broadcast of any obscene material or any indecent material between 6 a.m. and 10 p.m.). Although the Commission has had the authority to regulate inde­ cent broadcasts under since 1948 (and its prede­ cessor commission, the Federal Radio Commission, since 1927), it did not begin to enforce until the 1970’s. See Campbell, Pacifica Reconsidered: mplications for the Current Controversy over Broadcast ndecency, 63 Fed. Com. L. J. 195, 198 This Court first reviewed the Commission’s indecency policy in n Pacifica, the Commission determined that George Carlin’s “Filthy Words” monologue was indecent. t con­ tained “ ‘language that describes, in terms patently offen­ sive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.’ ” d., (quoting 56 F. C. C. 2d 94, 98 (1975)). This Court upheld Cite as: 567 U. S. (2012) 3 Opinion of the Court the Commission’s ruling. The broadcaster’s statutory challenge was rejected. The Court held the Commission was not engaged in impermissible censorship within the meaning of 47 U.S. C. (1976 ed.), see 438 U. S., at 735–739, and that ’s definition of indecency was not confined to speech with an appeal to the prurient interest, see at 738–741. Finding no First Amendment viola­ tion, the decision explained the constitutional standard under which regulations of broadcasters are assessed. t observed that “broadcast media have established a uniquely pervasive presence in the lives of all Americans,” at 748, and that “broadcasting is uniquely accessible to chil­ dren, even those too young to read,” n light of these considerations, “broadcasting has received the most limited First Amendment protection.” d., Under this standard the Commission’s order passed con­ stitutional scrutiny. The Court did note the narrowness of its holding, explaining that it was not deciding whether “an occasional expletive would justify any sanction.” d., ; see also at 760–761 (Powell, J., concur- ring in part and concurring in judgment) (“[C]ertainly the Court’s holding does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here”). From 1978 to 1987, the Commission did not go beyond the narrow circumstances of Pacifica and brought no indecency enforcement actions. See n re nfinity Broad- casting Corp., 3 FCC Rcd. 930 (1987); see also n re Appli- cation of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254 (Commission declaring it “intend[s] strictly to observe the narrowness of the Pacifica holding”). Recog­ nizing that Pacifica provided “no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station,” the Commission distinguished between 4 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court the “repetitive occurrence of the ‘indecent’ words” (such as in the Carlin monologue) and an “isolated” or “occasional” expletive, that would not necessarily be actionable. 69 F. C. C. 2d, at 1254. n 1987, the Commission determined it was applying the Pacifica standard in too narrow a way. t stated that in later cases its definition of indecent language would “ap­ propriately includ[e] a broader range of material than the seven specific words at issue in [the Carlin monologue].” n re Pacifica Foundation nc., 2 FCC Rcd. 2698, 2699. Thus, the Commission indicated it would use the “generic definition of indecency” articulated in its 1975 Pacifica order, nfinity Order, 3 FCC Rcd., at 930, and assess the full context of allegedly indecent broadcasts rather than limiting its regulation to a “comprehensive index of indecent words or pictorial depictions,” Even under this context based approach, the Commis­ sion continued to note the important difference between isolated and repeated broadcasts of indecent material. See (considering variables in determining whether mate­ rial is patently offensive including “whether allegedly offensive material is isolated or fleeting”). n the context of expletives, the Commission determined “deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” Pacifica Order, 2 FCC Rcd., at 2699. For speech “involving the description or depiction of sexual or excretory functions [t]he mere fact that specific words or phrases are not repeated does not man­ date a finding that material that is otherwise patently offensive is not indecent.” bid. n 2001, the Commission issued a policy statement intended “to provide guidance to the broadcast industry regarding [its] caselaw interpreting 18 U.S. C. and [its] enforcement policies with respect to broadcast inde­ cency.” n re ndustry Guidance on Commission’s Case Law nterpreting 18 U.S. C. and Enforcement Cite as: 567 U. S. (2012) 5 Opinion of the Court Policies Regarding Broadcast ndecency, 16 FCC Rcd. 7999. n that document the Commission restated that for material to be indecent it must depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium. d., Describing the framework of what it considered patently offensive, the Commission explained that three factors had proved significant: “(1) [T]he explicitness or graphic nature of the de­ scription or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or re­ peats at length descriptions of sexual or excretory or­ gans or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” d., As regards the second of these factors, the Commission explained that “[r]epetition of and persistent focus on sexual or excretory material have been cited consistently as factors that exacerbate the potential offensiveness of broadcasts. n contrast, where sexual or excretory refer­ ences have been made once or have been passing or fleet­ ing in nature, this characteristic has tended to weigh against a finding of indecency.” d., The Com­ mission then gave examples of material that was not found indecent because it was fleeting and isolated, at 8008–8009 (citing, e.g., L. M. Communications of South Carolina, nc. (WYBB(FM)), 7 FCC Rcd. 1595 (MMB 1992) (finding “a fleeting and isolated utterance” in the context of live and spontaneous programming not actionable)), and contrasted it with fleeting references that were found patently offensive in light of other factors, 16 FCC Rcd., at 8009 (citing, e.g., Tempe Radio, nc. (KUPD–FM), 12 FCC Rcd. 21828 (finding fleeting language that clearly refers to sexual activity with a child to be patently 6 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court offensive)). B t was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, nc., the singer Cher exclaimed during an unscripted acceptance speech: “’ve also had my critics for the last 40 years saying that was on my way out every year. Right. So f *** ‘em.” 613 F. 3d, at 323. Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? t’s not so f ***ing simple.” bid. The third in­ cident involved an episode of NYPD Blue, a regular tele­ vision show broadcast by respondent ABC Television Network. The episode broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boy­ friend’s son entered the bathroom. A moment of awk­ wardness followed. 533–534 (CA2 2011). The Commission received indecency complaints about all three broadcasts. See Fox ; After these incidents, but before the Commission issued Notices of Apparent Liability to Fox and ABC, the Com­ mission issued a decision sanctioning NBC for a comment made by the singer Bono during the 2003 Golden Globe Awards. Upon winning the award for Best Original Song, Bono exclaimed: “ ‘This is really, really, f ***ing brilliant. Really, really great.’ ” n re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 Cite as: 567 U. S. (2012) 7 Opinion of the Court (2004) (Golden Globes Order). Reversing a decision by its enforcement bureau, the Commission found the use of the F-word actionably indecent. d., at 4975–4976. The Commission held that the word was “one of the most vul­ gar, graphic and explicit descriptions of sexual activity in the English language,” and thus found “any use of that word or a variation, in any context, inherently has a sex­ ual connotation.” d., at 4978–4979. Turning to the iso­ lated nature of the expletive, the Commission reversed prior rulings that had found fleeting expletives not indecent. The Commission held “the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.” d., ; see also (“Just as the Court [in Pacifica] held that the George Carlin routine ‘could have enlarged a child’s vocabulary in an instant,’ we believe that even isolated broadcasts of the ‘F-Word’ in situations such as that here could do so as well”). C Even though the incidents at issue in these cases took place before the Golden Globes Order, the Commission applied its new policy regarding fleeting expletives and fleeting nudity. t found the broadcasts by respondents Fox and ABC to be in violation of this standard. 1 As to Fox, the Commission found the two Billboard Awards broadcasts indecent in n re Complaints Regard- ing Various Television Broadcasts Between February 2, 2002, and March 8, 2005, 21 FCC Rcd. 2664 (2006). Nu­ merous parties petitioned for a review of the order in the United States Court of Appeals for the Second Circuit. The Court of Appeals granted the Commission’s request for a voluntary remand so that it could respond to the 8 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court parties’ objections. Fox Television Stations, nc. v. FCC, n its remand order, the Com­ mission applied its tripartite definition of patently offen­ sive material from its 2001 Order and found that both broadcasts fell well within its scope. See n re Complaints Regarding Various Television Broadcasts Between Febru- ary 2, 2002, and March 8, 2005, 21 FCC Rcd. 13299 (2006) (Remand Order); see also Fox at 511–513 (dis­ cussing in detail the Commission’s findings). As pertains to the constitutional issue in these cases, the Commission noted that under the policy clarified in the Golden Globes Order, “categorically requiring repeated use of expletives in order to find material indecent is inconsistent with our general approach to indecency enforcement.” Remand Order, 21 FCC Rcd., at 13308; see also (“[U]nder our Golden Globe precedent, the fact that Cher used the ‘F-word’ once does not remove her comment from the realm of actionable indecency”). Though the Commis­ sion deemed Fox should have known Nicole Richie’s com­ ments were actionably indecent even prior to the Golden Globes Order, 21 FCC Rcd., at 13307, it declined to pro­ pose a forfeiture in light of the limited nature of the Sec­ ond Circuit’s remand. d., The Commission acknowledged that “it was not apparent that Fox could be penalized for Cher’s comment at the time it was broad­ cast.” And so, as in the Golden Globes case it imposed no penalty for that broadcast. d., Fox and various intervenors returned to the United States Court of Appeals for the Second Circuit, raising ad­ ministrative, statutory, and constitutional challenges to the Commission’s indecency regulations. See Fox Televi- sion Stations, nc. v. FCC, n a 2-to-1 deci­ sion, with Judge Leval dissenting, the Court of Appeals found the Remand Order arbitrary and capricious because “the FCC has made a 180-degree turn regarding its treat­ ment of ‘fleeting expletives’ without providing a reasoned Cite as: 567 U. S. (2012) 9 Opinion of the Court explanation justifying the about-face.” While noting its skepticism as to whether the Commis­ sion’s fleeting expletive regime “would pass constitutional muster,” the Court of Appeals found it unnecessary to ad­ dress the issue. d., The case came here on certiorari. Citing the Adminis­ trative Procedure Act, 5 U.S. C. et seq., this Court noted that the Judiciary may set aside agency action that is arbitrary or capricious. n the context of a change in policy (such as the Commission’s determination that fleet­ ing expletives could be indecent), the decision held an agency, in the ordinary course, should acknowledge that it is in fact changing its position and “show that there are good reasons for the new policy.” Fox There is no need, however, for an agency to provide de­ tailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one. bid. Judged under this standard, the Court in Fox found the Commission’s new indecency enforcement policy nei­ ther arbitrary nor capricious. d., The Court noted the Commission had acknowledged breaking new ground in ruling that fleeting and nonliteral expletives could be indecent under the controlling standards; the Court con­ cluded the agency’s reasons for expanding the scope of its enforcement activity were rational. bid. Not only was it “certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offen­ sive words,” ib but the Court agreed that the Commis­ sion’s decision to “look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach [approved] in Pacifica.” bid. Given that “[e]ven isolated utterances can constitute harmful ‘first blow[s]’ to children,” the Court held that the Commission could “decide it needed to step away from its old regime where nonrepetitive use of an expletive 10 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court was per se nonactionable.” d., Having found the agency’s action to be neither arbitrary nor capricious, the Court remanded for the Court of Appeals to address re­ spondents’ First Amendment challenges. d., at 529–530. On remand from Fox the Court of Appeals held the Commission’s indecency policy unconstitutionally vague and invalidated it in its The Court of Appeals found the policy, as expressed in the 2001 Guidance and subsequent Commission decisions, failed to give broadcasters sufficient notice of what would be considered indecent. Surveying a number of Commis­ sion adjudications, the court found the Commission was inconsistent as to which words it deemed patently offen­ sive. See t also determined that the Com­ mission’s presumptive prohibition on the F-word and the S-word was plagued by vagueness because the Commission had on occasion found the fleeting use of those words not indecent provided they occurred during a bona fide news interview or were “demonstrably essential to the nature of an artistic or educational work.” d., (internal quotation marks omitted). The Commission’s application of these exceptions, according to the Court of Appeals, left broadcasters guessing whether an expletive would be deemed artistically integral to a program or whether a particular broadcast would be considered a bona fide news interview. The Court of Appeals found the vagueness in­ herent in the policy had forced broadcasters to “choose between not airing controversial programs [or] risking massive fines or possibly even loss of their licenses.” d., at 334. And the court found that there was “ample evi­ dence in the record” that this harsh choice had led to a chill of protected speech. bid. 2 The procedural history regarding ABC is more brief. On February 19, 2008, the Commission issued a forfeiture Cite as: 567 U. S. (2012) 11 Opinion of the Court order finding the display of the woman’s nude buttocks in NYPD Blue was actionably indecent. See n re Com- plaints Against Various Television Licensees Concerning Their February 24, 2003 Broadcast of the Program “NYPD Blue”, 23 FCC Rcd. 3147 The Commission deter­ mined that, regardless of medical definitions, displays of buttocks fell within the category of displays of sexual or excretory organs because the depiction was “widely associ­ ated with sexual arousal and closely associated by most people with excretory activities.” d., The scene was deemed patently offensive as measured by contempo­ rary community standards, ; and the Commission determined that “[t]he female actor’s nudity is presented in a manner that clearly panders to and titillates the audience,” Unlike in the Fox case, the Com­ mission imposed a forfeiture of $27,500 on each of the 45 ABC-affiliated stations that aired the indecent episode. n a summary order the United States Court of Appeals for the Second Circuit vacated the forfeiture order, determin­ ing that it was bound by its Fox decision striking down the entirety of the Commission’s indecency policy. See 404 Fed. Appx., at 533. The Government sought review of both judgments, see Brief for Petitioners 1, and this Court granted certiorari, 564 U. S. (2011). These are the cases before us. A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its appli­ cation, violates the first essential of due process of law”); 12 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United t requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory en­ forcement.” bid. As this Court has explained, a regula­ tion is not vague because it may at times be difficult to prove an incriminating fact but rather because it is un­ clear as to what fact must be proved. See Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina­ tory way. See 108–109 When speech is involved, rigorous adher­ ence to those requirements is necessary to ensure that ambiguity does not chill protected speech. These concerns are implicated here because, at the out­ set, the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed. And leaving aside any concerns about facial invalidity, they contend that the lengthy procedural history set forth above shows that the broadcasters did not have fair notice of what was forbidden. Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration Cite as: 567 U. S. (2012) 13 Opinion of the Court was “ ‘whether the material dwell[ed] on or repeat[ed] at length’ ” the offending description or depiction. 613 F. 3d, at 322. n the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. Fox n the challenged orders now under review the Commission applied the new principle promul­ gated in the Golden Globes Order and determined fleeting expletives and a brief moment of indecency were action­ ably indecent. This regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be action­ ably indecent; yet Fox and ABC were found to be in viola­ tion. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of as interpreted and enforced by the agency “fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.” at This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon “sen­ sitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, ; see also (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its ob­ vious chilling effect”). The Government raises two arguments in response, but neither is persuasive. As for the two fleeting expletives, the Government concedes that “Fox did not have reason­ able notice at the time of the broadcasts that the Com­ mission would consider non-repeated expletives indecent.” Brief for Petitioners 28, n. 3. The Government argues, nonetheless, that Fox “cannot establish unconstitutional 14 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court vagueness on that basis because the Commission did not impose a sanction where Fox lacked such notice.” bid. As the Court observed when the case was here three Terms ago, it is true that the Commission declined to impose any forfeiture on Fox, see and in its order the Commission claimed that it would not con­ sider the indecent broadcasts either when considering whether to renew stations’ licenses or “in any other con­ text,” 21 FCC Rcd., 13326. This “policy of for­ bearance,” as the Government calls it, does not suffice to make the issue moot. Brief for Petitioners 31. Though the Commission claims it will not consider the prior indecent broadcasts “in any context,” it has the statutory power to take into account “any history of prior offenses” when setting the level of a forfeiture penalty. See 47 U.S. C. Just as in the First Amendment context, the due process protection against vague regulations “does not leave [regulated parties] at the mercy of noblesse oblige.” United States v. Stevens, 559 U.S. (slip op., at 18). Given that the Commission found it was “not inequitable to hold Fox responsible for [the 2003 broadcast],” 21 FCC Rcd., at 13314, and that it has the statutory authority to use its finding to increase any fu­ ture penalties, the Government’s assurance it will elect not to do so is insufficient to remedy the constitutional violation. n addition, when combined with the legal consequence described above, reputational injury provides further rea­ son for granting relief to Fox. Cf. Paul v. Davis, 424 U.S. 693, 708–709 (1976) (explaining that an “alteration of legal status combined with the injury resulting from the defamation” justifies the invocation of procedural safeguards). As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputa­ tion with viewers and advertisers.” Brief for Respondent CBS Television Network Affiliates Assn. et al. 17. This Cite as: 567 U. S. (2012) 15 Opinion of the Court observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the inde­ cent material broadcast by Fox, see, e.g., 21 FCC Rcd., at 13310–13311, ¶30 (noting the “explicit, graphic, vulgar, and shocking nature of Ms. Richie’s comments”), and Fox’s efforts to protect children from being exposed to it, see at 13311, ¶33 (finding Fox had failed to exercise “ ‘rea­ sonable judgment, responsibility, and sensitivity to the public’s needs and tastes to avoid [a] patently offensive broadcas[t]’ ”). Commission sanctions on broadcasters for indecent material are widely publicized. See, e.g., F. C. C. Fines Fox, N. Y. Times, Feb. 26, 2008, p. E2; F. C. C. Plans Record Fine for CBS, Washington Post, Sept. 24, 2004, p. E1. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account. With respect to ABC, the Government with good reason does not argue no sanction was imposed. The fine against ABC and its network affiliates for the seven seconds of nudity was nearly $1.24 million. See Brief for Respondent ABC, nc., et al. 7 (hereinafter ABC Brief). The Govern­ ment argues instead that ABC had notice that the scene in NYPD Blue would be considered indecent in light of a 1960 decision where the Commission declared that the “televising of nudes might well raise a serious question of programming contrary to 18 U.S. C.” Brief for Petitioners 32 (quoting Enbanc Programming nquiry, 44 FCC 2303, 2307 (internal quotation marks omitted)). This argument does not prevail. An isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly im­ permissible speech. The Commission, furthermore, had released decisions before sanctioning ABC that declined to find isolated and brief moments of nudity actionably inde­ 16 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court cent. See, e.g., n re Application of WGBH, 69 F. C. C. 2d, at 1251, 1255 (declining to find broadcasts contain- ing nudity to be indecent and emphasizing the difference between repeated and isolated expletives); n re WPBN/ WTOM License Subsidiary, nc., 15 FCC Rcd. 1838, 1840 (2000) (finding full frontal nudity in Schind- ler’s List not indecent). This is not to say, of course, that a graphic scene from Schindler’s List involving nude concentration camp prisoners is the same as the shower scene from NYPD Blue. t does show, however, that the Government can point to nothing that would have given ABC affirmative notice that its broadcast would be consid­ ered actionably indecent. t is likewise not sufficient for the Commission to assert, as it did in its order, that though “the depiction [of nudity] here is not as lengthy or repeated” as in some cases, the shower scene nonetheless “does contain more shots or lengthier depictions of nudity” than in other broadcasts found not indecent. 23 FCC Rcd., This broad language fails to demonstrate that ABC had fair notice that its broadcast could be found indecent. n fact, a Commission ruling prior to the airing of the NYPD Blue episode had deemed 30 seconds of nude buttocks “very brief ” and not actionably indecent in the context of the broadcast. See Letter from Norman Gold­ stein to David Molina, FCC File No. 97110028 (May 26, 1999), in App. to Brief for Respondent ABC Television Affiliates Assn. et al. 1a; see also Letter from Edythe Wise to Susan Cavin, FCC File No. 91100738 (Aug. 13, 1992), at 18a, 19a. n light of this record of agency decisions, and the absence of any notice in the 2001 Guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned. The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Cite as: 567 U. S. (2012) 17 Opinion of the Court Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside. t is necessary to make three observations about the scope of this decision. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implica­ tions of the Commission’s indecency policy. t is argued that this Court’s ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see ) should be overruled be­ cause the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers. See, e.g., ABC Brief 48–57; Brief for Respondent Fox Television Stations, nc., et al. 15–26. The Government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume that the Government has its own interest in setting certain standards. See Brief for Peti­ tioners 40–53. These arguments need not be addressed here. n light of the Court’s holding that the Commission’s policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time. This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub­ sequent adjudications. The Court adheres to its normal practice of declining to decide cases not before it. See, e.g., (“Broader issues have been urged for our consideration, but we 18 FCC v. FOX TELEVSON STATONS, NC. Opinion of the Court adhere to the principle of deciding constitutional ques­ tions only in the context of the particular case before the Court”). Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application. * * * The judgments of the United States Court of Appeals for the Second Circuit are vacated, and the cases are re­ manded for further proceedings consistent with the prin­ ciples set forth in this opinion. t is so ordered. JUSTCE SOTOMAYOR took no part in the consideration or decision of these cases. Cite as: 567 U. S. (2012) 1 GNSBURG, J., concurring in judgment SUPREME COURT OF THE UNTED STATES No. 10–1293 FEDERAL COMMUNCATONS COMMSSON, ET AL., PETTONERS v. FOX TELEVSON STATONS, NC., ET AL. FEDERAL COMMUNCATONS COMMSSON, ET AL., PETTONERS v. ABC, NC., ET AL. ON WRT OF CERTORAR TO THE UNTED STATES COURT OF APPEALS FOR THE SECOND CRCUT [June 21, 2012] JUSTCE GNSBURG, concurring in the judgment.

Justice Ginsburg

concurring

FCC v. Fox Television Stations, Inc.

2012-06-21

https://www.courtlistener.com/opinion/802792/fcc-v-fox-television-stations-inc/

https://www.courtlistener.com/api/rest/v3/clusters/802792/

2011-072

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commis- sion’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 532–535 (2009) (THOMAS, J., concurring)

In my view, the Court’s decision in was wrong when it issued. Time, technological advances, and the Commis- sion’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. (THOMAS, J., concurring)

per_curiam

per_curiam

Lowe v. Pogue

1999-03-29

https://www.courtlistener.com/opinion/1087697/lowe-v-pogue/

https://www.courtlistener.com/api/rest/v3/clusters/1087697/

1998-040

Pro se petitioner Lowe seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny this request pursuant to Rule 39.8. Lowe is allowed until April 19, 1999, within which to pay the docketing fee required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari nor petitions for extraordinary writs from Lowe in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.1. Lowe has abused this Court's certiorari and extraordinary writ processes. In November of last year and earlier this month, we invoked Rule 39.8 to deny Lowe in forma pauperis status. See Lowe v. Cantrell, 525 U.S. 1176 (1999); In re Lowe, 525 U.S. 960 (1998) (three cases). Before these 4 denials, Lowe had filed 23 petitions, all of which were both patently frivolous and had been denied without recorded *274 dissent. The 4 instant petitions for certiorari thus bring Lowe's total number of frivolous filings to 31. He has several additional filings—all of them patently frivolous— currently pending before this Court. We enter the order barring prospective filings for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U.S. 1 (1992) (per curiam). Lowe's abuse of the writ of certiorari and of the extraordinary writs has been in noncriminal cases, and so we limit our sanction accordingly. The order therefore will not prevent Lowe from petitioning to challenge criminal sanctions which might be imposed on him. The order, however, will allow this Court to devote its limited resources to the claims of petitioners who have not abused our process. It is so ordered.

Pro se petitioner Lowe seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny this request pursuant to Rule 39.8. Lowe is allowed until April 19, 1999, within which to pay the docketing fee required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari nor petitions for extraordinary writs from Lowe in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.1. Lowe has abused this Court's certiorari and extraordinary writ processes. In November of last year and earlier this month, we invoked Rule 39.8 to deny Lowe in forma pauperis status. See ; In re Lowe, Before these 4 denials, Lowe had filed 23 petitions, all of which were both patently frivolous and had been denied without recorded *274 dissent. The 4 instant petitions for certiorari thus bring Lowe's total number of frivolous filings to 31. He has several additional filings—all of them patently frivolous— currently pending before this Court. We enter the order barring prospective filings for the reasons discussed in Lowe's abuse of the writ of certiorari and of the extraordinary writs has been in noncriminal cases, and so we limit our sanction accordingly. The order therefore will not prevent Lowe from petitioning to challenge criminal sanctions which might be imposed on him. The order, however, will allow this Court to devote its limited resources to the claims of petitioners who have not abused our process. It is so ordered.

Justice Stevens

dissenting

Lowe v. Pogue

1999-03-29

https://www.courtlistener.com/opinion/1087697/lowe-v-pogue/

https://www.courtlistener.com/api/rest/v3/clusters/1087697/

1998-040

For reasons previously stated, see Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 4 (1992) (Stevens, J., dissenting), and cases cited, I respectfully dissent.

For reasons previously stated, see and cases cited, I respectfully dissent.

Justice Ginsburg

majority

Gisbrecht v. Barnhart

2002-05-28

https://www.courtlistener.com/opinion/118512/gisbrecht-v-barnhart/

https://www.courtlistener.com/api/rest/v3/clusters/118512/

2001-054

This case concerns the fees that may be awarded attorneys who successfully represent Social Security benefits claimants in court. Under 42 U.S. C. § 406(b) (1994 ed. and Supp. V),[1] a prevailing claimant's fees are payable only out of the benefits recovered; in amount, such fees may not exceed 25 percent of past-due benefits. At issue is a question that has sharply divided the Federal Courts of Appeals: What is the appropriate starting point for judicial determinations of "a reasonable fee for [representation before the court]"? See ibid. Is the contingent-fee agreement between claimant and counsel, if not in excess of 25 percent of past-due benefits, presumptively reasonable? Or should courts begin with a lodestar calculation (hours reasonably spent on the case times reasonable hourly rate) of the kind we have approved under statutes that shift the obligation to pay to the loser in the litigation? See Hensley v. Eckerhart, 461 U.S. 424, 426 (1983) (interpreting Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C. § 1988, which allows a "prevailing party" to recover from his adversary "a reasonable attorney's *793 fee as part of the costs" (internal quotation marks omitted)). Congress, we conclude, designed § 406(b) to control, not to displace, fee agreements between Social Security benefits claimants and their counsel. Because the decision before us for review rests on lodestar calculations and rejects the primacy of lawful attorney-client fee agreements, we reverse the judgment below and remand for recalculation of counsel fees payable from the claimants' past-due benefits. I A Fees for representation of individuals claiming Social Security old-age, survivor, or disability benefits, both at the administrative level and in court, are governed by prescriptions Congress originated in 1965. Social Security Amendments of 1965, 79 Stat. 403, as amended, 42 U.S. C. § 406.[2]*794 The statute deals with the administrative and judicial review stages discretely: § 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in court. See also 20 CFR § 404.1728(a) (2001). For representation of a benefits claimant at the administrative level, an attorney may file a fee petition or a fee agreement. 42 U.S. C. § 406(a). In response to a petition, the agency may allow fees "for services performed in connection with any claim before" it; if a determination favorable to the benefits claimant has been made, however, the Commissioner of Social Security "shall . . . fix . . . a reasonable fee" for an attorney's services. § 406(a)(1) (1994 ed.) (emphasis added). In setting fees under this method, the agency takes into account, in addition to any benefits award, several other factors. See 20 CFR § 404.1725(b) (2001).[3] Fees may *795 be authorized, on petition, even if the benefits claimant was unsuccessful. § 404.1725(b)(2). As an alternative to fee petitions, the Social Security Act, as amended in 1990, accommodates contingent-fee agreements filed with the agency in advance of a ruling on the claim for benefits. Omnibus Budget Reconciliation Act of 1990, 104 Stat. 1388-266 to 1388-267, as amended, 42 U.S. C. §§ 406(a)(2)-(4) (1994 ed. and Supp. V). If the ruling on the benefits claim is favorable to the claimant, the agency will generally approve the fee agreement, subject to this limitation: Fees may not exceed the lesser of 25 percent of past-due benefits or $4,000 (increased to $5,300 effective February 2002). §§ 406(a)(2)(A)(ii), (iii) (1994 ed.); 67 Fed. Reg. 2477 (2002); see Social Security Administration, Office of Hearings and Appeals, Litigation Law Manual (HALLEX) I-5-109 III.A (Feb. 5, 1999). For proceedings in court, Congress provided for fees on rendition of "a judgment favorable to a claimant." 42 U.S. C. § 406(b)(1)(A) (1994 ed., Supp. V). The Commissioner has interpreted § 406(b) to "prohibi[t] a lawyer from charging fees when there is no award of back benefits." Tr. of Oral Arg. 37-38; see Brief in Opposition 12, n. 12 (reading § 406(b) to "prohibi[t] other [fee] arrangements such as non-contingent hourly fees"). As part of its judgment, a court may allow "a reasonable fee . . . not in excess of 25 percent of the . . . past-due benefits" awarded to the claimant. § 406(b)(1)(A). The fee is payable "out of, and not in addition to, the amount of [the] past-due benefits." Ibid. Because benefits amounts figuring in the fee calculation are limited to those past due, attorneys may not gain additional fees based on a claimant's continuing entitlement to benefits. The prescriptions set out in §§ 406(a) and (b) establish the exclusive regime for obtaining fees for successful representation *796 of Social Security benefits claimants. Collecting or even demanding from the client anything more than the authorized allocation of past-due benefits is a criminal offense. §§ 406(a)(5), (b)(2) (1994 ed.); 20 CFR §§ 404.1740-1799 (2001). In many cases, as in the instant case, the Equal Access to Justice Act (EAJA), enacted in 1980, effectively increases the portion of past-due benefits the successful Social Security claimant may pocket. 94 Stat. 2329, as amended, 28 U.S. C. § 2412. Under EAJA, a party prevailing against the United States in court, including a successful Social Security benefits claimant, may be awarded fees payable by the United States if the Government's position in the litigation was not "substantially justified." § 2412(d)(1)(A). EAJA fees are determined not by a percent of the amount recovered, but by the "time expended" and the attorney's "[hourly] rate," § 2412(d)(1)(B), capped in the mine run of cases at $125 per hour, § 2412(d)(2)(A).[4] Cf. 5 U.S. C. § 504 (authorizing payment of attorney's fees by the Government when a party prevails in a federal agency adjudication). Congress harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant's past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant's attorney must "refun[d] to the claimant the amount of the smaller fee." Act of Aug. 5, 1985, Pub. L. 99-80, § 3, 99 Stat. 186. "Thus, an EAJA award offsets an award under Section 406(b), so that the [amount of the total past-due benefits the claimant actually receives] will be increased by the . . . EAJA award up to the point the claimant receives 100 percent of the past-due benefits." Brief for United States 3. *797 B Petitioners Gary Gisbrecht, Barbara Miller, and Nancy Sandine brought three separate actions in the District Court for the District of Oregon under 42 U.S. C. § 405(g) (1994 ed.),[5] seeking Social Security disability benefits under Title II of the Social Security Act. All three petitioners were represented by the same attorneys, and all three prevailed on the merits of their claims. Gisbrecht was awarded $28,366 in past-due benefits; Miller, $30,056; and Sandine, $55,952. Each petitioner then successfully sought attorneys' fees payable by the United States under EAJA: Gisbrecht was awarded $3,339.11, Miller, $5,164.75, and Sandine, $6,836.10. Pursuant to contingent-fee agreements standard for Social Security claimant representation, see 1 B. Samuels, Social Security Disability Claims § 21:10 (2d ed. 1994), Gisbrecht, Miller, and Sandine had each agreed to pay counsel 25 percent of all past-due benefits recovered, App. to Pet. for Cert. 72-86. Their attorneys accordingly requested § 406(b) fees of $7,091.50 from Gisbrecht's recovery, $7,514 from Miller's, and $13,988 from Sandine's. Given the EAJA offsets, the amounts in fact payable from each client's past-due benefits recovery would have been $3,752.39 from Gisbrecht's recovery, $2,349.25 from Miller's, and $7,151.90 from Sandine's. Following Circuit precedent, see Allen v. Shalala, 48 F.3d 456, 458-459 (CA9 1995), the District Court in each case declined to give effect to the attorney-client fee agreement. Gisbrecht v. Apfel, No. CV-98-0437-RE (Ore., Apr. 14, 1999); Miller v. Apfel, No. CV-96-6164-AS (Ore., Mar. 30, 1999); Sandine v. Apfel, No. CV-97-6197-ST (Ore., June 18, 1999). Instead, the court employed for the § 406(b) fee calculation a "lodestar" method, under which the number of hours reasonably devoted to each case was multiplied by a reasonable *798 hourly fee. This method yielded as § 406(b) fees $3,135 from Gisbrecht's recovery, $5,461.50 from Miller's, and $6,550 from Sandine's. Offsetting the EAJA awards, the court determined that no portion of Gisbrecht's or Sandine's past-due benefits was payable to counsel, and that only $296.75 of Miller's recovery was payable to her counsel as a § 406(b) fee. The three claimants appealed.[6] Adhering to Circuit precedent applying the lodestar method to calculate fees under § 406(b), the Court of Appeals for the Ninth Circuit consolidated the cases[7] and affirmed the District Court's fee dispositions. Gisbrecht v. Apfel, 238 F.3d 1196 (2000). The Appeals Court noted that fees determined under the lodestar method could be adjusted by applying 12 further factors, one of them, "whether the fee is fixed or contingent." Id., at 1198 (quoting Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (CA9 1975)).[8] While "a district *799 court must consider a plaintiff's request to increase a fee [based on a contingent-fee agreement]," the Ninth Circuit stated, "a court `is not required to articulate its reasons' for accepting or rejecting such a request." 238 F.3d, at 1199 (quoting Widrig v. Apfel, 140 F.3d 1207, 1211 (CA9 1998)) (emphasis in original). We granted certiorari, 534 U.S. 1039 (2001), in view of the division among the Circuits on the appropriate method of calculating fees under § 406(b). Compare Coup v. Heckler, 834 F.2d 313 (CA3 1987); Craig v. Secretary, Dept. of Health and Human Servs., 864 F.2d 324 (CA4 1989); Brown v. Sullivan, 917 F.2d 189 (CA5 1990); Cotter v. Bowen, 879 F.2d 359 (CA8 1989); Hubbard v. Shalala, 12 F.3d 946 (CA10 1993); and Kay v. Apfel, 176 F.3d 1322 (CA11 1999) (all following, in accord with the Ninth Circuit, a lodestar method), with Wells v. Sullivan, 907 F.2d 367 (CA2 1990); Rodriguez v. Bowen, 865 F.2d 739 (CA6 1989) (en banc); and McGuire v. Sullivan, 873 F.2d 974 (CA7 1989) (all giving effect to attorney-client contingent-fee agreement, if resulting fee is reasonable).[9] We now reverse the Ninth Circuit's judgment. II Beginning with the text, § 406(b)'s words, "a reasonable fee . . . not in excess of 25 percent of . . . the past-due benefits," read in isolation, could be construed to allow either the Ninth Circuit's lodestar approach or petitioners' position that the attorney-client fee agreement ordinarily should control, if not "in excess of 25 percent." The provision *800 instructs "a reasonable fee," which could be measured by a lodestar calculation. But § 406(b)'s language does not exclude contingent-fee contracts that produce fees no higher than the 25 percent ceiling. Such contracts are the most common fee arrangement between attorneys and Social Security claimants. See Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Report to Congress: Attorney Fees Under Title II of the Social Security Act 15, 66, 70 (July 1988) (hereinafter SSA Report); Brief for National Organization of Social Security Claimants' Representatives as Amicus Curiae 1-2. Looking outside the statute's inconclusive text, we next take into account, as interpretive guides, the origin and standard application of the proffered approaches. The lodestar method has its roots in accounting practices adopted in the 1940's to allow attorneys and firms to determine whether fees charged were sufficient to cover overhead and generate suitable profits. W. Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys 16 (1996) (hereinafter Honest Hour). An American Bar Association (ABA) report, published in 1958, observed that attorneys' earnings had failed to keep pace with the rate of inflation; the report urged attorneys to record the hours spent on each case in order to ensure that fees ultimately charged afforded reasonable compensation for counsels' efforts. See Special Committee on Economics of Law Practice, The 1958 Lawyer and His 1938 Dollar 9-10 (reprint 1959). Hourly records initially provided only an internal accounting check. See Honest Hour 19. The fees actually charged might be determined under any number of methods: the annual retainer; the fee-for-service method; the "eyeball" method, under which the attorney estimated an annual fee for regular clients; or the contingent-fee method, recognized by this Court in Stanton v. Embrey, 93 U.S. 548, 556 (1877), and formally approved by the ABA in 1908. See Honest Hour 13-19. As it became standard accounting practice to *801 record hours spent on a client's matter, attorneys increasingly realized that billing by hours devoted to a case was administratively convenient; moreover, as an objective measure of a lawyer's labor, hourly billing was readily impartable to the client. Id., at 18. By the early 1970's, the practice of hourly billing had become widespread. See id., at 19, 21. The federal courts did not swiftly settle on hourly rates as the overriding criterion for attorney's fee awards. In 1974, for example, the Fifth Circuit issued an influential opinion holding that, in setting fees under Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-5(k) (1970 ed.), courts should consider not only the number of hours devoted to a case but also 11 other factors. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (1974).[10] The lodestar method did not gain a firm foothold until the mid-1970's, see Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (CA3 1973), appeal after remand, 540 F.2d 102 (1976), and achieved dominance in the federal courts only after this Court's decisions in Hensley v. Eckerhart, 461 U.S. 424 (1983), Blum v. Stenson, 465 U.S. 886 (1984), and Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986). Since that time, "[t]he `lodestar' figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence." Burlington v. Dague, 505 U.S. 557, 562 (1992) (relying on Hensley, Blum, and Delaware Valley to apply lodestar method to fee determination under Solid Waste Disposal Act, § 7002(e), 42 U.S. C. § 6972(e) (1988 ed.), and Clean Water Act, § 505(d), 33 U.S. C. § 1365(d) (1988 ed.), and noting prior application of lodestar method to Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C. § 1988 (1988 ed., Supp. III); Title VII of Civil Rights Act of 1964, 42 U.S. C. § 2000e-5(k) (1988 ed., Supp. III); and Clean Air Act, 42 U.S. C. § 7604(d) (1988 ed.)). As we recognized in Hensley, *802 "[i]deally, . . . litigants will settle the amount of a fee." 461 U.S., at 437.[11] But where settlement between the parties is not possible, "[t]he most useful starting point for [court determination of] the amount of a reasonable fee [payable by the loser] is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id., at 433. Thus, the lodestar method today holds sway in federal-court adjudication of disputes over the amount of fees properly shifted to the loser in the litigation. See id., at 440 (Burger, C. J., concurring) (decision addresses statute under which "a lawyer seeks to have his adversary pay the fees of the prevailing party"). Fees shifted to the losing party, however, are not at issue here. Unlike 42 U.S. C. § 1988 (1994 ed. and Supp. V) and EAJA, 42 U.S. C. § 406(b) (1994 ed., Supp. V) does not authorize the prevailing party to recover fees from the losing party. Section 406(b) is of another genre: It authorizes fees payable from the successful party's recovery. Several statutes governing suits against the United States similarly provide that fees may be paid from the plaintiff's recovery. See, e. g., Federal Tort Claims Act (FTCA), 28 U.S. C. § 2678 ("No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any [court] judgment rendered [in an FTCA suit], or in excess of 20 per centum of any award, compromise, or settlement made [by a federal agency to settle an FTCA claim]."); Veterans' Benefits Act, 38 U.S. C. § 5904(d)(1) (1994 ed.) ("When a claimant [for veterans' benefits] and an attorney have entered into a [contingent-]fee agreement [under which fees are paid by withholding from the claimant's benefits award], the total fee payable to the attorney may not exceed 20 percent of the total amount of any past-due benefits awarded *803 on the basis of the claim.").[12] Characteristically in cases of the kind we confront, attorneys and clients enter into contingent-fee agreements "specifying that the fee will be 25 percent of any past-due benefits to which the claimant becomes entitled." Brief for National Organization of Social Security Claimants' Representatives as Amicus Curiae 2; see Brief for Washington Legal Foundation et al. as Amici Curiae 9, n. 6 ("There is no serious dispute among the parties that virtually every attorney representing Title II disability claimants includes in his/her retainer agreement a provision calling for a fee equal to 25% of the past-due benefits awarded by the courts."). Contingent fees, though problematic, particularly when not exposed to court review, are common in the United States in many settings. Such fees, perhaps most visible in *804 tort litigation, are also used in, e. g., patent litigation, real estate tax appeals, mergers and acquisitions, and public offerings. See ABA Formal Opinion 94-389, ABA/BNA Lawyers' Manual On Professional Conduct 1001:248, 1001:250 (1994). But see id., at 1001:248, n. 3 (quoting observation that controls on contingent fees are needed to "reduce financial incentives that encourage lawyers to file unnecessary, unwarranted[,] and unmeritorious suits" (internal quotation marks omitted)). Traditionally and today, "the marketplace for Social Security representation operates largely on a contingency fee basis." SSA Report 3; see also id., at 15, 66, 70; App. to Pet. for Cert. 56, 60, 88, 89, 91 (affidavits of practitioners). Before 1965, the Social Security Act imposed no limits on contingent-fee agreements drawn by counsel and signed by benefits claimants. In formulating the 1965 Social Security Act amendments that included § 406(b), Congress recognized that "attorneys have upon occasion charged . . . inordinately large fees for representing claimants [in court]." S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 122 (1965). Arrangements yielding exorbitant fees, the Senate Report observed, reserved for the lawyer one-third to one-half of the accrued benefits. Ibid. Congress was mindful, too, that the longer the litigation persisted, the greater the buildup of past-due benefits and, correspondingly, of legal fees awardable from those benefits if the claimant prevailed. Ibid.[13] Attending to these realities, Congress provided for "a reasonable fee, not in excess of 25 percent of accrued benefits," *805 as part of the court's judgment, and further specified that "no other fee would be payable." Ibid. Violation of the "reasonable fee" or "25 percent of accrued benefits" limitation was made subject to the same penalties as those applicable for charging a fee larger than the amount approved by the Commissioner for services at the administrative level— a fine of up to $500, one year's imprisonment, or both. Ibid. "[T]o assure the payment of the fee allowed by the court," Congress authorized the agency "to certify the amount of the fee to the attorney out of the amount of the accrued benefits." Ibid.; see supra, at 804, n. 13. Congress thus sought to protect claimants against "inordinately large fees" and also to ensure that attorneys representing successful claimants would not risk "nonpayment of [appropriate] fees." SSA Report 66 (internal quotation marks omitted). But nothing in the text or history of § 406(b) reveals a "desig[n] to prohibit or discourage attorneys and claimants from entering into contingent fee agreements." Ibid. Given the prevalence of contingent-fee agreements between attorneys and Social Security claimants, it is unlikely that Congress, simply by prescribing "reasonable fees," meant to outlaw, rather than to contain, such agreements.[14] This conclusion is bolstered by Congress' 1990 authorization of contingent-fee agreements under § 406(a), the provision governing fees for agency-level representation. Before enacting this express authorization, Congress instructed the Social Security Administration to prepare a report on attorney's *806 fees under Title II of the Social Security Act. Pub. L. 100-203, § 9021(b), 101 Stat. 1330-295. The report, presented to Congress in 1988, reviewed several methods of determining attorney's fees, including the lodestar method. See SSA Report 10-11. This review led the agency to inform Congress that, although the contingency method was hardly flawless, the agency could "identify no more effective means of ensuring claimant access to attorney representation." Id., at 25. Congress subsequently altered § 406(a) to validate contingent-fee agreements filed with the agency prior to disposition of the claim for benefits. See 42 U.S. C. § 406(a)(2) (1994 ed.); supra, at 795. As petitioners observe, Brief for Petitioners 24, it would be anomalous if contract-based fees expressly authorized by § 406(a)(2) at the administrative level were disallowed for court representation under § 406(b). It is also unlikely that Congress, legislating in 1965, and providing for a contingent fee tied to a 25 percent of past-due benefits boundary, intended to install a lodestar method courts did not develop until some years later. See supra, at 801-802. Furthermore, we again emphasize, the lodestar method was designed to govern imposition of fees on the losing party. See, e. g., Dague, 505 U. S., at 562. In such cases, nothing prevents the attorney for the prevailing party from gaining additional fees, pursuant to contract, from his own client. See Venegas v. Mitchell, 495 U.S. 82, 89-90 (1990) ("[None] of our cases has indicated that [42 U.S. C.] § 1988 . . . protects plaintiffs from having to pay what they have contracted to pay, even though their contractual liability is greater than the statutory award that they may collect from losing opponents. Indeed, depriving plaintiffs of the option of promising to pay more than the statutory fee if that is necessary to secure counsel of their choice would not further § 1988's general purpose of enabling such plaintiffs . . . to secure competent counsel."). By contrast, § 406(b) governs the total fee a claimant's attorney may receive for court representation; any endeavor by the claimant's attorney to *807 gain more than that fee, or to charge the claimant a noncontingent fee, is a criminal offense. 42 U.S. C. § 406(b)(2); 20 CFR § 404.1740(c)(2) (2001). Most plausibly read, we conclude, § 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.[15] Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits. § 406(b)(1)(A) (1994 ed., Supp. V).[16] Within the 25 percent boundary, as petitioners in this case acknowledge, the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered. See Brief for Petitioners 40.[17] *808 Courts that approach fee determinations by looking first to the contingent-fee agreement, then testing it for reasonableness, have appropriately reduced the attorney's recovery based on the character of the representation and the results the representative achieved. See, e. g., McGuire, 873 F. 2d, at 983 ("Although the contingency agreement should be given significant weight in fixing a fee, a district judge must independently assess the reasonableness of its terms."); Lewis v. Secretary of Health and Human Servs., 707 F.2d 246, 249-250 (CA6 1983) (instructing reduced fee when representation is substandard). If the attorney is responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court. See Rodriquez, 865 F. 2d, at 746-747. If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order. See id., at 747 (reviewing court should disallow "windfalls for lawyers"); Wells, 907 F. 2d, at 372 (same). In this regard, the court may require the claimant's attorney to submit, not as a basis for satellite litigation, but as an aid to the court's assessment of the reasonableness of the fee yielded by the fee agreement, a record of the hours spent representing the claimant and a statement of the lawyer's normal hourly billing charge for noncontingent-fee cases. See Rodriquez, 865 F. 2d, at 741. Judges of our district courts are accustomed to making reasonableness determinations in a wide variety of contexts, and their assessments in such matters, in the event of an appeal, ordinarily qualify for highly respectful review. * * * The courts below erroneously read § 406(b) to override customary attorney-client contingent-fee agreements. We hold that § 406(b) does not displace contingent-fee agreements *809 within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements. Accordingly, we reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

This case concerns the fees that may be awarded attorneys who successfully represent Social Security benefits claimants in court. Under 42 U.S. C. 406(b) (1994 ed. and Supp. V),[1] a prevailing claimant's fees are payable only out of the benefits recovered; in amount, such fees may not exceed 25 percent of past-due benefits. At issue is a question that has sharply divided the Federal Courts of Appeals: What is the appropriate starting point for judicial determinations of "a reasonable fee for [representation before the court]"? See Is the contingent-fee agreement between claimant and counsel, if not in excess of 25 percent of past-due benefits, presumptively reasonable? Or should courts begin with a lodestar calculation (hours reasonably spent on the case times reasonable hourly rate) of the kind we have approved under statutes that shift the obligation to pay to the loser in the litigation? See (interpreting Civil Rights Attorney's Fees Awards Act of 42 U.S. C. 1988, which allows a "prevailing party" to recover from his adversary "a reasonable attorney's *793 fee as part of the costs" (internal quotation marks omitted)). Congress, we conclude, designed 406(b) to control, not to displace, fee agreements between Social Security benefits claimants and their counsel. Because the decision before us for review rests on lodestar calculations and rejects the primacy of lawful attorney-client fee agreements, we reverse the judgment below and remand for recalculation of counsel fees payable from the claimants' past-due benefits. I A Fees for representation of individuals claiming Social Security old-age, survivor, or disability benefits, both at the administrative level and in court, are governed by prescriptions Congress originated in 1965. Social Security Amendments of 1965, as amended, 42 U.S. C. 406.[2]*794 The statute deals with the administrative and judicial review stages discretely: 406(a) governs fees for representation in administrative proceedings; 406(b) controls fees for representation in court. See also 20 CFR 404.1728(a) For representation of a benefits claimant at the administrative level, an attorney may file a fee petition or a fee agreement. 42 U.S. C. 406(a). In response to a petition, the agency may allow fees "for services performed in connection with any claim before" it; if a determination favorable to the benefits claimant has been made, however, the Commissioner of Social Security "shall fix a reasonable fee" for an attorney's services. 406(a)(1) (1994 ed.) (emphasis added). In setting fees under this method, the agency takes into account, in addition to any benefits award, several other factors. See 20 CFR 404.1725(b)[3] Fees may *795 be authorized, on petition, even if the benefits claimant was unsuccessful. 404.1725(b)(2). As an alternative to fee petitions, the Social Security Act, as amended in accommodates contingent-fee agreements filed with the agency in advance of a ruling on the claim for benefits. Omnibus Budget Reconciliation Act of -266 to 1388-267, as amended, 42 U.S. C. 406(a)(2)-(4) (1994 ed. and Supp. V). If the ruling on the benefits claim is favorable to the claimant, the agency will generally approve the fee agreement, subject to this limitation: Fees may not exceed the lesser of 25 percent of past-due benefits or $4,000 (increased to $5,300 effective February 2002). 406(a)(2)(A)(ii), (iii) (1994 ed.); (2002); see Social Security Administration, Office of Hearings and Appeals, Litigation Law Manual (HALLEX) I-5-109 III.A For proceedings in court, Congress provided for fees on rendition of "a judgment favorable to a claimant." 42 U.S. C. 406(b)(1)(A) (1994 ed., Supp. V). The Commissioner has interpreted 406(b) to "prohibi[t] a lawyer from charging fees when there is no award of back benefits." Tr. of Oral Arg. 37-38; see Brief in Opposition 12, n. 12 (reading 406(b) to "prohibi[t] other [fee] arrangements such as non-contingent hourly fees"). As part of its judgment, a court may allow "a reasonable fee not in excess of 25 percent of the past-due benefits" awarded to the claimant. 406(b)(1)(A). The fee is payable "out of, and not in addition to, the amount of [the] past-due benefits." Because benefits amounts figuring in the fee calculation are limited to those past due, attorneys may not gain additional fees based on a claimant's continuing entitlement to benefits. The prescriptions set out in 406(a) and (b) establish the exclusive regime for obtaining fees for successful representation *796 of Social Security benefits claimants. Collecting or even demanding from the client anything more than the authorized allocation of past-due benefits is a criminal offense. 406(a)(5), (b)(2) (1994 ed.); 20 CFR 404.1740-1799 In many cases, as in the instant case, the Equal Access to Justice Act (EAJA), enacted in 1980, effectively increases the portion of past-due benefits the successful Social Security claimant may pocket. as amended, 28 U.S. C. 2412. Under EAJA, a party prevailing against the United States in court, including a successful Social Security benefits claimant, may be awarded fees payable by the United States if the Government's position in the litigation was not "substantially justified." 2412(d)(1)(A). EAJA fees are determined not by a percent of the amount recovered, but by the "time expended" and the attorney's "[hourly] rate," 2412(d)(1)(B), capped in the mine run of cases at $125 per hour, 2412(d)(2)(A).[4] Cf. 5 U.S. C. 504 (authorizing payment of attorney's fees by the Government when a party prevails in a federal agency adjudication). Congress harmonized fees payable by the Government under EAJA with fees payable under 406(b) out of the claimant's past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant's attorney must "refun[d] to the claimant the amount of the smaller fee." Act of Aug. 5, 1985, Pub. L. 99-80, 3, "Thus, an EAJA award offsets an award under Section 406(b), so that the [amount of the total past-due benefits the claimant actually receives] will be increased by the EAJA award up to the point the claimant receives 100 percent of the past-due benefits." Brief for United States 3. *797 B Petitioners Gary Gisbrecht, Barbara Miller, and Nancy Sandine brought three separate actions in the District Court for the District of Oregon under 42 U.S. C. 405(g) (1994 ed.),[5] seeking Social Security disability benefits under Title II of the Social Security Act. All three petitioners were represented by the same attorneys, and all three prevailed on the merits of their claims. Gisbrecht was awarded $28,366 in past-due benefits; Miller, $30,056; and Sandine, $55,952. Each petitioner then successfully sought attorneys' fees payable by the United States under EAJA: Gisbrecht was awarded $3,339.11, Miller, $5,164.75, and Sandine, $6,836.10. Pursuant to contingent-fee agreements standard for Social Security claimant representation, see 1 B. Samuels, Social Security Disability Claims 21:10 (2d ed. 1994), Gisbrecht, Miller, and Sandine had each agreed to pay counsel 25 percent of all past-due benefits recovered, App. to Pet. for Cert. 72-86. Their attorneys accordingly requested 406(b) fees of $7,091.50 from Gisbrecht's recovery, $7,514 from Miller's, and $13,988 from Sandine's. Given the EAJA offsets, the amounts in fact payable from each client's past-due benefits recovery would have been $3,752.39 from Gisbrecht's recovery, $2,349.25 from Miller's, and $7,151.90 from Sandine's. Following Circuit precedent, see the District Court in each case declined to give effect to the attorney-client fee agreement. No. CV-98-0437-RE ; Miller v. Apfel, No. CV-96-6164-AS ; Sandine v. Apfel, No. CV-97-6197-ST Instead, the court employed for the 406(b) fee calculation a "lodestar" method, under which the number of hours reasonably devoted to each case was multiplied by a reasonable *798 hourly fee. This method yielded as 406(b) fees $3,135 from Gisbrecht's recovery, $5,461.50 from Miller's, and $6,550 from Sandine's. Offsetting the EAJA awards, the court determined that no portion of Gisbrecht's or Sandine's past-due benefits was payable to counsel, and that only $296.75 of Miller's recovery was payable to her counsel as a 406(b) fee. The three claimants appealed.[6] Adhering to Circuit precedent applying the lodestar method to calculate fees under 406(b), the Court of Appeals for the Ninth Circuit consolidated the cases[7] and affirmed the District Court's fee dispositions. The Appeals Court noted that fees determined under the lodestar method could be adjusted by applying 12 further factors, one of them, "whether the fee is fixed or contingent." ).[8] While "a district *799 court must consider a plaintiff's request to increase a fee [based on a contingent-fee agreement]," the Ninth Circuit stated, "a court `is not required to articulate its reasons' for accepting or rejecting such a request." ) (emphasis in original). We granted certiorari, in view of the division among the Circuits on the appropriate method of calculating fees under 406(b). Compare ; ; ; ; ; and with ; ; and[9] We now reverse the Ninth Circuit's judgment. II Beginning with the text, 406(b)'s words, "a reasonable fee not in excess of 25 percent of the past-due benefits," read in isolation, could be construed to allow either the Ninth Circuit's lodestar approach or petitioners' position that the attorney-client fee agreement ordinarily should control, if not "in excess of 25 percent." The provision *800 instructs "a reasonable fee," which could be measured by a lodestar calculation. But 406(b)'s language does not exclude contingent-fee contracts that produce fees no higher than the 25 percent ceiling. Such contracts are the most common fee arrangement between attorneys and Social Security claimants. See Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Report to Congress: Attorney Fees Under Title II of the Social Security Act 15, 66, (July 1988) (hereinafter SSA Report); Brief for National Organization of Social Security Claimants' Representatives as Amicus Curiae 1-2. Looking outside the statute's inconclusive text, we next take into account, as interpretive guides, the origin and standard application of the proffered approaches. The lodestar method has its roots in accounting practices adopted in the 1940's to allow attorneys and firms to determine whether fees charged were sufficient to cover overhead and generate suitable profits. W. Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys 16 (1996) (hereinafter Honest Hour). An American Bar Association (ABA) report, published in 1958, observed that attorneys' earnings had failed to keep pace with the rate of inflation; the report urged attorneys to record the hours spent on each case in order to ensure that fees ultimately charged afforded reasonable compensation for counsels' efforts. See Special Committee on Economics of Law Practice, The 1958 Lawyer and His 1938 Dollar 9-10 (reprint 1959). Hourly records initially provided only an internal accounting check. See Honest Hour 19. The fees actually charged might be determined under any number of methods: the annual retainer; the fee-for-service method; the "eyeball" method, under which the attorney estimated an annual fee for regular clients; or the contingent-fee method, recognized by this Court in and formally approved by the ABA in 1908. See Honest Hour 13-19. As it became standard accounting practice to *801 record hours spent on a client's matter, attorneys increasingly realized that billing by hours devoted to a case was administratively convenient; moreover, as an objective measure of a lawyer's labor, hourly billing was readily impartable to the client. By the early 19's, the practice of hourly billing had become widespread. See The federal courts did not swiftly settle on hourly rates as the overriding criterion for attorney's fee awards. In for example, the Fifth Circuit issued an influential opinion holding that, in setting fees under Title VII of the Civil Rights Act of 1964, 42 U.S. C. e-5(k) (19 ed.), courts should consider not only the number of hours devoted to a case but also 11 other factors.[10] The lodestar method did not gain a firm foothold until the mid-19's, see Lindy Bros. Builders, Inc. of appeal after remand, and achieved dominance in the federal courts only after this Court's decisions in and Since that time, "[t]he `lodestar' figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence." (relying on Hensley, Blum, and Delaware Valley to apply lodestar method to fee determination under Solid Waste Disposal Act, 02(e), 42 U.S. C. 6972(e) (1988 ed.), and Clean Water Act, 505(d), 33 U.S. C. 1365(d) (1988 ed.), and noting prior application of lodestar method to Civil Rights Attorney's Fees Awards Act of 42 U.S. C. 1988 (1988 ed., Supp. III); Title VII of Civil Rights Act of 1964, 42 U.S. C. e-5(k) (1988 ed., Supp. III); and Clean Air Act, 42 U.S. C. 7604(d) (1988 ed.)). As we recognized in Hensley, *802 "[i]deally, litigants will settle the amount of a fee."[11] But where settlement between the parties is not possible, "[t]he most useful starting point for [court determination of] the amount of a reasonable fee [payable by the loser] is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Thus, the lodestar method today holds sway in federal-court adjudication of disputes over the amount of fees properly shifted to the loser in the litigation. See (decision addresses statute under which "a lawyer seeks to have his adversary pay the fees of the prevailing party"). Fees shifted to the losing party, however, are not at issue here. Unlike 42 U.S. C. 1988 (1994 ed. and Supp. V) and EAJA, 42 U.S. C. 406(b) (1994 ed., Supp. V) does not authorize the prevailing party to recover fees from the losing party. Section 406(b) is of another genre: It authorizes fees payable from the successful party's recovery. Several statutes governing suits against the United States similarly provide that fees may be paid from the plaintiff's recovery. See, e. g., Federal Tort Claims Act (FTCA), 28 U.S. C. 2678 ("No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any [court] judgment rendered [in an FTCA suit], or in excess of 20 per centum of any award, compromise, or settlement made [by a federal agency to settle an FTCA claim]."); Veterans' Benefits Act, 38 U.S. C. 5904(d)(1) (1994 ed.) ("When a claimant [for veterans' benefits] and an attorney have entered into a [contingent-]fee agreement [under which fees are paid by withholding from the claimant's benefits award], the total fee payable to the attorney may not exceed 20 percent of the total amount of any past-due benefits awarded *803 on the basis of the claim.").[12] Characteristically in cases of the kind we confront, attorneys and clients enter into contingent-fee agreements "specifying that the fee will be 25 percent of any past-due benefits to which the claimant becomes entitled." Brief for National Organization of Social Security Claimants' Representatives as Amicus Curiae 2; see Brief for Washington Legal Foundation et al. as Amici Curiae 9, n. 6 ("There is no serious dispute among the parties that virtually every attorney representing Title II disability claimants includes in his/her retainer agreement a provision calling for a fee equal to 25% of the past-due benefits awarded by the courts."). Contingent fees, though problematic, particularly when not exposed to court review, are common in the United States in many settings. Such fees, perhaps most visible in *804 tort litigation, are also used in, e. g., patent litigation, real estate tax appeals, mergers and acquisitions, and public offerings. See ABA Formal Opinion 94-389, ABA/BNA Lawyers' Manual On Professional Conduct 1001:248, 1001:250 (1994). But see Traditionally and today, "the marketplace for Social Security representation operates largely on a contingency fee basis." SSA Report 3; see also at 15, 66, ; App. to Pet. for Cert. 56, 60, 88, 89, 91 (affidavits of practitioners). Before 1965, the Social Security Act imposed no limits on contingent-fee agreements drawn by counsel and signed by benefits claimants. In formulating the 1965 Social Security Act amendments that included 406(b), Congress recognized that "attorneys have upon occasion charged inordinately large fees for representing claimants [in court]." S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 122 (1965). Arrangements yielding exorbitant fees, the Senate Report observed, reserved for the lawyer one-third to one-half of the accrued benefits. Congress was mindful, too, that the longer the litigation persisted, the greater the buildup of past-due benefits and, correspondingly, of legal fees awardable from those benefits if the claimant prevailed. [13] Attending to these realities, Congress provided for "a reasonable fee, not in excess of 25 percent of accrued benefits," *805 as part of the court's judgment, and further specified that "no other fee would be payable." Violation of the "reasonable fee" or "25 percent of accrued benefits" limitation was made subject to the same penalties as those applicable for charging a fee larger than the amount approved by the Commissioner for services at the administrative level— a fine of up to $500, one year's imprisonment, or both. "[T]o assure the payment of the fee allowed by the court," Congress authorized the agency "to certify the amount of the fee to the attorney out of the amount of the accrued benefits." ; see Congress thus sought to protect claimants against "inordinately large fees" and also to ensure that attorneys representing successful claimants would not risk "nonpayment of [appropriate] fees." SSA Report 66 (internal quotation marks omitted). But nothing in the text or history of 406(b) reveals a "desig[n] to prohibit or discourage attorneys and claimants from entering into contingent fee agreements." Given the prevalence of contingent-fee agreements between attorneys and Social Security claimants, it is unlikely that Congress, simply by prescribing "reasonable fees," meant to outlaw, rather than to contain, such agreements.[14] This conclusion is bolstered by Congress' authorization of contingent-fee agreements under 406(a), the provision governing fees for agency-level representation. Before enacting this express authorization, Congress instructed the Social Security Administration to prepare a report on attorney's *806 fees under Title II of the Social Security Act. Pub. L. 100-203, 9021(b), -295. The report, presented to Congress in 1988, reviewed several methods of determining attorney's fees, including the lodestar method. See SSA Report 10-11. This review led the agency to inform Congress that, although the contingency method was hardly flawless, the agency could "identify no more effective means of ensuring claimant access to attorney representation." Congress subsequently altered 406(a) to validate contingent-fee agreements filed with the agency prior to disposition of the claim for benefits. See 42 U.S. C. 406(a)(2) (1994 ed.); As petitioners observe, Brief for Petitioners 24, it would be anomalous if contract-based fees expressly authorized by 406(a)(2) at the administrative level were disallowed for court representation under 406(b). It is also unlikely that Congress, legislating in 1965, and providing for a contingent fee tied to a 25 percent of past-due benefits boundary, intended to install a lodestar method courts did not develop until some years later. See Furthermore, we again emphasize, the lodestar method was designed to govern imposition of fees on the losing party. See, e. g., 505 U. S., at In such cases, nothing prevents the attorney for the prevailing party from gaining additional fees, pursuant to contract, from his own client. See ("[None] of our cases has indicated that [42 U.S. C.] 1988 protects plaintiffs from having to pay what they have contracted to pay, even though their contractual liability is greater than the statutory award that they may collect from losing opponents. Indeed, depriving plaintiffs of the option of promising to pay more than the statutory fee if that is necessary to secure counsel of their choice would not further 1988's general purpose of enabling such plaintiffs to secure competent counsel."). By contrast, 406(b) governs the total fee a claimant's attorney may receive for court representation; any endeavor by the claimant's attorney to *807 gain more than that fee, or to charge the claimant a noncontingent fee, is a criminal offense. 42 U.S. C. 406(b)(2); 20 CFR 404.1740(c)(2) Most plausibly read, we conclude, 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, 406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.[15] Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits. 406(b)(1)(A) (1994 ed., Supp. V).[16] Within the 25 percent boundary, as petitioners in this case acknowledge, the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered. See Brief for Petitioners 40.[17] *808 Courts that approach fee determinations by looking first to the contingent-fee agreement, then testing it for reasonableness, have appropriately reduced the attorney's recovery based on the character of the representation and the results the representative achieved. See, e. g., McGuire, 873 F. 2d, at 983 ("Although the contingency agreement should be given significant weight in fixing a fee, a district judge must independently assess the reasonableness of its terms."); 7 F.2d 246, If the attorney is responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court. See Rodriquez, 865 F. 2d, at 746-747. If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order. See ; Wells, 907 F. 2d, at 372 (same). In this regard, the court may require the claimant's attorney to submit, not as a basis for satellite litigation, but as an aid to the court's assessment of the reasonableness of the fee yielded by the fee agreement, a record of the hours spent representing the claimant and a statement of the lawyer's normal hourly billing charge for noncontingent-fee cases. See Rodriquez, 865 F. 2d, at 741. Judges of our district courts are accustomed to making reasonableness determinations in a wide variety of contexts, and their assessments in such matters, in the event of an appeal, ordinarily qualify for highly respectful review. * * * The courts below erroneously read 406(b) to override customary attorney-client contingent-fee agreements. We hold that 406(b) does not displace contingent-fee agreements *809 within the statutory ceiling; instead, 406(b) instructs courts to review for reasonableness fees yielded by those agreements. Accordingly, we reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Scalia

dissenting

Gisbrecht v. Barnhart

2002-05-28

https://www.courtlistener.com/opinion/118512/gisbrecht-v-barnhart/

https://www.courtlistener.com/api/rest/v3/clusters/118512/

2001-054

I do not know what the judges of our district courts and courts of appeals are to make of today's opinion. I have no idea what the trial judge is to do if he finds the fee produced by the ("presumptively reasonable," ante, at 792) contingent-fee agreement to be 25% above the lodestar amount; or 40%; or 65%. Or what the appellate court is to do in an appeal from a district judge's reduction of the contingent fee to 300% of the lodestar amount; or 200%; or to the lodestar amount itself. While today's opinion gets this case out of our "in" box, it does nothing whatever to subject these fees to anything approximating a uniform rule of law. That is, I think, the inevitable consequence of trying to combine the incompatible. The Court tells the judge to commence his analysis with the contingent-fee agreement, but then to adjust the figure that agreement produces on the basis of factors (most notably, the actual time spent multiplied by a reasonable hourly rate, ante, at 808) that are, in a sense, the precise antithesis of the contingent-fee agreement, since it was the very purpose of that agreement to eliminate them from the fee calculation. In my view, the only possible way to give uniform meaning to the statute's "reasonable fee" provision is to understand it as referring to the fair value of the work actually performed, which we have held is best reflected by the lodestar.[1] See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). *810 I think it obvious that the reasonableness of a contingentfee arrangement has to be determined by viewing the matter ex ante, before the outcome of the lawsuit and the hours of work expended on the outcome are definitively known. For it is in the nature of a contingent-fee agreement to gamble on outcome and hours of work—assigning the risk of an unsuccessful outcome to the attorney, in exchange for a percentage of the recovery from a successful outcome that will (because of the risk of loss the attorney has borne) be higher, and perhaps much higher, than what the attorney would receive in hourly billing for the same case. That is why, in days when obtaining justice in the law courts was thought to be less of a sporting enterprise, contingent fees were unlawful. See, e. g., Butler v. Legro, 62 N. H. 350, 352 (1882) ("Agreements of this kind are contrary to public justice and professional duty, tend to extortion and fraud, and are champertous and void"). It is one thing to say that a contingent-fee arrangement is, ex ante, unreasonable because it gives the attorney a percentage of the recovery so high that no self-respecting legal system can tolerate it; the statute itself has made this determination for Social-Security-benefit cases, prescribing a maximum contingent fee of 25%. And one can also say that a contingent-fee arrangement is, ex ante, unreasonable because the chances of success in the particular case are so high, and the anticipated legal work so negligible, that the percentage of the recovery assured to the lawyer is exorbitant; but neither I nor the Court thinks that the "reasonable *811 fee" provision of the statute anticipates such a case-by-case ex post assessment of ex ante predictions in the thousands of (mostly small recovery) Social-Security-benefit cases. It is something quite different, however—and something quite irrational—to look at the consequences of a contingent-fee agreement after the contingencies have been resolved, and proclaim those consequences unreasonable because the attorney has received too much money for too little work. That is rather like declaring the purchase of the winning lottery ticket void because of the gross disparity between the $2 ticket price and the million-dollar payout.[2] I think, in other words, that the "reasonable fee" provision must require either an assessment of the reasonableness of the contingent-fee agreement when it was concluded, or an assessment of the reasonableness of the fee charged after the outcome and work committed to it are known; it cannot combine the two. And since an ex post assessment of the ex ante reasonableness of the contingent-fee agreement (already limited by statute to a maximum 25% of the recovery) is not what the statute could conceivably have contemplated, I conclude that a "reasonable fee" means not the reasonableness of the agreed-upon contingent fee, but a reasonable recompense for the work actually done. We have held that this is best calculated by applying the lodestar, *812 which focuses on the quality and amount of the legal work performed, and "provides an objective basis on which to . . . estimate . . . the value of a lawyer's services." Hensley, 461 U. S., at 433. This is less of a departure than the Court suggests from the normal practice of enforcing privately negotiated fee agreements. The fee agreements in these Social-Security cases are hardly negotiated; they are akin to adherence contracts. It is uncontested that the specialized Social-Security bar charges uniform contingent fees (the statutory maximum of 25%), which are presumably presented to the typically unsophisticated client on a take-it-or-leave-it basis. Nor does the statute's explicit approval of contingency-fee agreements at the agency stage, see 42 U.S. C. § 406(a) (1994 ed. and Supp. V), imply that contingency-fee agreements at the judicial-review stage should be regarded as presumptively reasonable. The agreements approved at the agency stage are limited not merely by a 25% maximum percentage of recovery, but also by a firm $5,300 maximum. With the latter limitation, there is no need to impose a reasonableness requirement. Once a reasonableness requirement is imposed, however, I think it can only refer to the reasonableness of the actual compensation. * * * Because I think there is no middle course between, on the one hand, determining the reasonableness of a contingent-fee agreement and, on the other hand, determining the reasonableness of the actual fee; because I think the statute's reference to a "reasonable fee" must connote the latter; and because I think the Court's hybrid approach establishes no clear criteria and hence will generate needless satellite litigation; I respectfully dissent.

I do not know what the judges of our district courts and courts of appeals are to make of today's opinion. I have no idea what the trial judge is to do if he finds the fee produced by the ("presumptively reasonable," ante, at 792) contingent-fee agreement to be 25% above the lodestar amount; or 40%; or 65%. Or what the appellate court is to do in an appeal from a district judge's reduction of the contingent fee to 300% of the lodestar amount; or 200%; or to the lodestar amount itself. While today's opinion gets this case out of our "in" box, it does nothing whatever to subject these fees to anything approximating a uniform rule of law. That is, I think, the inevitable consequence of trying to combine the incompatible. The Court tells the judge to commence his analysis with the contingent-fee agreement, but then to adjust the figure that agreement produces on the basis of factors (most notably, the actual time spent multiplied by a reasonable hourly rate, ante, at 808) that are, in a sense, the precise antithesis of the contingent-fee agreement, since it was the very purpose of that agreement to eliminate them from the fee calculation. In my view, the only possible way to give uniform meaning to the statute's "reasonable fee" provision is to understand it as referring to the fair value of the work actually performed, which we have held is best reflected by the lodestar.[1] See *810 I think it obvious that the reasonableness of a contingentfee arrangement has to be determined by viewing the matter ex ante, before the outcome of the lawsuit and the hours of work expended on the outcome are definitively known. For it is in the nature of a contingent-fee agreement to gamble on outcome and hours of work—assigning the risk of an unsuccessful outcome to the attorney, in exchange for a percentage of the recovery from a successful outcome that will (because of the risk of loss the attorney has borne) be higher, and perhaps much higher, than what the attorney would receive in hourly billing for the same case. That is why, in days when obtaining justice in the law courts was thought to be less of a sporting enterprise, contingent fees were unlawful. See, e. g., Butler v. Legro, 62 N. H. 350, 352 (1882) ("Agreements of this kind are contrary to public justice and professional duty, tend to extortion and fraud, and are champertous and void"). It is one thing to say that a contingent-fee arrangement is, ex ante, unreasonable because it gives the attorney a percentage of the recovery so high that no self-respecting legal system can tolerate it; the statute itself has made this determination for Social-Security-benefit cases, prescribing a maximum contingent fee of 25%. And one can also say that a contingent-fee arrangement is, ex ante, unreasonable because the chances of success in the particular case are so high, and the anticipated legal work so negligible, that the percentage of the recovery assured to the lawyer is exorbitant; but neither I nor the Court thinks that the "reasonable *811 fee" provision of the statute anticipates such a case-by-case ex post assessment of ex ante predictions in the thousands of (mostly small recovery) Social-Security-benefit cases. It is something quite different, however—and something quite irrational—to look at the consequences of a contingent-fee agreement after the contingencies have been resolved, and proclaim those consequences unreasonable because the attorney has received too much money for too little work. That is rather like declaring the purchase of the winning lottery ticket void because of the gross disparity between the $2 ticket price and the million-dollar payout.[2] I think, in other words, that the "reasonable fee" provision must require either an assessment of the reasonableness of the contingent-fee agreement when it was concluded, or an assessment of the reasonableness of the fee charged after the outcome and work committed to it are known; it cannot combine the two. And since an ex post assessment of the ex ante reasonableness of the contingent-fee agreement (already limited by statute to a maximum 25% of the recovery) is not what the statute could conceivably have contemplated, I conclude that a "reasonable fee" means not the reasonableness of the agreed-upon contingent fee, but a reasonable recompense for the work actually done. We have held that this is best calculated by applying the lodestar, *812 which focuses on the quality and amount of the legal work performed, and "provides an objective basis on which to estimate the value of a lawyer's services." Hensley, 461 U. S., at This is less of a departure than the Court suggests from the normal practice of enforcing privately negotiated fee agreements. The fee agreements in these Social-Security cases are hardly negotiated; they are akin to adherence contracts. It is uncontested that the specialized Social-Security bar charges uniform contingent fees (the statutory maximum of 25%), which are presumably presented to the typically unsophisticated client on a take-it-or-leave-it basis. Nor does the statute's explicit approval of contingency-fee agreements at the agency stage, see 42 U.S. C. 406(a) (1994 ed. and Supp. V), imply that contingency-fee agreements at the judicial-review stage should be regarded as presumptively reasonable. The agreements approved at the agency stage are limited not merely by a 25% maximum percentage of recovery, but also by a firm $5,300 maximum. With the latter limitation, there is no need to impose a reasonableness requirement. Once a reasonableness requirement is imposed, however, I think it can only refer to the reasonableness of the actual compensation. * * * Because I think there is no middle course between, on the one hand, determining the reasonableness of a contingent-fee agreement and, on the other hand, determining the reasonableness of the actual fee; because I think the statute's reference to a "reasonable fee" must connote the latter; and because I think the Court's hybrid approach establishes no clear criteria and hence will generate needless satellite litigation; I respectfully dissent.

Justice Ginsburg

majority

Amchem Products, Inc. v. Windsor

1997-06-25

https://www.courtlistener.com/opinion/118142/amchem-products-inc-v-windsor/

https://www.courtlistener.com/api/rest/v3/clusters/118142/

1996-089

This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class-action certification sought to achieve global settlement of current and future asbestos-related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tied together by this commonality: Each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here. The United States District Court for the Eastern District of Pennsylvania certified the class for settlement only, finding that the proposed settlement was fair and that representation and notice had been adequate. That court enjoined class members from separately pursuing asbestos-related personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court of Appeals for the Third Circuit vacated the District Court's orders, holding that the class certification failed to satisfy Rule 23's requirements in several critical respects. We affirm the Court of Appeals' judgment. I A The settlement-class certification we confront evolved in response to an asbestos-litigation crisis. See Georgine v. Amchem Products, Inc., 83 F.3d 610, 618, and n. 2 (CA3 1996) (citing commentary). A United States Judicial Conference *598 Ad Hoc Committee on Asbestos Litigation, appointed by The Chief Justice in September 1990, described facets of the problem in a 1991 report: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015. "The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991). Real reform, the report concluded, required federal legislation creating a national asbestos dispute-resolution scheme. See id., at 3, 27-35; see also id., at 42 (dissenting statement of Hogan, J.) (agreeing that "a national solution is the only answer" and suggesting "passage by Congress of an administrative claims procedure similar to the Black Lung legislation"). As recommended by the Ad Hoc Committee, the Judicial Conference of the United States urged Congress to act. See Report of the Proceedings of the Judicial Conference of the United States 33 (Mar. 12, 1991). To this date, no congressional response has emerged. *599 In the face of legislative inaction, the federal courts—lacking authority to replace state tort systems with a national toxic tort compensation regime—endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos cases, urged the Judicial Panel on Multidistrict Litigation (MDL Panel), to consolidate in a single district allasbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos cases then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected cases were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415, 422-424 (JPML 1991).[1] The order aggregated pending cases only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed. B After the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations. Ronald L. Motley and Gene Locks—later appointed, along with Motley's law partner Joseph F. Rice, to represent the plaintiff class in this action— cochaired the Plaintiffs' Steering Committee. Counsel for the Center for Claims Resolution (CCR), the consortium of *600 20 former asbestos manufacturers now before us as petitioners, participated in the Defendants' Steering Committee.[2] Although the MDL Panel order collected, transferred, and consolidated only cases already commenced in federal courts, settlement negotiations included efforts to find a "means of resolving . . . future cases." Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see also Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266 (ED Pa. 1994) ("primary purpose of the settlement talks in the consolidated MDL litigation was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims," including claims that might be filed in the future). In November 1991, the Defendants' Steering Committee made an offer designed to settle all pending and future asbestos cases by providing a fund for distribution by plaintiffs' counsel among asbestos-exposed individuals. The Plaintiffs' Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue "a workable administrative system for the handling of future claims." Id., at 270. To that end, CCR counsel approached the lawyers who had headed the Plaintiffs' Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs' Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims—claimants the parties *601 to this suit call "inventory" plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory cases absent "some kind of protection for the future." Id., at 294; see also id. , at 295 (CCR communicated to the inventory plaintiffs' attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending cases). Settlement talks thus concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants. Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs, CCR agreed to settle, through separate agreements, the claims of plaintiffs who had already filed asbestos-related lawsuits. In one such agreement, CCR defendants promised to pay more than $200 million to gain release of the claims of numerous inventory plaintiffs. After settling the inventory claims, CCR, together with the plaintiffs' lawyers CCR had approached, launched this case, exclusively involving persons outside the MDL Panel's province—plaintiffs without already pending lawsuits.[3] C The class action thus instituted was not intended to be litigated. Rather, within the space of a single day, January 15, 1993, the settling parties—CCR defendants and the representatives of the plaintiff class described below—presented to the District Court a complaint, an answer, a proposed *602 settlement agreement, and a joint motion for conditional class certification.[4] The complaint identified nine lead plaintiffs, designating them and members of their families as representatives of a class comprising all persons who had not filed an asbestosrelated lawsuit against a CCR defendant as of the date the class action commenced, but who (1) had been exposed— occupationally or through the occupational exposure of a spouse or household member—to asbestos or products containing asbestos attributable to a CCR defendant, or (2) whose spouse or family member had been so exposed.[5] Untold numbers of individuals may fall within this description. All named plaintiffs alleged that they or a member of their family had been exposed to asbestos-containing products of *603 CCR defendants. More than half of the named plaintiffs alleged that they or their family members had already suffered various physical injuries as a result of the exposure. The others alleged that they had not yet manifested any asbestos-related condition. The complaint delineated no subclasses; all named plaintiffs were designated as representatives of the class as a whole. The complaint invoked the District Court's diversity jurisdiction and asserted various state-law claims for relief, including (1) negligent failure to warn, (2) strict liability, (3) breach of express and implied warranty, (4) negligent infliction of emotional distress, (5) enhanced risk of disease, (6) medical monitoring, and (7) civil conspiracy. Each plaintiff requested unspecified damages in excess of $100,000. CCR defendants' answer denied the principal allegations of the complaint and asserted 11 affirmative defenses. A stipulation of settlement accompanied the pleadings; it proposed to settle, and to preclude nearly all class members from litigating against CCR companies, all claims not filed before January 15, 1993, involving compensation for present and future asbestos-related personal injury or death. An exhaustive document exceeding 100 pages, the stipulation presents in detail an administrative mechanism and a schedule of payments to compensate class members who meet defined asbestos-exposure and medical requirements. The stipulation describes four categories of compensable disease: mesothelioma; lung cancer; certain "other cancers" (colonrectal, laryngeal, esophageal, and stomach cancer); and "non-malignant conditions" (asbestosis and bilateral pleural thickening). Persons with "exceptional" medical claims— claims that do not fall within the four described diagnostic categories—may in some instances qualify for compensation, but the settlement caps the number of "exceptional" claims CCR must cover. For each qualifying disease category, the stipulation specifies the range of damages CCR will pay to qualifying claimants. *604 Payments under the settlement are not adjustable for inflation. Mesothelioma claimants—the most highly compensated category—are scheduled to receive between $20,000 and $200,000. The stipulation provides that CCR is to propose the level of compensation within the prescribed ranges; it also establishes procedures to resolve disputes over medical diagnoses and levels of compensation. Compensation above the fixed ranges may be obtained for "extraordinary" claims. But the settlement places both numerical caps and dollar limits on such claims.[6] The settlement also imposes "case flow maximums," which cap the number of claims payable for each disease in a given year. Class members are to receive no compensation for certain kinds of claims, even if otherwise applicable state law recognizes such claims. Claims that garner no compensation under the settlement include claims by family members of asbestos-exposed individuals for loss of consortium, and claims by so-called "exposure-only" plaintiffs for increased risk of cancer, fear of future asbestos-related injury, and medical monitoring. "Pleural" claims, which might be asserted by persons with asbestos-related plaques on their lungs but no accompanying physical impairment, are also excluded. Although not entitled to present compensation, exposure-only claimants and pleural claimants may qualify for benefits when and if they develop a compensable disease and meet the relevant exposure and medical criteria. Defendants forgo defenses to liability, including statute of limitations pleas. Class members, in the main, are bound by the settlement in perpetuity, while CCR defendants may choose to withdraw *605 from the settlement after ten years. A small number of class members—only a few per year—may reject the settlement and pursue their claims in court. Those permitted to exercise this option, however, may not assert any punitive damages claim or any claim for increased risk of cancer. Aspects of the administration of the settlement are to be monitored by the AFL—CIO and class counsel. Class counsel are to receive attorneys' fees in an amount to be approved by the District Court. D On January 29, 1993, as requested by the settling parties, the District Court conditionally certified, under Federal Rule of Civil Procedure 23(b)(3), an encompassing opt-out class. The certified class included persons occupationally exposed to defendants' asbestos products, and members of their families, who had not filed suit as of January 15. Judge Weiner appointed Locks, Motley, and Rice as class counsel, noting that "[t]he Court may in the future appoint additional counsel if it is deemed necessary and advisable." Record, Doc. 11, p. 3 (Class Certification Order). At no stage of the proceedings, however, were additional counsel in fact appointed. Nor was the class ever divided into subclasses. In a separate order, Judge Weiner assigned to Judge Reed, also of the Eastern District of Pennsylvania, "the task of conducting fairness proceedings and of determining whether the proposed settlement is fair to the class." See 157 F. R. D., at 258. Various class members raised objections to the settlement stipulation, and Judge Weiner granted the objectors full rights to participate in the subsequent proceedings. Ibid.[7] *606 In preliminary rulings, Judge Reed held that the District Court had subject-matter jurisdiction, see Carlough v. Amchem Products, Inc., 834 F. Supp. 1437, 1467-1468 (ED Pa. 1993), and he approved the settling parties' elaborate plan for giving notice to the class, see Carlough v. Amchem Products, Inc., 158 F. R. D. 314, 336 (ED Pa. 1993). The courtapproved notice informed recipients that they could exclude themselves from the class, if they so chose, within a threemonth opt-out period. Objectors raised numerous challenges to the settlement. They urged that the settlement unfairly disadvantaged those without currently compensable conditions in that it failed to adjust for inflation or to account for changes, over time, in medical understanding. They maintained that compensation levels were intolerably low in comparison to awards available in tort litigation or payments received by the inventory plaintiffs. And they objected to the absence of any compensation for certain claims, for example, medical monitoring, compensable under the tort law of several States. Rejecting these and all other objections, Judge Reed concluded that the settlement terms were fair and had been negotiated without collusion. See 157 F. R. D., at 325, 331-332. He also found that adequate notice had been given to class members, see id., at 332-334, and that final class certification under Rule 23(b)(3) was appropriate, see id., at 315. As to the specific prerequisites to certification, the District Court observed that the class satisfied Rule 23(a)(1)'s numerosity requirement,[8] see ibid., a matter no one debates. The *607 Rule 23(a)(2) and (b)(3) requirements of commonality[9] and preponderance[10] were also satisfied, the District Court held, in that "[t]he members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system. Whether the proposed settlement satisfies this interest and is otherwise a fair, reasonable and adequate compromise of the claims of the class is a predominant issue for purposes of Rule 23(b)(3)." Id., at 316. The District Court held next that the claims of the class representatives were "typical" of the class as a whole, a requirement of Rule 23(a)(3),[11] and that, as Rule 23(b)(3) demands,[12] the class settlement was "superior" to other methods of adjudication. See ibid. Strenuous objections had been asserted regarding the adequacy of representation, a Rule 23(a)(4) requirement.[13] Objectors maintained that class counsel and class representatives had disqualifying conflicts of interests. In particular, objectors urged, claimants whose injuries had become manifest and claimants without manifest injuries should not have common counsel and should not be aggregated in a single *608 class. Furthermore, objectors argued, lawyers representing inventory plaintiffs should not represent the newly formed class. Satisfied that class counsel had ably negotiated the settlement in the best interests of all concerned, and that the named parties served as adequate representatives, the District Court rejected these objections. See id., at 317-319, 326-332. Subclasses were unnecessary, the District Court held, bearing in mind the added cost and confusion they would entail and the ability of class members to exclude themselves from the class during the three-month opt-out period. See id., at 318-319. Reasoning that the representative plaintiffs "have a strong interest that recovery for all of the medical categories be maximized because they may have claims in any, or several categories," the District Court found "no antagonism of interest between class members with various medical conditions, or between persons with and without currently manifest asbestos impairment." Id. , at 318. Declaring class certification appropriate and the settlement fair, the District Court preliminarily enjoined all class members from commencing any asbestos-related suit against the CCR defendants in any state or federal court. See Georgine v. Amchem Products, Inc., 878 F. Supp. 716, 726-727 (ED Pa. 1994). The objectors appealed. The United States Court of Appeals for the Third Circuit vacated the certification, holding that the requirements of Rule 23 had not been satisfied. See 83 F.3d 610 (1996). E The Court of Appeals, in a long, heavily detailed opinion by Judge Becker, first noted several challenges by objectors to justiciability, subject-matter jurisdiction, and adequacy of notice. These challenges, the court said, raised "serious concerns." Id., at 623. However, the court observed, "the jurisdictional issues in this case would not exist but for the [class-action] certification." Ibid. Turning to the classcertification *609 issues and finding them dispositive, the Third Circuit declined to decide other questions. On class-action prerequisites, the Court of Appeals referred to an earlier Third Circuit decision, In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, cert. denied, 516 U.S. 824 (1995) (hereinafter GM Trucks), which held that although a class action may be certified for settlement purposes only, Rule 23(a)'s requirements must be satisfied as if the case were going to be litigated. 55 F.3d, at 799-800. The same rule should apply, the Third Circuit said, to class certification under Rule 23(b)(3). See 83 F.3d, at 625. But cf.In re Asbestos Litigation, 90 F.3d 963, 975-976, and n. 8 (CA5 1996), cert. pending, Nos. 96-1379, 96-1394. While stating that the requirements of Rule 23(a) and (b)(3) must be met "without taking into account the settlement," 83 F.3d, at 626, the Court of Appeals in fact closely considered the terms of the settlement as it examined aspects of the case under Rule 23 criteria. See id., at 630-634. The Third Circuit recognized that Rule 23(a)(2)'s "commonality" requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class "predominate over" other questions. The court therefore trained its attention on the "predominance" inquiry. See id., at 627. The harmfulness of asbestos exposure was indeed a prime factor common to the class, the Third Circuit observed. See id., at 626, 630. But uncommon questions abounded. In contrast to mass torts involving a single accident, class members in this case were exposed to different asbestoscontaining products, in different ways, over different periods, and for different amounts of time; some suffered no physical injury, others suffered disabling or deadly diseases. See id., at 626, 628. "These factual differences," the Third Circuit explained, "translate[d] into significant legal differences." Id., at 627. State law governed and varied widely *610 on such critical issues as "viability of [exposure-only] claims [and] availability of causes of action for medical monitoring, increased risk of cancer, and fear of future injury." Ibid.[14] "[T]he number of uncommon issues in this humongous class action," the Third Circuit concluded, ibid., barred a determination, under existing tort law, that common questions predominated, see id., at 630. The Court of Appeals next found that "serious intra-class conflicts preclude[d] th[e] class from meeting the adequacy of representation requirement" of Rule 23(a)(4). Ibid. Adverting to, but not resolving charges of attorney conflict of interests, the Third Circuit addressed the question whether the named plaintiffs could adequately advance the interests of all class members. The Court of Appeals acknowledged that the District Court was certainly correct to this extent: "`[T]he members of the class are united in seeking the maximum possible recovery for their asbestos-related claims.' " Ibid. (quoting 157 F. R. D., at 317). "But the settlement does more than simply provide a general recovery fund," the Court of Appeals immediately added; "[r]ather, it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs, decisions that necessarily favor some claimants over others." 83 F.3d, at 630. In the Third Circuit's view, the "most salient" divergence of interests separated plaintiffs already afflicted with an asbestos-related disease from plaintiffs without manifest injury (exposure-only plaintiffs). The latter would rationally want protection against inflation for distant recoveries. See ibid. They would also seek sturdy back-end opt-out rights and "causation provisions that can keep pace with changing *611 science and medicine, rather than freezing in place the science of 1993." Id., at 630-631. Already injured parties, in contrast, would care little about such provisions and would rationally trade them for higher current payouts. See id., at 631. These and other adverse interests, the Court of Appeals carefully explained, strongly suggested that an undivided set of representatives could not adequately protect the discrete interests of both currently afflicted and exposureonly claimants. The Third Circuit next rejected the District Court's determination that the named plaintiffs were "typical" of the class, noting that this Rule 23(a)(3) inquiry overlaps the adequacy of representation question: "both look to the potential for conflicts in the class." Id., at 632. Evident conflict problems, the court said, led it to hold that "no set of representatives can be `typical' of this class." Ibid. The Court of Appeals similarly rejected the District Court's assessment of the superiority of the class action. The Third Circuit initially noted that a class action so large and complex "could not be tried." Ibid. The court elaborated most particularly, however, on the unfairness of binding exposure-only plaintiffs who might be unaware of the class action or lack sufficient information about their exposure to make a reasoned decision whether to stay in or opt out. See id., at 633. "A series of statewide or more narrowly defined adjudications, either through consolidation under Rule 42(a) or as class actions under Rule 23, would seem preferable," the Court of Appeals said. Id., at 634. The Third Circuit, after intensive review, ultimately ordered decertification of the class and vacation of the District Court's antisuit injunction. Id., at 635. Judge Wellford concurred, "fully subscrib[ing] to the decision of Judge Becker that the plaintiffs in this case ha[d] not met the requirements of Rule 23." Ibid. He added that in his view, named exposure-only plaintiffs had no standing to pursue the *612 suit in federal court, for their depositions showed that "[t]hey claimed no damages and no present injury." Id., at 638. We granted certiorari, 519 U.S. 957 (1996), and now affirm. II Objectors assert in this Court, as they did in the District Court and Court of Appeals, an array of jurisdictional barriers. Most fundamentally, they maintain that the settlement proceeding instituted by class counsel and CCR is not a justiciable case or controversy within the confines of Article III of the Federal Constitution. In the main, they say, the proceeding is a nonadversarial endeavor to impose on countless individuals without currently ripe claims an administrative compensation regime binding on those individuals if and when they manifest injuries. Furthermore, objectors urge that exposure-only claimants lack standing to sue: Either they have not yet sustained any cognizable injury or, to the extent the complaint states claims and demands relief for emotional distress, enhanced risk of disease, and medical monitoring, the settlement provides no redress. Objectors also argue that exposureonly claimants did not meet the then-current amount-incontroversy requirement (in excess of $50,000) specified for federal-court jurisdiction based upon diversity of citizenship. See 28 U.S. C. § 1332(a). As earlier recounted, see supra, at 608, the Third Circuit declined to reach these issues because they "would not exist but for the [class-action] certification." 83 F.3d, at 623. We agree that "[t]he class certification issues are dispositive," ibid.; because their resolution here is logically antecedent to the existence of any Article III issues, it is appropriate to reach them first, cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997) (declining to resolve definitively question whether petitioners had standing because mootness issue was dispositive of the case). We therefore follow the path taken by the Court of Appeals, mindful that *613 Rule 23's requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure "shall not abridge, enlarge or modify any substantive right," 28 U.S. C. § 2072(b). See also Fed. Rule Civ. Proc. 82 ("rules shall not be construed to extend . . . the [subject-matter] jurisdiction of the United States district courts").[15] III To place this controversy in context, we briefly describe the characteristics of class actions for which the Federal Rules provide. Rule 23, governing federal-court class actions, stems from equity practice and gained its current shape in an innovative 1966 revision. See generally Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 375-400 (1967) (hereinafter Kaplan, Continuing Work). Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a "class [so large] that joinder of all members is impracticable"); (2) commonality ("questions of law or fact common to the class"); (3) typicality (named parties' claims or defenses "are typical . . . of the class"); and (4) adequacy of representation (representatives "will fairly and adequately protect the interests of the class"). *614 In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(1) covers cases in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class," Fed. Rule Civ. Proc. 23(b)(1)(A), or would "as a practical matter be dispositive of the interests" of nonparty class members "or substantially impair or impede their ability to protect their interests," Rule 23(b)(1)(B). Rule 23(b)(1)(A) "takes in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners)." Kaplan, Continuing Work 388 (footnotes omitted). Rule 23(b)(1)(B) includes, for example, "limited fund" cases, instances in which numerous persons make claims against a fund insufficient to satisfy all claims. See Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., pp. 696-697 (hereinafter Adv. Comm. Notes). Rule 23(b)(2) permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class." Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples. Adv. Comm. Notes, 28 U.S. C. App., p. 697; see Kaplan, Continuing Work 389 (subdivision (b)(2) "build[s] on experience mainly, but not exclusively, in the civil rights field"). In the 1966 class-action amendments, Rule 23(b)(3), the category at issue here, was "the most adventuresome" innovation. See Kaplan, A Prefatory Note, 10 Barb. C. Ind. & Com. L. Rev. 497, 497 (1969) (hereinafter Kaplan, Prefatory Note). Rule 23(b)(3) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be *615 excluded. See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1777, p. 517 (2d ed. 1986) (hereinafter Wright, Miller, & Kane); see generally Kaplan, Continuing Work 379-400. Rule 23(b)(3) "opt-out" class actions superseded the former "spurious" class action, so characterized because it generally functioned as a permissive joinder ("opt-in") device. See 7A Wright, Miller, & Kane § 1753, at 28-31, 42-44; see also Adv. Comm. Notes, 28 U.S. C. App., p. 695. Framed for situations in which "class-action treatment is not as clearly called for" as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit "may nevertheless be convenient and desirable." Adv. Comm. Notes, 28 U.S. C. App., p. 697. To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must "predominate over any questions affecting only individual members"; and class resolution must be "superior to other available methods for the fair and efficient adjudication of the controversy." In adding "predominance" and "superiority" to the qualification-for-certification list, the Advisory Committee sought to cover cases "in which a class action would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Ibid. Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systemic efficiency on the other, the Reporter for the 1966 amendments cautioned: "The new provision invites a close look at the case before it is accepted as a class action. . . ." Kaplan, Continuing Work 390. Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court's "close look" at the predominance and superiority criteria: *616 "(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action." In setting out these factors, the Advisory Committee for the 1966 reform anticipated that in each case, courts would "consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit." Adv. Comm. Notes, 28 U.S. C. App., p. 698. They elaborated: "The interests of individuals in conducting separate lawsuits may be so strong as to callfor denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable." Ibid. See also Kaplan, Continuing Work 391 ("Th[e] interest [in individual control] can be high where the stake of each member bulks large and his will and ability to take care of himself are strong; the interest may be no more than theoretic where the individual stake is so small as to make a separate action impracticable." (footnote omitted)). As the Third Circuit observed in the instant case: "Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his case]"; each "ha[s] a substantial stake in making individual decisions on whether and when to settle." 83 F.3d, at 633. *617 While the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high, the Advisory Committee had dominantly in mind vindication of "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." Kaplan, Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion: "The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor." Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997). To alert class members to their right to "opt out" of a (b)(3) class, Rule 23 instructs the court to "direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. Rule Civ. Proc. 23(c)(2); see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173-177 (1974) (individual notice to class members identifiable through reasonable effort is mandatory in (b)(3) actions; requirement may not be relaxed based on high cost). No class action may be "dismissed or compromised without [court] approval," preceded by notice to class members. Fed. Rule Civ. Proc. 23(e). The Advisory Committee's sole comment on this terse final provision of Rule 23 restates the Rule's instruction without elaboration: "Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action." Adv. Comm. Notes, 28 U.S. C. App., p. 699. In the decades since the 1966 revision of Rule 23, classaction practice has become ever more "adventuresome" as a means of coping with claims too numerous to secure their *618 "just, speedy, and inexpensive determination" one by one. See Fed. Rule Civ. Proc. 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compensate claimants who do not line up early in a litigation queue. See generally J. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices (1995); Schwarzer, Settlement of Mass Tort Class Actions: Order out of Chaos, 80 Cornell L. Rev. 837 (1995). Among current applications of Rule 23(b)(3), the "settlement only" class has become a stock device. See, e. g., T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 61-62 (1996) (noting large number of such cases in districts studied). Although all Federal Circuits recognize the utility of Rule 23(b)(3) settlement classes, courts have divided on the extent to which a proffered settlement affects court surveillance under Rule 23's certification criteria. In GM Trucks, 55 F. 3d, at 799-800, and in the instant case, 83 F.3d, at 624-626, the Third Circuit held that a class cannot be certified for settlement when certification for trial would be unwarranted. Other courts have held that settlement obviates or reduces the need to measure a proposed class against the enumerated Rule 23 requirements. See, e. g., In re Asbestos Litigation, 90 F.3d, at 975 (CA5) ("in settlement class context, common issues arise from the settlement itself") (citing H. Newberg & A. Conte, 2 Newberg on Class Actions § 11.28, p. 11-58 (3d ed. 1992)); White v. National Football League, 41 F.3d 402, 408 (CA8 1994) ("adequacy of class representation . . . is ultimately determined by the settlement itself"), cert. denied, 515 U.S. 1137 (1995); In re A. H. Robins Co., 880 F.2d 709, 740 (CA4) ("[i]f not a ground for certification per se, certainly settlement should be a factor, and an important factor, to be considered when determining certification"), cert. denied sub nom. Anderson *619 v. Aetna Casualty & Surety Co., 493 U.S. 959 (1989); Malchman v. Davis, 761 F.2d 893, 900 (CA2 1985) (certification appropriate, in part, because "the interests of the members of the broadened class in the settlement agreement were commonly held"), cert. denied, 475 U.S. 1143 (1986). A proposed amendment to Rule 23 would expressly authorize settlement class certification, in conjunction with a motion by the settling parties for Rule 23(b)(3) certification, "even though the requirements of subdivision (b)(3) might not be met for purposes of trial." Proposed Amendment to Fed. Rule Civ. Proc. 23(b), 117 S. Ct. No. 1 CXIX, CLIV to CLV (Aug. 1996) (Request for Comment). In response to the publication of this proposal, voluminous public comments—many of them opposed to, or skeptical of, the amendment—were received by the Judicial Conference Standing Committee on Rules of Practice and Procedure. See, e. g., Letter from Steering Committee to Oppose Proposed Rule 23, signed by 129 law professors (May 28, 1996); Letter from Paul D. Carrington (May 21, 1996). The Committee has not yet acted on the matter. We consider the certification at issue under the Rule as it is currently framed. IV We granted review to decide the role settlement may play, under existing Rule 23, in determining the propriety of class certification. The Third Circuit's opinion stated that each of the requirements of Rule 23(a) and (b)(3) "must be satisfied without taking into account the settlement." 83 F.3d, at 626 (quoting GM Trucks, 55 F. 3d, at 799). That statement, petitioners urge, is incorrect. We agree with petitioners to this limited extent: Settlement is relevant to a class certification. The Third Circuit's opinion bears modification in that respect. But, as we earlier observed, see supra, at 609, the Court of Appeals in fact did not ignore the settlement; instead, that court homed in on settlement terms in explaining why it found the absentees' *620 interests inadequately represented. See 83 F.3d, at 630— 631. The Third Circuit's close inspection of the settlement in that regard was altogether proper. Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. But other specifications of the Rule— those designed to protect absentees by blocking unwarranted or overbroad class definitions—demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 23(c), (d).[16] And, of overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U.S. C. §§ 2073, 2074. The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure "shall not abridge . . . any substantive right." § 2072(b). Rule 23(e), on settlement of class actions, reads in its entirety: "A class action shall not be dismissed or compromised *621 without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." This prescription was designed to function as an additional requirement, not a superseding direction, for the "class action" to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. Eisen, 417 U. S., at 176-177 (adequate representation does not eliminate additional requirement to provide notice). Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed. The safeguards provided by the Rule 23(a) and (b) classqualifying criteria, we emphasize, are not impractical impediments—checks shorn of utility—in the settlement-class context. First, the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor's foot kind—class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness. Second, if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer, see Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1379-1380 (1995), and the court would face a bargain proffered for its approval without benefit of adversarial investigation, see, e. g., Kamilewicz v. Bank of Boston Corp., 100 F.3d 1348, 1352 (CA7 1996) (Easterbrook, J., dissenting from denial of rehearing en banc) (parties "may even put one over on the court, in a staged performance"), cert. denied, 520 U.S. 1204 (1997). *622 Federal courts, in any case, lack authority to substitute for Rule 23's certification criteria a standard never adopted— that if a settlement is "fair," then certification is proper. Applying to this case criteria the rulemakers set, we conclude that the Third Circuit's appraisal is essentially correct. Although that court should have acknowledged that settlement is a factor in the calculus, a remand is not warranted on that account. The Court of Appeals' opinion amply demonstrates why—with or without a settlement on the table— the sprawling class the District Court certified does not satisfy Rule 23's requirements.[17] A We address first the requirement of Rule 23(b)(3) that "[common] questions of law or fact . . . predominate over any questions affecting only individual members." The District Court concluded that predominance was satisfied based on two factors: class members' shared experience of asbestos exposure and their common "interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., at 316. The settling parties also contend that the settlement's fairness is a common question, predominating over disparate legal issues that might be pivotal in litigation but become irrelevant under the settlement. The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, see supra, *623 at 598, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement.[18] The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See 7A Wright, Miller, & Kane 518— 519.[19] The inquiry appropriate under Rule 23(e), on the other hand, protects unnamed class members "from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise." See 7B Wright, Miller, & Kane § 1797, at 340-341. But it is not the mission of Rule 23(e) to assure the class cohesion that legitimizes representative action in the first place. If a common interest in a fair compromise could satisfy the predominance requirement of Rule 23(b)(3), that vital prescription would be stripped of any meaning in the settlement context. The District Court also relied upon this commonality: "The members of the class have all been exposed to asbestos products supplied by the defendants . . . ." 157 F. R. D., at 316. Even if Rule 23(a)'s commonality requirement may be satisfied *624 by that shared experience, the predominance criterion is far more demanding. See 83 F.3d, at 626-627. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard. The Third Circuit highlighted the disparate questions undermining class cohesion in this case: "Class members were exposed to different asbestoscontaining products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only a symptomatic plural changes, while others suffer from lung cancer, disabling asbestos is, or from mesothelioma . . . . Each has a different history of cigarette smoking, a factor that complicates the causation inquiry. "The [exposure-only] plaintiffs especially share little in common, either with each other or with the presently injured class members. It is unclear whether they will contract asbestos-related disease and, if so, what disease each will suffer. They will also incur different medical expenses because their monitoring and treatment will depend on singular circumstances and individual medical histories." Id., at 626. Differences in state law, the Court of Appeals observed, compound these disparities. See id., at 627 (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 823 (1985)). No settlement class called to our attention is as sprawling as this one. Cf. In re Asbestos Litigation, 90 F. 3d, at 976, n. 8 ("We would likely agree with the Third Circuit that a class action requesting individual damages for members of a global class of asbestos claimants would not satisfy [Rule 23] requirements due to the huge number of individuals and *625 their varying medical expenses, smoking histories, and family situations."). Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. See Adv. Comm. Notes, 28 U.S. C. App., p. 697; see also supra, at 615, 616. Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that "mass accident" cases are likely to present "significant questions, not only of damages but of liability and defenses of liability, . . . affecting the individuals in different ways." Adv. Comm. Notes, 28 U.S. C. App., p. 697. And the Committee advised that such cases are "ordinarily not appropriate" for class treatment. Ibid. But the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970's, have been certifying such cases in increasing number. See Resnik, From "Cases" to "Litigation," 54 Law & Contemp. Prob. 5, 17-19 (Summer 1991) (describing trend). The Committee's warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit's opinion makes plain, the certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)'s predominance requirement irreconcilable with the Rule's design. B Nor can the class approved by the District Court satisfy Rule 23(a)(4)'s requirement that the named parties "will fairly and adequately protect the interests of the class." The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-158, n. 13 (1982). "[A] class representative must be part of the class and `possess *626 the same interest and suffer the same injury' as the class members." East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)).[20] As the Third Circuit pointed out, named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Cf. General Telephone Co. of Northwest v. EEOC, 446 U.S. 318, 331 (1980) ("In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes."). The disparity between the currently injured and exposure-only categories of plaintiffs, and the diversity within each category are not made insignificant by the District Court's finding that petitioners' assets suffice to pay claims under the settlement. See 157 F. R. D., at 291. Although *627 this is not a "limited fund" case certified under Rule 23(b)(1)(B), the terms of the settlement reflect essential allocation decisions designed to confine compensation and to limit defendants' liability. For example, as earlier described, see supra, at 604-605, the settlement includes no adjustment for inflation; only a few claimants per year can opt out at the back end; and loss-of-consortium claims are extinguished with no compensation. The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point: "[W]here differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups." In re Joint Eastern and South- ern Dist. Asbestos Litigation, 982 F.2d 721, 742-743 (1992), modified on reh'g sub nom. In re Findley, 993 F.2d 7 (1993). The Third Circuit found no assurance here—either in the terms of the settlement or in the structure of the negotiations—that the named plaintiffs operated under a proper understanding of their representational responsibilities. See *628 83 F. 3d, at 630-631. That assessment, we conclude, is on the mark. C Impediments to the provision of adequate notice, the Third Circuit emphasized, rendered highly problematic any endeavor to tie to a settlement class persons with no perceptible asbestos-related disease at the time of the settlement. Id., at 633; cf. In re Asbestos Litigation, 90 F. 3d, at 999-1000 (Smith, J., dissenting). Many persons in the exposure-only category, the Court of Appeals stressed, may not even know of their exposure, or realize the extent of the harm they may incur. Even if they fully appreciate the significance of class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out. Family members of asbestos-exposed individuals may themselves fall prey to disease or may ultimately have ripe claims for loss of consortium. Yet large numbers of people in this category—future spouses and children of asbestos victims—could not be alerted to their class membership. And current spouses and children of the occupationally exposed may know nothing of that exposure. Because we have concluded that the class in this case cannot satisfy the requirements of common issue predominance and adequacy of representation, we need not rule, definitively, on the notice given here. In accord with the Third Circuit, however, see 83 F.3d, at 633-634, we recognize the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous. V The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos *629 exposure.[21] Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. As this case exemplifies, the rulemakers' prescriptions for class actions may be endangered by "those who embrace [Rule 23] too enthusiastically just as [they are by] those who approach [the Rule] with distaste." C. Wright, Law of Federal Courts 508 (5th ed. 1994); cf.83 F. 3d, at 634 (suggesting resort to less bold aggregation techniques, including more narrowly defined class certifications). * * * For the reasons stated, the judgment of the Court of Appeals for the Third Circuit is Affirmed. Justice O'Connor took no part in the consideration or decision of this case. Justice Breyer, with whom Justice Stevens joins, concurring in part and dissenting in part. Although I agree with the Court's basic holding that "[s]ettlement is relevant to a class certification," ante, at 619, I find several problems in its approach that lead me to a different conclusion. First, I believe that the need for settlement in this mass tort case, with hundreds of thousands of lawsuits, is greater than the Court's opinion suggests. Second, I would give more weight than would the majority to settlement-related issues for purposes of determining whether common issues predominate. Third, I am uncertain about the Court's determination of adequacy of representation, *630 and do not believe it appropriate for this Court to second-guess the District Court on the matter without first having the Court of Appeals consider it. Fourth, I am uncertain about the tenor of an opinion that seems to suggest the settlement is unfair. And fifth, in the absence of further review by the Court of Appeals, I cannot accept the majority's suggestions that "notice" is inadequate. These difficulties flow from the majority's review of what are highly fact-based, complex, and difficult matters, matters that are inappropriate for initial review before this Court. The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion. See Califano v. Yamasaki, 442 U.S. 682, 703 (1979). Indeed, the District Court's certification decision rests upon more than 300 findings of fact reached after five weeks of comprehensive hearings. Accordingly, I do not believe that we should in effect set aside the findings of the District Court. That court is far more familiar with the issues and litigants than is a court of appeals or are we, and therefore has "broad power and discretion . . . with respect to matters involving the certification" of class actions. Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979); cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990) (district court better situated to make fact-dependent legal determinations in Rule 11 context). I do not believe that we can rely upon the Court of Appeals' review of the District Court record, for that review, and its ultimate conclusions, are infected by a legal error. E. g., Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 (CA3 1996) (holding that "considered as a litigation class, " the class cannot meet Federal Rule of Civil Procedure 23's requirements (emphasis added)). There is no evidence that the Court of Appeals at any point considered the settlement as something that would help the class meet Rule 23. I find, moreover, the fact-related issues presented here sufficiently *631 close to warrant further detailed appellate court review under the correct legal standard. Cf. Reno v. Bossier Parish School Bd., 520 U.S. 471, 486 (1997). And I shall briefly explain why this is so. I First, I believe the majority understates the importance of settlement in this case. Between 13 and 21 million workers have been exposed to asbestos in the workplace—over the past 40 or 50 years—but the most severe instances of such exposure probably occurred three or four decades ago. See Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation, pp. 6-7 (Mar. 1991) (Judicial Conference Report); App. 781-782, 801; B. Castleman, Asbestos: Medical and Legal Aspects 787-788 (4th ed. 1996). This exposure has led to several hundred thousand lawsuits, about 15% of which involved claims for cancer and about 30% for asbestos is. See In re Joint Eastern and Southern Dist. Asbestos Litigation, 129 B.R. 710, 936-937 (E and SD N. Y. 1991). About half of the suits have involved claims for plural thickening and plaques—the harmfulness of which is apparently controversial. (One expert below testified that they "don't transform into cancer" and are not "predictor[s] of future disease," App. 781.) Some of those who suffer from the most serious injuries, however, have received little or no compensation. In re School Asbestos Litigation, 789 F.2d 996, 1000 (CA3 1986); see also Edley & Weiler, Asbestos: A MultiBillion-Dollar Crisis, 30 Harv. J. Legis. 383, 384, 393 (1993) ("[U]p to one-half of asbestos claims are now being filed by people who have little or no physical impairment. Many of these claims produce substantial payments (and substantial costs) even though the individual litigants will never become impaired"). These lawsuits have taken up more than 6% of all federal civil filings in one recent year, and are subject to a delay that is twice that of other civil suits. Judicial Conference Report 7, 10-11. *632 Delays, high costs, and a random pattern of noncompensation led the Judicial Conference Ad Hoc Committee on Asbestos Litigation to transfer all federal asbestos personalinjury cases to the Eastern District of Pennsylvania in an effort to bring about a fair and comprehensive settlement. It is worth considering a few of the Committee's comments. See Judicial Conference Report 2 ("`Decisions concerning thousands of deaths, millions of injuries, and billions of dollars are entangled in a litigation system whose strengths have increasingly been overshadowed by its weaknesses.' The ensuing five years have seen the picture worsen: increased filings, larger backlogs, higher costs, more bankruptcies and poorer prospects that judgments—if ever obtained—can be collected" (quoting Rand Corporation Institute for Civil Justice)); id., at 13 ("The transaction costs associated with asbestos litigation are an unconscionable burden on the victims of asbestos disease." "[O]f each asbestos litigation dollar, 61 cents is consumed in transaction costs . . . . Only 39 cents were paid to the asbestos victims" (citing Rand finding)); id., at 12 ("Delays also can increase transaction costs, especially the attorneys' fees paid by defendants at hourly rates. These costs reduce either the insurance fund or the company's assets, thereby reducing the funds available to pay pending and future claimants. By the end of the trial phase in [one case], at least seven defendants had declared bankruptcy (as a result of asbestos claims generally")); see also J. Weinstein, Individual Justice in Mass Tort Litigation 155 (1995); Edley & Weiler, supra, at 389-395. Although the transfer of the federal asbestos cases did not produce a general settlement, it was intertwined with and led to a lengthy year-long negotiation between the cochairs of the Plaintiff's Multi-District Litigation Steering Committee (elected by the Plaintiff's Committee Members and approved by the District Court) and the 20 asbestos defendants who are before us here. Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266-267 (ED Pa. 1994); App. 660-662. *633 These "protracted and vigorous" negotiations led to the present partial settlement, which will pay an estimated $1.3 billion and compensate perhaps 100,000 class members in the first 10 years. 157 F. R. D., at 268, 287. "The negotiations included a substantial exchange of information" between class counsel and the 20 defendant companies, including "confidential data" showing the defendants' historical settlement averages, numbers of claims filed and settled, and insurance resources. Id., at 267. "Virtually no provision" of the settlement "was not the subject of significant negotiation," and the settlement terms "changed substantially" during the negotiations. Ibid. In the end, the negotiations produced a settlement that, the District Court determined based on its detailed review of the process, was "the result of armslength adversarial negotiations by extraordinarily competent and experienced attorneys." Id., at 335. The District Court, when approving the settlement, concluded that it improved the plaintiffs' chances of compensation and reduced total legal fees and other transaction costs by a significant amount. Under the previous system, according to the court, "[t]he sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease." Ibid. The court believed the settlement would create a compensation system that would make more money available for plaintiffs who later develop serious illnesses. I mention this matter because it suggests that the settlement before us is unusual in terms of its importance, both to many potential plaintiffs and to defendants, and with respect to the time, effort, and expenditure that it reflects. All of which leads me to be reluctant to set aside the District Court's findings without more assurance than I have that they are wrong. I cannot obtain that assurance through comprehensive review of the record because that is properly the job of the Court of Appeals and that court, understandably, but as we now hold, mistakenly, believed that settlement *634 was not a relevant (and, as I would say, important) consideration. Second, the majority, in reviewing the District Court's determination that common "issues of fact and law predominate," says that the predominance "inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement." Ante, at 623 (footnote omitted). I find it difficult to interpret this sentence in a way that could lead me to the majority's conclusion. If the majority means that these presettlement questions are what matters, then how does it reconcile its statement with its basic conclusion that "settlement is relevant" to class certification, or with the numerous lower court authority that says that settlement is not only relevant, but important? See, e. g., In re A. H. Robins Co., 880 F.2d 709, 740 (CA4), cert. denied sub nom. Anderson v. Aetna Casualty & Surety Co., 493 U.S. 959 (1989); In re Beef Industry Antitrust Litigation, 607 F.2d 167, 177— 178 (CA5 1979), cert. denied sub nom. Iowa Beef Processors, Inc. v. Meat Price Investigators Assn., 452 U.S. 905 (1981); 2 H. Newberg & A. Conte, Newberg on Class Actions § 11.27, pp. 11-54 to 11-55 (3d ed. 1992). Nor do I understand how one could decide whether common questions "predominate" in the abstract—without looking at what is likely to be at issue in the proceedings that will ensue, namely, the settlement. Every group of human beings, after all, has some features in common, and some that differ. How can a court make a contextual judgment of the sort that Rule 23 requires without looking to what proceedings will follow? Such guideposts help it decide whether, in light of common concerns and differences, certification will achieve Rule 23's basic objective—"economies of time, effort, and expense." Advisory Committee's Notes on Fed. Rule Civ. Proc. 23(b)(3), 28 U.S. C. App., p. 697. As this Court has previously observed, "sometimes it may be necessary for the court to probe behind the pleadings before coming to *635 rest on the certification question." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); see also 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1785, p. 107, and n. 34 (1986). I am not saying that the "settlement counts only one way." Ante, at 620, n. 16. Rather, the settlement may simply "add a great deal of information to the court's inquiry and will often expose diverging interests or common issues that were not evident or clear from the complaint" and courts "can and should" look to it to enhance the "ability . . . to make informed certification decisions." In re Asbestos Litigation, 90 F.3d 963, 975 (CA5 1996). The majority may mean that the District Court gave too much weight to the settlement. But I am not certain how it can reach that conclusion. It cannot rely upon the Court of Appeals, for that court gave no positive weight at all to the settlement. Nor can it say that the District Court relied solely on "a common interest in a fair compromise," ante, at 623, for the District Court did not do so. Rather, it found the settlement relevant because it explained the importance of the class plaintiffs' common features and common interests. The court found predominance in part because: "The members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., at 316. The settlement is relevant because it means that these common features and interests are likely to be important in the proceeding that would ensue—a proceeding that would focus primarily upon whether or not the proposed settlement fairly and properly satisfied the interests class members had in common. That is to say, the settlement underscored the importance *636 of (a) the common fact of exposure, (b) the common interest in receiving some compensation for certain rather than running a strong risk of no compensation, and (c) the common interest in avoiding large legal fees, other transaction costs, and delays. Ibid. Of course, as the majority points out, there are also important differences among class members. Different plaintiffs were exposed to different products for different times; each has a distinct medical history and a different history of smoking; and many cases arise under the laws of different States. The relevant question, however, is how much these differences matter in respect to the legal proceedings that lie ahead. Many, if not all, toxic tort class actions involve plaintiffs with such differences. And the differences in state law are of diminished importance in respect to a proposed settlement in which the defendants have waived all defenses and agreed to compensate all those who were injured. Id., at 292. These differences might warrant subclasses, though subclasses can have problems of their own. "There can be a cost in creating more distinct subgroups, each with its own representation. . . . [T]he more subclasses created, the more severe conflicts bubble to the surface and inhibit settlement.. . . The resources of defendants and, ultimately, the community must not be exhausted by protracted litigation." Weinstein, Individual Justice in Mass Tort Litigation, at 66. Or these differences may be too serious to permit an effort at group settlement. This kind of determination, as I have said, is one that the law commits to the discretion of the district court—reviewable for abuse of discretion by a court of appeals. I believe that we are far too distant from the litigation itself to reweigh the fact-specific Rule 23 determinations and to find them erroneous without the benefit of the Court of Appeals first having restudied the matter with today's legal standard in mind. *637 Third, the majority concludes that the "representative parties" will not "fairly and adequately protect the interests of the class." Rule 23(a)(4). It finds a serious conflict between plaintiffs who are now injured and those who may be injured in the future because "for the currently injured, the critical goal is generous immediate payments," a goal that "tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future." Ante, at 626. I agree that there is a serious problem, but it is a problem that often exists in toxic tort cases. See Weinstein, supra, at 64 (noting that conflict "between present and future claimants" "is almost always present in some form in mass tort cases because long latency periods are needed to discover injuries"); see also Judicial Conference Report 34-35 ("Because many of the defendants in these cases have limited assets that may be called upon to satisfy the judgments obtained under current common tort rules and remedies, there is a `real and present danger that the available assets will be exhausted before those later victims can seek compensation to which they are entitled' " (citation omitted)). And it is a problem that potentially exists whenever a single defendant injures several plaintiffs, for a settling plaintiff leaves fewer assets available for the others. With class actions, at least, plaintiffs have the consolation that a district court, thoroughly familiar with the facts, is charged with the responsibility of ensuring that the interests of no class members are sacrificed. But this Court cannot easily safeguard such interests through review of a cold record. "What constitutes adequate representation is a question of fact that depends on the circumstances of each case." 7A Wright, Miller, & Kane, Federal Practice and Procedure § 1765, at 271. That is particularly so when, as here, there is an unusual baseline, namely, the "`real and present danger' " described by the Judicial Conference Report above. The majority's use of the *638 lack of an inflation adjustment as evidence of inadequacy of representation for future plaintiffs, ante, at 626-627, is one example of this difficulty. An inflation adjustment might not be as valuable as the majority assumes if most plaintiffs are old and not worried about receiving compensation decades from now. There are, of course, strong arguments as to its value. But that disagreement is one that this Court is poorly situated to resolve. Further, certain details of the settlement that are not discussed in the majority opinion suggest that the settlement may be of greater benefit to future plaintiffs than the majority suggests. The District Court concluded that future plaintiffs receive a "significant value" from the settlement due to a variety of its items that benefit future plaintiffs, such as: (1) tolling the statute of limitations so that class members "will no longer be forced to file premature lawsuits or risk their claims being time-barred"; (2) waiver of defenses to liability; (3) payment of claims, if and when members become sick, pursuant to the settlement's compensation standards, which avoids "the uncertainties, long delays and high transaction costs [including attorney's fees] of the tort system"; (4) "some assurance that there will be funds available if and when they get sick," based on the finding that each defendant "has shown an ability to fund the payment of all qualifying claims" under the settlement; and (5) the right to additional compensation if cancer develops (many settlements for plaintiffs with noncancerous conditions bar such additional claims). 157 F. R. D., at 292. For these reasons, and others, the District Court found that the distinction between present and future plaintiffs was "illusory." Id., at 317-318. I do not know whether or not the benefits are more or less valuable than an inflation adjustment. But I can certainly recognize an argument that they are. (To choose one more brief illustration, the majority chastises the settlement for extinguishing loss-of-consortium claims, ante, at 627, 628, but *639 does not note that, as the District Court found, the "defendants' historical [settlement] averages, upon which the compensation values are based, include payments for loss of consortium claims, and, accordingly, the Compensation Schedule is not unfair for this ascribed reason," 157 F. R. D., at 278.) The difficulties inherent in both knowing and understanding the vast number of relevant individual fact-based determinations here counsel heavily in favor of deference to district court decisionmaking in Rule 23 decisions. Or, at the least, making certain that appellate court review has taken place with the correct standard in mind. Fourth, I am more agnostic than is the majority about the basic fairness of the settlement. Ante, at 625-628. The District Court's conclusions rested upon complicated factual findings that are not easily cast aside. It is helpful to consider some of them, such as its determination that the settlement provided "fair compensation . . . while reducing the delays and transaction costs endemic to the asbestos litigation process" and that "the proposed class action settlement is superior to other available methods for the fair and efficient resolution of the asbestos-related personal injury claims of class members." 157 F. R. D., at 316 (citation omitted); see also id., at 335 ("The inadequate tort system has demonstrated that the lawyers are well paid for their services but the victims are not receiving speedy and reasonably inexpensive resolution of their claims. Rather, the victims' recoveries are delayed, excessively reduced by transaction costs and relegated to the impersonal group trials and mass consolidations. The sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease. Indeed, these unimpaired victims have, in many states, been forced to assert their claims prematurely or risk giving up all rights to future compensation for any future lung cancer or mesothelioma. The plan which this Court approves today will correct that unfair result for the class members and the . . . defendants"); *640 id., at 279, 280 (settlement "will result in less delay for asbestos claimants than that experienced in the present tort system" and will "result in the CCR defendants paying more claims at a faster rate, than they have ever paid before"); id., at 292; Edley & Weiler, 30 Harv. J. Legis., at 405, 407 (finding that "[t]here are several reasons to believe that this settlement secures important gains for both sides" and that they "firmly endorse the fairness and adequacy of this settlement"). Indeed, the settlement has been endorsed as fair and reasonable by the AFL—CIO (and its Building and Construction Trades Department), which represents a "`substantial percentage' " of class members, 157 F. R. D., at 325, and which has a role in monitoring implementation of the settlement, id., at 285. I do not intend to pass judgment upon the settlement's fairness, but I do believe that these matters would have to be explored in far greater depth before I could reach a conclusion about fairness. And that task, as I have said, is one for the Court of Appeals. Finally, I believe it is up to the District Court, rather than this Court, to review the legal sufficiency of notice to members of the class. The District Court found that the plan to provide notice was implemented at a cost of millions of dollars and included hundreds of thousands of individual notices, a wide-ranging television and print campaign, and significant additional efforts by 35 international and national unions to notify their members. Id., at 312-313, 336. Every notice emphasized that an individual did not currently have to be sick to be a class member. And in the end, the District Court was "confident" that Rule 23 and due process requirements were satisfied because, as a result of this "extensive and expensive notice procedure," "over six million" individuals "received actual notice materials," and "millions more" were reached by the media campaign. Id., at 312, 333, 336. Although the majority, in principle, is reviewing a Court of Appeals' conclusion, it seems to me that its opinion might call into question the fact-related determinations of the District *641 Court. Ante, at 628. To the extent that it does so, I disagree, for such findings cannot be so quickly disregarded. And I do not think that our precedents permit this Court to do so. See Reiter, 442 U. S., at 345; Yamasaki, 442 U. S., at 703. II The issues in this case are complicated and difficult. The District Court might have been correct. Or not. Subclasses might be appropriate. Or not. I cannot tell. And I do not believe that this Court should be in the business of trying to make these fact-based determinations. That is a job suited to the district courts in the first instance, and the courts of appeals on review. But there is no reason in this case to believe that the Court of Appeals conducted its prior review with an understanding that the settlement could have constituted a reasonably strong factor in favor of class certification. For this reason, I would provide the courts below with an opportunity to analyze the factual questions involved in certification by vacating the judgment, and remanding the case for further proceedings.

This concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class-action certification sought to achieve global settlement of current and future asbestos-related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tied together by this commonality: Each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here. The United States District Court for the Eastern District of Pennsylvania certified the class for settlement only, finding that the proposed settlement was fair and that representation and notice had been adequate. That court enjoined class members from separately pursuing asbestos-related personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court of Appeals for the Third Circuit vacated the District Court's orders, holding that the class certification failed to satisfy Rule 23's requirements in several critical respects. We affirm the Court of Appeals' judgment. I A The settlement-class certification we confront evolved in response to an asbestos-litigation crisis. See A United States Judicial Conference *598 Ad Hoc Committee on Asbestos appointed by The Chief Justice in September 1990, described facets of the problem in a report: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015. "The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." Report of The Judicial Conference Ad Hoc Committee on Asbestos 2-3 Real reform, the report concluded, required federal legislation creating a national asbestos dispute-resolution scheme. See ; see (agreeing that "a national solution is the only answer" and suggesting "passage by Congress of an administrative claims procedure similar to the Black Lung legislation"). As recommended by the Ad Hoc Committee, the Judicial Conference of the United States urged Congress to act. See Report of the Proceedings of the Judicial Conference of the United States 33 To this date, no congressional response has emerged. *599 In the face of legislative inaction, the federal courts—lacking authority to replace state tort systems with a national toxic tort compensation regime—endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos s, urged the Judicial Panel on Multidistrict (MDL Panel), to consolidate in a single district allasbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos s then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected s were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability (No. VI),[1] The order aggregated pending s only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed. B After the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations. Ronald L. Motley and Gene Locks—later appointed, along with Motley's law partner Joseph F. Rice, to represent the plaintiff class in this action— cochaired the Plaintiffs' Steering Committee. Counsel for the Center for Claims Resolution (CCR), the consortium of *600 20 former asbestos manufacturers now before us as petitioners, participated in the Defendants' Steering Committee.[2] Although the MDL Panel order collected, transferred, and consolidated only s already commenced in federal courts, settlement negotiations included efforts to find a "means of resolving future s." Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see 157 F. R. D. 246, 266 ("primary purpose of the settlement talks in the consolidated MDL litigation was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims," including claims that might be filed in the future). In November the Defendants' Steering Committee made an offer designed to settle all pending and future asbestos s by providing a fund for distribution by plaintiffs' counsel among asbestos-exposed individuals. The Plaintiffs' Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue "a workable administrative system for the handling of future claims." To that end, CCR counsel approached the lawyers who had headed the Plaintiffs' Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs' Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims—claimants the parties *601 to this suit call "inventory" plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory s absent "some kind of protection for the future." ; see at 295 (CCR communicated to the inventory plaintiffs' attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending s). Settlement talks thus concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants. Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs, CCR agreed to settle, through separate agreements, the claims of plaintiffs who had already filed asbestos-related lawsuits. In one such agreement, CCR defendants promised to pay more than $200 million to gain release of the claims of numerous inventory plaintiffs. After settling the inventory claims, CCR, together with the plaintiffs' lawyers CCR had approached, launched this exclusively involving persons outside the MDL Panel's province—plaintiffs without already pending lawsuits.[3] C The class action thus instituted was not intended to be Rather, within the space of a single day, January 15, the settling parties—CCR defendants and the representatives of the plaintiff class described below—presented to the District Court a complaint, an answer, a proposed *602 settlement agreement, and a joint motion for conditional class certification.[4] The complaint identified nine lead plaintiffs, designating them and members of their families as representatives of a class comprising all persons who had not filed an asbestosrelated lawsuit against a CCR defendant as of the date the class action commenced, but who (1) had been exposed— occupationally or through the occupational exposure of a spouse or household member—to asbestos or products containing asbestos attributable to a CCR defendant, or (2) whose spouse or family member had been so exposed.[5] Untold numbers of individuals may fall within this description. All named plaintiffs alleged that they or a member of their family had been exposed to asbestos-containing products of *603 CCR defendants. More than half of the named plaintiffs alleged that they or their family members had already suffered various physical injuries as a result of the exposure. The others alleged that they had not yet manifested any asbestos-related condition. The complaint delineated no subclasses; all named plaintiffs were designated as representatives of the class as a whole. The complaint invoked the District Court's diversity jurisdiction and asserted various state-law claims for relief, including (1) negligent failure to warn, (2) strict liability, (3) breach of express and implied warranty, (4) negligent infliction of emotional distress, (5) enhanced risk of disease, (6) medical monitoring, and (7) civil conspiracy. Each plaintiff requested unspecified damages in excess of $100,000. CCR defendants' answer denied the principal allegations of the complaint and asserted 11 affirmative defenses. A stipulation of settlement accompanied the pleadings; it proposed to settle, and to preclude nearly all class members from litigating against CCR companies, all claims not filed before January 15, involving compensation for present and future asbestos-related personal injury or death. An exhaustive document exceeding 100 pages, the stipulation presents in detail an administrative mechanism and a schedule of payments to compensate class members who meet defined asbestos-exposure and medical requirements. The stipulation describes four categories of compensable disease: mesothelioma; lung cancer; certain "other cancers" (colonrectal, laryngeal, esophageal, and stomach cancer); and "non-malignant conditions" (asbestosis and bilateral pleural thickening). Persons with "exceptional" medical claims— claims that do not fall within the four described diagnostic categories—may in some instances qualify for compensation, but the settlement caps the number of "exceptional" claims CCR must cover. For each qualifying disease category, the stipulation specifies the range of damages CCR will pay to qualifying claimants. *604 Payments under the settlement are not adjustable for inflation. Mesothelioma claimants—the most highly compensated category—are scheduled to receive between $20,000 and $200,000. The stipulation provides that CCR is to propose the level of compensation within the prescribed ranges; it establishes procedures to resolve disputes over medical diagnoses and levels of compensation. Compensation above the fixed ranges may be obtained for "extraordinary" claims. But the settlement places both numerical caps and dollar limits on such claims.[6] The settlement imposes " flow maximums," which cap the number of claims payable for each disease in a given year. Class members are to receive no compensation for certain kinds of claims, even if otherwise applicable state law recognizes such claims. Claims that garner no compensation under the settlement include claims by family members of asbestos-exposed individuals for loss of consortium, and claims by so-called "exposure-only" plaintiffs for increased risk of cancer, fear of future asbestos-related injury, and medical monitoring. "Pleural" claims, which might be asserted by persons with asbestos-related plaques on their lungs but no accompanying physical impairment, are excluded. Although not entitled to present compensation, exposure-only claimants and pleural claimants may qualify for benefits when and if they develop a compensable disease and meet the relevant exposure and medical criteria. Defendants forgo defenses to liability, including statute of limitations pleas. Class members, in the main, are bound by the settlement in perpetuity, while CCR defendants may choose to withdraw *605 from the settlement after ten years. A small number of class members—only a few per year—may reject the settlement and pursue their claims in court. Those permitted to exercise this option, however, may not assert any punitive damages claim or any claim for increased risk of cancer. Aspects of the administration of the settlement are to be monitored by the AFL—CIO and class counsel. Class counsel are to receive attorneys' fees in an amount to be approved by the District Court. D On January 29, as requested by the settling parties, the District Court conditionally certified, under Federal Rule of Civil Procedure 23(b)(3), an encompassing opt-out class. The certified class included persons occupationally exposed to defendants' asbestos products, and members of their families, who had not filed suit as of January 15. Judge Weiner appointed Locks, Motley, and Rice as class counsel, noting that "[t]he Court may in the future appoint additional counsel if it is deemed necessary and advisable." Record, Doc. 11, p. 3 (Class Certification Order). At no stage of the proceedings, however, were additional counsel in fact appointed. Nor was the class ever divided into subclasses. In a separate order, Judge Weiner assigned to Judge Reed, of the Eastern District of Pennsylvania, "the task of conducting fairness proceedings and of determining whether the proposed settlement is fair to the class." See 157 F. R. D., at 258. Various class members raised objections to the settlement stipulation, and Judge Weiner granted the objectors full rights to participate in the subsequent proceedings. Ib[7] *606 In preliminary rulings, Judge Reed held that the District Court had subject-matter jurisdiction, see and he approved the settling parties' elaborate plan for giving notice to the class, see 158 F. R. D. 314, 336 The courtapproved notice informed recipients that they could exclude themselves from the class, if they so chose, within a threemonth opt-out period. Objectors raised numerous challenges to the settlement. They urged that the settlement unfairly disadvantaged those without currently compensable conditions in that it failed to adjust for inflation or to account for changes, over time, in medical understanding. They maintained that compensation levels were intolerably low in comparison to awards available in tort litigation or payments received by the inventory plaintiffs. And they objected to the absence of any compensation for certain claims, for example, medical monitoring, compensable under the tort law of several States. Rejecting these and all other objections, Judge Reed concluded that the settlement terms were fair and had been negotiated without collusion. See 157 F. R. D., at 325, -332. He found that adequate notice had been given to class members, see and that final class certification under Rule 23(b)(3) was appropriate, see As to the specific prerequisites to certification, the District Court observed that the class satisfied Rule 23(a)(1)'s numerosity requirement,[8] see ib a matter no one debates. The *607 Rule 23(a)(2) and (b)(3) requirements of commonality[9] and preponderance[10] were satisfied, the District Court held, in that "[t]he members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system. Whether the proposed settlement satisfies this interest and is otherwise a fair, reasonable and adequate compromise of the claims of the class is a predominant issue for purposes of Rule 23(b)(3)." The District Court held next that the claims of the class representatives were "typical" of the class as a whole, a requirement of Rule 23(a)(3),[11] and that, as Rule 23(b)(3) demands,[12] the class settlement was "superior" to other methods of adjudication. See ib Strenuous objections had been asserted regarding the adequacy of representation, a Rule 23(a)(4) requirement.[13] Objectors maintained that class counsel and class representatives had disqualifying conflicts of interests. In particular, objectors urged, claimants whose injuries had become manifest and claimants without manifest injuries should not have common counsel and should not be aggregated in a single *608 class. Furthermore, objectors argued, lawyers representing inventory plaintiffs should not represent the newly formed class. Satisfied that class counsel had ably negotiated the settlement in the best interests of all concerned, and that the named parties served as adequate representatives, the District Court rejected these objections. See Subclasses were unnecessary, the District Court held, bearing in mind the added cost and confusion they would entail and the ability of class members to exclude themselves from the class during the three-month opt-out period. See Reasoning that the representative plaintiffs "have a strong interest that recovery for all of the medical categories be maximized because they may have claims in any, or several categories," the District Court found "no antagonism of interest between class members with various medical conditions, or between persons with and without currently manifest asbestos impairment." at 318. Declaring class certification appropriate and the settlement fair, the District Court preliminarily enjoined all class members from commencing any asbestos-related suit against the CCR defendants in any state or federal court. See The objectors appealed. The United States Court of Appeals for the Third Circuit vacated the certification, holding that the requirements of Rule 23 had not been satisfied. See E The Court of Appeals, in a long, heavily detailed opinion by Judge Becker, first noted several challenges by objectors to justiciability, subject-matter jurisdiction, and adequacy of notice. These challenges, the court said, raised "serious concerns." However, the court observed, "the jurisdictional issues in this would not exist but for the [class-action] certification." Ib Turning to the classcertification *609 issues and finding them dispositive, the Third Circuit declined to decide other questions. On class-action prerequisites, the Court of Appeals referred to an earlier Third Circuit decision, In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability which held that although a class action may be certified for settlement purposes only, Rule 23(a)'s requirements must be satisfied as if the were going to be -800. The same rule should apply, the Third Circuit said, to class certification under Rule 23(b)(3). See But cf.In re Asbestos cert. pending, Nos. 96-1379, 96-1394. While stating that the requirements of Rule 23(a) and (b)(3) must be met "without taking into account the settlement," the Court of Appeals in fact closely considered the terms of the settlement as it examined aspects of the under Rule 23 criteria. See The Third Circuit recognized that Rule 23(a)(2)'s "commonality" requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class "predominate over" other questions. The court therefore trained its attention on the "predominance" inquiry. See The harmfulness of asbestos exposure was indeed a prime factor common to the class, the Third Circuit observed. See But uncommon questions abounded. In contrast to mass torts involving a single accident, class members in this were exposed to different asbestoscontaining products, in different ways, over different periods, and for different amounts of time; some suffered no physical injury, others suffered disabling or deadly diseases. See "These factual differences," the Third Circuit explained, "translate[d] into significant legal differences." State law governed and varied widely *610 on such critical issues as "viability of [exposure-only] claims [and] availability of causes of action for medical monitoring, increased risk of cancer, and fear of future injury." Ib[14] "[T]he number of uncommon issues in this humongous class action," the Third Circuit concluded, ib barred a determination, under existing tort law, that common questions predominated, see The Court of Appeals next found that "serious intra-class conflicts preclude[d] th[e] class from meeting the adequacy of representation requirement" of Rule 23(a)(4). Ib Adverting to, but not resolving charges of attorney conflict of interests, the Third Circuit addressed the question whether the named plaintiffs could adequately advance the interests of all class members. The Court of Appeals acknowledged that the District Court was certainly correct to this extent: "`[T]he members of the class are united in seeking the maximum possible recovery for their asbestos-related claims.' " Ib "But the settlement does more than simply provide a general recovery fund," the Court of Appeals immediately added; "[r]ather, it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs, decisions that necessarily favor some claimants over others." 83 F.3d, In the Third Circuit's view, the "most salient" divergence of interests separated plaintiffs already afflicted with an asbestos-related disease from plaintiffs without manifest injury (exposure-only plaintiffs). The latter would rationally want protection against inflation for distant recoveries. See ib They would seek sturdy back-end opt-out rights and "causation provisions that can keep pace with changing *611 science and medicine, rather than freezing in place the science of" -631. Already injured parties, in contrast, would care little about such provisions and would rationally trade them for higher current payouts. See These and other adverse interests, the Court of Appeals carefully explained, strongly suggested that an undivided set of representatives could not adequately protect the discrete interests of both currently afflicted and exposureonly claimants. The Third Circuit next rejected the District Court's determination that the named plaintiffs were "typical" of the class, noting that this Rule 23(a)(3) inquiry overlaps the adequacy of representation question: "both look to the potential for conflicts in the class." Evident conflict problems, the court said, led it to hold that "no set of representatives can be `typical' of this class." Ib The Court of Appeals similarly rejected the District Court's assessment of the superiority of the class action. The Third Circuit initially noted that a class action so large and complex "could not be tried." Ib The court elaborated most particularly, however, on the unfairness of binding exposure-only plaintiffs who might be unaware of the class action or lack sufficient information about their exposure to make a reasoned decision whether to stay in or opt out. See "A series of statewide or more narrowly defined adjudications, either through consolidation under Rule 42(a) or as class actions under Rule 23, would seem preferable," the Court of Appeals sa The Third Circuit, after intensive review, ultimately ordered decertification of the class and vacation of the District Court's antisuit injunction. Judge Wellford concurred, "fully subscrib[ing] to the decision of Judge Becker that the plaintiffs in this ha[d] not met the requirements of Rule 23." Ib He added that in his view, named exposure-only plaintiffs had no standing to pursue the *612 suit in federal court, for their depositions showed that "[t]hey claimed no damages and no present injury." We granted certiorari, and now affirm. II Objectors assert in this Court, as they did in the District Court and Court of Appeals, an array of jurisdictional barriers. Most fundamentally, they maintain that the settlement proceeding instituted by class counsel and CCR is not a justiciable or controversy within the confines of Article III of the Federal Constitution. In the main, they say, the proceeding is a nonadversarial endeavor to impose on countless individuals without currently ripe claims an administrative compensation regime binding on those individuals if and when they manifest injuries. Furthermore, objectors urge that exposure-only claimants lack standing to sue: Either they have not yet sustained any cognizable injury or, to the extent the complaint states claims and demands relief for emotional distress, enhanced risk of disease, and medical monitoring, the settlement provides no redress. Objectors argue that exposureonly claimants did not meet the then-current amount-incontroversy requirement (in excess of $50,000) specified for federal-court jurisdiction based upon diversity of citizenship. See 28 U.S. C. 1332(a). As earlier recounted, see the Third Circuit declined to reach these issues because they "would not exist but for the [class-action] certification." 83 F.3d, We agree that "[t]he class certification issues are dispositive," ib; because their resolution here is logically antecedent to the existence of any Article III issues, it is appropriate to reach them first, cf. Arizonans for Official We therefore follow the path taken by the Court of Appeals, mindful that *613 Rule 23's requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure "shall not abridge, enlarge or modify any substantive right," 28 U.S. C. 2072(b). See Fed. Rule Civ. Proc. 82 ("rules shall not be construed to extend the [subject-matter] jurisdiction of the United States district courts").[15] III To place this controversy in context, we briefly describe the characteristics of class actions for which the Federal Rules provide. Rule 23, governing federal-court class actions, stems from equity practice and gained its current shape in an innovative 1966 revision. See generally Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a "class [so large] that joinder of all members is impracticable"); (2) commonality ("questions of law or fact common to the class"); (3) typicality (named parties' claims or defenses "are typical of the class"); and (4) adequacy of representation (representatives "will fairly and adequately protect the interests of the class"). *614 In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(1) covers s in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class," Fed. Rule Civ. Proc. 23(b)(1)(A), or would "as a practical matter be dispositive of the interests" of nonparty class members "or substantially impair or impede their ability to protect their interests," Rule 23(b)(1)(B). Rule 23(b)(1)(A) "takes in s where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners)." Kaplan, Continuing Work 388 (footnotes omitted). Rule 23(b)(1)(B) includes, for example, "limited fund" s, instances in which numerous persons make claims against a fund insufficient to satisfy all claims. See Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., pp. 696-697 (hereinafter Adv. Comm. Notes). Rule 23(b)(2) permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class." Civil rights s against parties charged with unlawful, class-based discrimination are prime examples. Adv. Comm. Notes, 28 U.S. C. App., p. 697; see Kaplan, Continuing Work 389 (subdivision (b)(2) "build[s] on experience mainly, but not exclusively, in the civil rights field"). In the 1966 class-action amendments, Rule 23(b)(3), the category at issue here, was "the most adventuresome" innovation. See Kaplan, A Prefatory Note, 10 Barb. C. Ind. & Com. L. Rev. 497, 497 (1969) (hereinafter Kaplan, Prefatory Note). Rule 23(b)(3) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be *615 excluded. See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1777, p. 517 (hereinafter Wright, Miller, & Kane); see generally Kaplan, Continuing Work 379-400. Rule 23(b)(3) "opt-out" class actions superseded the former "spurious" class action, so characterized because it generally functioned as a permissive joinder ("opt-in") device. See 7A Wright, Miller, & Kane 1753, at 28-31, 42-44; see Adv. Comm. Notes, 28 U.S. C. App., p. 695. Framed for situations in which "class-action treatment is not as clearly called for" as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit "may nevertheless be convenient and desirable." Adv. Comm. Notes, 28 U.S. C. App., p. 697. To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must "predominate over any questions affecting only individual members"; and class resolution must be "superior to other available methods for the fair and efficient adjudication of the controversy." In adding "predominance" and "superiority" to the qualification-for-certification list, the Advisory Committee sought to cover s "in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Ib Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systemic efficiency on the other, the Reporter for the 1966 amendments cautioned: "The new provision invites a close look at the before it is accepted as a class action." Kaplan, Continuing Work 390. Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court's "close look" at the predominance and superiority criteria: *616 "(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action." In setting out these factors, the Advisory Committee for the 1966 reform anticipated that in each courts would "consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit." Adv. Comm. Notes, 28 U.S. C. App., p. 698. They elaborated: "The interests of individuals in conducting separate lawsuits may be so strong as to callfor denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable." Ib See Kaplan, Continuing Work 391 ("Th[e] interest [in individual control] can be high where the stake of each member bulks large and his will and ability to take care of himself are strong; the interest may be no more than theoretic where the individual stake is so small as to make a separate action impracticable." (footnote omitted)). As the Third Circuit observed in the instant : "Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his ]"; each "ha[s] a substantial stake in making individual decisions on whether and when to settle." 83 F.3d, *617 While the text of Rule 23(b)(3) does not exclude from certification s in which individual damages run high, the Advisory Committee had dominantly in mind vindication of "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." Kaplan, Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion: "The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor." To alert class members to their right to "opt out" of a (b)(3) class, Rule 23 instructs the court to "direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. Rule Civ. Proc. 23(c)(2); see No class action may be "dismissed or compromised without [court] approval," preceded by notice to class members. Fed. Rule Civ. Proc. 23(e). The Advisory Committee's sole comment on this terse final provision of Rule 23 restates the Rule's instruction without elaboration: "Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action." Adv. Comm. Notes, 28 U.S. C. App., p. 699. In the decades since the 1966 revision of Rule 23, classaction practice has become ever more "adventuresome" as a means of coping with claims too numerous to secure their * "just, speedy, and inexpensive determination" one by one. See Fed. Rule Civ. Proc. 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compensate claimants who do not line up early in a litigation queue. See generally J. Individual Justice in Mass Tort : The Effect of Class Actions, Consolidations, and Other Multiparty Devices ; Schwarzer, Settlement of Mass Tort Class Actions: Order out of Chaos, Among current applications of Rule 23(b)(3), the "settlement only" class has become a stock device. See, e. g., T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 61-62 (noting large number of such s in districts studied). Although all Federal Circuits recognize the utility of Rule 23(b)(3) settlement classes, courts have divided on the extent to which a proffered settlement affects court surveillance under Rule 23's certification criteria. In GM -800, and in the instant -, the Third Circuit held that a class cannot be certified for settlement when certification for trial would be unwarranted. Other courts have held that settlement obviates or reduces the need to measure a proposed class against the enumerated Rule 23 requirements. See, e. g., In re Asbestos ("in settlement class context, common issues arise from the settlement itself") ); cert. denied, ; In re A. H. Robins Co., (CA4) ("[i]f not a ground for certification per se, certainly settlement should be a factor, and an important factor, to be considered when determining certification"), cert. denied sub nom. Anderson ; cert. denied, A proposed amendment to Rule 23 would expressly authorize settlement class certification, in conjunction with a motion by the settling parties for Rule 23(b)(3) certification, "even though the requirements of subdivision (b)(3) might not be met for purposes of trial." Proposed Amendment to Fed. Rule Civ. Proc. 23(b), 117 S. Ct. No. 1 CXIX, CLIV to CLV (Request for Comment). In response to the publication of this proposal, voluminous public comments—many of them opposed to, or skeptical of, the amendment—were received by the Judicial Conference Standing Committee on Rules of Practice and Procedure. See, e. g., Letter from Steering Committee to Oppose Proposed Rule 23, signed by 129 law professors ; Letter from Paul D. Carrington The Committee has not yet acted on the matter. We consider the certification at issue under the Rule as it is currently framed. IV We granted review to decide the role settlement may play, under existing Rule 23, in determining the propriety of class certification. The Third Circuit's opinion stated that each of the requirements of Rule 23(a) and (b)(3) "must be satisfied without taking into account the settlement." (quoting GM ). That statement, petitioners urge, is incorrect. We agree with petitioners to this limited extent: Settlement is relevant to a class certification. The Third Circuit's opinion bears modification in that respect. But, as we earlier observed, see the Court of Appeals in fact did not ignore the settlement; instead, that court homed in on settlement terms in explaining why it found the absentees' *620 interests inadequately represented. See 83 F.3d, — 631. The Third Circuit's close inspection of the settlement in that regard was altogether proper. Confronted with a request for settlement-only class certification, a district court need not inquire whether the if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. But other specifications of the Rule— those designed to protect absentees by blocking unwarranted or overbroad class definitions—demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 23(c), (d).[16] And, of overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U.S. C. 2073, 2074. The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure "shall not abridge any substantive right." 2072(b). Rule 23(e), on settlement of class actions, reads in its entirety: "A class action shall not be dismissed or compromised *621 without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." This prescription was designed to function as an additional requirement, not a superseding direction, for the "class action" to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. -177 Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed. The safeguards provided by the Rule 23(a) and (b) classqualifying criteria, we emphasize, are not impractical impediments—checks shorn of utility—in the settlement-class context. First, the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor's foot kind—class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness. Second, if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer, see Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, and the court would face a bargain proffered for its approval without benefit of adversarial investigation, see, e. g., (parties "may even put one over on the court, in a staged performance"), cert. denied, *622 Federal courts, in any lack authority to substitute for Rule 23's certification criteria a standard never adopted— that if a settlement is "fair," then certification is proper. Applying to this criteria the rulemakers set, we conclude that the Third Circuit's appraisal is essentially correct. Although that court should have acknowledged that settlement is a factor in the calculus, a remand is not warranted on that account. The Court of Appeals' opinion amply demonstrates why—with or without a settlement on the table— the sprawling class the District Court certified does not satisfy Rule 23's requirements.[17] A We address first the requirement of Rule 23(b)(3) that "[common] questions of law or fact predominate over any questions affecting only individual members." The District Court concluded that predominance was satisfied based on two factors: class members' shared experience of asbestos exposure and their common "interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., The settling parties contend that the settlement's fairness is a common question, predominating over disparate legal issues that might be pivotal in litigation but become irrelevant under the settlement. The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, see *623 at 598, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member's as a genuine controversy, questions that preexist any settlement.[18] The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See 7A Wright, Miller, & Kane 518— 519.[19] The inquiry appropriate under Rule 23(e), on the other hand, protects unnamed class members "from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise." See 7B Wright, Miller, & Kane 1797, at 340-341. But it is not the mission of Rule 23(e) to assure the class cohesion that legitimizes representative action in the first place. If a common interest in a fair compromise could satisfy the predominance requirement of Rule 23(b)(3), that vital prescription would be stripped of any meaning in the settlement context. The District Court relied upon this commonality: "The members of the class have all been exposed to asbestos products supplied by the defendants" 157 F. R. D., Even if Rule 23(a)'s commonality requirement may be satisfied *624 by that shared experience, the predominance criterion is far more demanding. See -627. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard. The Third Circuit highlighted the disparate questions undermining class cohesion in this : "Class members were exposed to different asbestoscontaining products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only a symptomatic plural changes, while others suffer from lung cancer, disabling asbestos is, or from mesothelioma Each has a different history of cigarette smoking, a factor that complicates the causation inquiry. "The [exposure-only] plaintiffs especially share little in common, either with each other or with the presently injured class members. It is unclear whether they will contract asbestos-related disease and, if so, what disease each will suffer. They will incur different medical expenses because their monitoring and treatment will depend on singular circumstances and individual medical histories." Differences in state law, the Court of Appeals observed, compound these disparities. See ). No settlement class called to our attention is as sprawling as this one. Cf. In re Asbestos n. 8 ("We would likely agree with the Third Circuit that a class action requesting individual damages for members of a global class of asbestos claimants would not satisfy [Rule 23] requirements due to the huge number of individuals and *625 their varying medical expenses, smoking histories, and family situations."). Predominance is a test readily met in certain s alleging consumer or securities fraud or violations of the antitrust laws. See Adv. Comm. Notes, 28 U.S. C. App., p. 697; see Even mass tort s arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that "mass accident" s are likely to present "significant questions, not only of damages but of liability and defenses of liability, affecting the individuals in different ways." Adv. Comm. Notes, 28 U.S. C. App., p. 697. And the Committee advised that such s are "ordinarily not appropriate" for class treatment. Ib But the text of the Rule does not categorically exclude mass tort s from class certification, and District Courts, since the late 1970's, have been certifying such s in increasing number. See Resnik, From "Cases" to "," 54 Law & Contemp. Prob. 5, 17-19 (describing trend). The Committee's warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit's opinion makes plain, the certification in this does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)'s predominance requirement irreconcilable with the Rule's design. B Nor can the class approved by the District Court satisfy Rule 23(a)(4)'s requirement that the named parties "will fairly and adequately protect the interests of the class." The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. See General Telephone Co. of "[A] class representative must be part of the class and `possess * the same interest and suffer the same injury' as the class members." East Tex. Motor Freight System, ).[20] As the Third Circuit pointed out, named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Cf. General Telephone Co. of ("In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes."). The disparity between the currently injured and exposure-only categories of plaintiffs, and the diversity within each category are not made insignificant by the District Court's finding that petitioners' assets suffice to pay claims under the settlement. See 157 F. R. D., at 291. Although *627 this is not a "limited fund" certified under Rule 23(b)(1)(B), the terms of the settlement reflect essential allocation decisions designed to confine compensation and to limit defendants' liability. For example, as earlier described, see the settlement includes no adjustment for inflation; only a few claimants per year can opt out at the back end; and loss-of-consortium claims are extinguished with no compensation. The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point: "[W]here differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups." In re Joint Eastern and South- ern Dist. Asbestos modified on reh'g sub nom. In re Findley, The Third Circuit found no assurance here—either in the terms of the settlement or in the structure of the negotiations—that the named plaintiffs operated under a proper understanding of their representational responsibilities. See * 83 F. 3d, -631. That assessment, we conclude, is on the mark. C Impediments to the provision of adequate notice, the Third Circuit emphasized, rendered highly problematic any endeavor to tie to a settlement class persons with no perceptible asbestos-related disease at the time of the settlement. ; cf. In re Asbestos - Many persons in the exposure-only category, the Court of Appeals stressed, may not even know of their exposure, or realize the extent of the harm they may incur. Even if they fully appreciate the significance of class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out. Family members of asbestos-exposed individuals may themselves fall prey to disease or may ultimately have ripe claims for loss of consortium. Yet large numbers of people in this category—future spouses and children of asbestos victims—could not be alerted to their class membership. And current spouses and children of the occupationally exposed may know nothing of that exposure. Because we have concluded that the class in this cannot satisfy the requirements of common issue predominance and adequacy of representation, we need not rule, definitively, on the notice given here. In accord with the Third Circuit, however, see 83 F.3d, -634, we recognize the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous. V The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos *629 exposure.[21] Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. As this exemplifies, the rulemakers' prescriptions for class actions may be endangered by "those who embrace [Rule 23] too enthusiastically just as [they are by] those who approach [the Rule] with distaste." C. Wright, Law of Federal Courts 508 ; cf.83 F. 3d, * * * For the reasons stated, the judgment of the Court of Appeals for the Third Circuit is Affirmed. Justice O'Connor took no part in the consideration or decision of this Justice Breyer, with whom Justice Stevens joins, concurring in part and dissenting in part. Although I agree with the Court's basic holding that "[s]ettlement is relevant to a class certification," ante, at 619, I find several problems in its approach that lead me to a different conclusion. First, I believe that the need for settlement in this mass tort with hundreds of thousands of lawsuits, is greater than the Court's opinion suggests. Second, I would give more weight than would the majority to settlement-related issues for purposes of determining whether common issues predominate. Third, I am uncertain about the Court's determination of adequacy of representation, *630 and do not believe it appropriate for this Court to second-guess the District Court on the matter without first having the Court of Appeals consider it. Fourth, I am uncertain about the tenor of an opinion that seems to suggest the settlement is unfair. And fifth, in the absence of further review by the Court of Appeals, I cannot accept the majority's suggestions that "notice" is inadequate. These difficulties flow from the majority's review of what are highly fact-based, complex, and difficult matters, matters that are inappropriate for initial review before this Court. The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion. See Indeed, the District Court's certification decision rests upon more than 300 findings of fact reached after five weeks of comprehensive hearings. Accordingly, I do not believe that we should in effect set aside the findings of the District Court. That court is far more familiar with the issues and litigants than is a court of appeals or are we, and therefore has "broad power and discretion with respect to matters involving the certification" of class actions. ; cf. Cooter & I do not believe that we can rely upon the Court of Appeals' review of the District Court record, for that review, and its ultimate conclusions, are infected by a legal error. E. g., There is no evidence that the Court of Appeals at any point considered the settlement as something that would help the class meet Rule 23. I find, moreover, the fact-related issues presented here sufficiently *631 close to warrant further detailed appellate court review under the correct legal standard. Cf. And I shall briefly explain why this is so. I First, I believe the majority understates the importance of settlement in this Between 13 and 21 million workers have been exposed to asbestos in the workplace—over the past 40 or 50 years—but the most severe instances of such exposure probably occurred three or four decades ago. See Report of The Judicial Conference Ad Hoc Committee on Asbestos pp. 6-7 (Judicial Conference Report); App. 781-782, 801; B. Castleman, Asbestos: Medical and Legal Aspects 787-788 This exposure has led to several hundred thousand lawsuits, about 15% of which involved claims for cancer and about 30% for asbestos is. See In re Joint Eastern and Southern Dist. Asbestos About half of the suits have involved claims for plural thickening and plaques—the harmfulness of which is apparently controversial. (One expert below testified that they "don't transform into cancer" and are not "predictor[s] of future disease," App. 781.) Some of those who suffer from the most serious injuries, however, have received little or no compensation. In re School Asbestos ; see Edley & Asbestos: A MultiBillion-Dollar Crisis, 30 Harv. J. Legis. 383, 384, 393 ("[U]p to one-half of asbestos claims are now being filed by people who have little or no physical impairment. Many of these claims produce substantial payments (and substantial costs) even though the individual litigants will never become impaired"). These lawsuits have taken up more than 6% of all federal civil filings in one recent year, and are subject to a delay that is twice that of other civil suits. Judicial Conference Report 7, 10-11. *632 Delays, high costs, and a random pattern of noncompensation led the Judicial Conference Ad Hoc Committee on Asbestos to transfer all federal asbestos personalinjury s to the Eastern District of Pennsylvania in an effort to bring about a fair and comprehensive settlement. It is worth considering a few of the Committee's comments. See Judicial Conference Report 2 ("`Decisions concerning thousands of deaths, millions of injuries, and billions of dollars are entangled in a litigation system whose strengths have increasingly been overshadowed by its weaknesses.' The ensuing five years have seen the picture worsen: increased filings, larger backlogs, higher costs, more bankruptcies and poorer prospects that judgments—if ever obtained—can be collected" (quoting Rand Corporation Institute for Civil Justice)); ("The transaction costs associated with asbestos litigation are an unconscionable burden on the victims of asbestos disease." "[O]f each asbestos litigation dollar, 61 cents is consumed in transaction costs Only 39 cents were paid to the asbestos victims" (citing Rand finding)); ("Delays can increase transaction costs, especially the attorneys' fees paid by defendants at hourly rates. These costs reduce either the insurance fund or the company's assets, thereby reducing the funds available to pay pending and future claimants. By the end of the trial phase in [one ], at least seven defendants had declared bankruptcy (as a result of asbestos claims generally")); see J. Individual Justice in Mass Tort 155 ; Edley & Although the transfer of the federal asbestos s did not produce a general settlement, it was intertwined with and led to a lengthy year-long negotiation between the cochairs of the Plaintiff's Multi-District Steering Committee (elected by the Plaintiff's Committee Members and approved by the District Court) and the 20 asbestos defendants who are before us here. 157 F. R. D. 246, 266-267 ; App. 660-662. *633 These "protracted and vigorous" negotiations led to the present partial settlement, which will pay an estimated $1.3 billion and compensate perhaps 100,000 class members in the first 10 years. 157 F. R. D., at 268, 287. "The negotiations included a substantial exchange of information" between class counsel and the 20 defendant companies, including "confidential data" showing the defendants' historical settlement averages, numbers of claims filed and settled, and insurance resources. "Virtually no provision" of the settlement "was not the subject of significant negotiation," and the settlement terms "changed substantially" during the negotiations. Ib In the end, the negotiations produced a settlement that, the District Court determined based on its detailed review of the process, was "the result of armslength adversarial negotiations by extraordinarily competent and experienced attorneys." The District Court, when approving the settlement, concluded that it improved the plaintiffs' chances of compensation and reduced total legal fees and other transaction costs by a significant amount. Under the previous system, according to the court, "[t]he sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease." Ib The court believed the settlement would create a compensation system that would make more money available for plaintiffs who later develop serious illnesses. I mention this matter because it suggests that the settlement before us is unusual in terms of its importance, both to many potential plaintiffs and to defendants, and with respect to the time, effort, and expenditure that it reflects. All of which leads me to be reluctant to set aside the District Court's findings without more assurance than I have that they are wrong. I cannot obtain that assurance through comprehensive review of the record because that is properly the job of the Court of Appeals and that court, understandably, but as we now hold, mistakenly, believed that settlement *634 was not a relevant (and, as I would say, important) consideration. Second, the majority, in reviewing the District Court's determination that common "issues of fact and law predominate," says that the predominance "inquiry trains on the legal or factual questions that qualify each class member's as a genuine controversy, questions that preexist any settlement." Ante, (footnote omitted). I find it difficult to interpret this sentence in a way that could lead me to the majority's conclusion. If the majority means that these presettlement questions are what matters, then how does it reconcile its statement with its basic conclusion that "settlement is relevant" to class certification, or with the numerous lower court authority that says that settlement is not only relevant, but important? See, e. g., In re A. H. Robins Co., (CA4), cert. denied sub nom. ; In re Beef Industry Antitrust cert. denied sub nom. Iowa Beef Processors, ; 2 H. Newberg & A. Conte, Newberg on Class Actions 11.27, pp. 11-54 to 11-55 Nor do I understand how one could decide whether common questions "predominate" in the abstract—without looking at what is likely to be at issue in the proceedings that will ensue, namely, the settlement. Every group of human beings, after all, has some features in common, and some that differ. How can a court make a contextual judgment of the sort that Rule 23 requires without looking to what proceedings will follow? Such guideposts help it decide whether, in light of common concerns and differences, certification will achieve Rule 23's basic objective—"economies of time, effort, and expense." Advisory Committee's Notes on Fed. Rule Civ. Proc. 23(b)(3), 28 U.S. C. App., p. 697. As this Court has previously observed, "sometimes it may be necessary for the court to probe behind the pleadings before coming to *635 rest on the certification question." General Telephone Co. of ; see 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1785, p. 107, and n. 34 I am not saying that the "settlement counts only one way." Ante, at 620, n. 16. Rather, the settlement may simply "add a great deal of information to the court's inquiry and will often expose diverging interests or common issues that were not evident or clear from the complaint" and courts "can and should" look to it to enhance the "ability to make informed certification decisions." In re Asbestos The majority may mean that the District Court gave too much weight to the settlement. But I am not certain how it can reach that conclusion. It cannot rely upon the Court of Appeals, for that court gave no positive weight at all to the settlement. Nor can it say that the District Court relied solely on "a common interest in a fair compromise," ante, for the District Court did not do so. Rather, it found the settlement relevant because it explained the importance of the class plaintiffs' common features and common interests. The court found predominance in part because: "The members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., The settlement is relevant because it means that these common features and interests are likely to be important in the proceeding that would ensue—a proceeding that would focus primarily upon whether or not the proposed settlement fairly and properly satisfied the interests class members had in common. That is to say, the settlement underscored the importance *636 of (a) the common fact of exposure, (b) the common interest in receiving some compensation for certain rather than running a strong risk of no compensation, and (c) the common interest in avoiding large legal fees, other transaction costs, and delays. Ib Of course, as the majority points out, there are important differences among class members. Different plaintiffs were exposed to different products for different times; each has a distinct medical history and a different history of smoking; and many s arise under the laws of different States. The relevant question, however, is how much these differences matter in respect to the legal proceedings that lie ahead. Many, if not all, toxic tort class actions involve plaintiffs with such differences. And the differences in state law are of diminished importance in respect to a proposed settlement in which the defendants have waived all defenses and agreed to compensate all those who were injured. These differences might warrant subclasses, though subclasses can have problems of their own. "There can be a cost in creating more distinct subgroups, each with its own representation. [T]he more subclasses created, the more severe conflicts bubble to the surface and inhibit settlement. The resources of defendants and, ultimately, the community must not be exhausted by protracted litigation." Individual Justice in Mass Tort at 66. Or these differences may be too serious to permit an effort at group settlement. This kind of determination, as I have said, is one that the law commits to the discretion of the district court—reviewable for abuse of discretion by a court of appeals. I believe that we are far too distant from the litigation itself to reweigh the fact-specific Rule 23 determinations and to find them erroneous without the benefit of the Court of Appeals first having restudied the matter with today's legal standard in mind. *637 Third, the majority concludes that the "representative parties" will not "fairly and adequately protect the interests of the class." Rule 23(a)(4). It finds a serious conflict between plaintiffs who are now injured and those who may be injured in the future because "for the currently injured, the critical goal is generous immediate payments," a goal that "tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future." Ante, I agree that there is a serious problem, but it is a problem that often exists in toxic tort s. See (noting that conflict "between present and future claimants" "is almost always present in some form in mass tort s because long latency periods are needed to discover injuries"); see Judicial Conference Report 34-35 ("Because many of the defendants in these s have limited assets that may be called upon to satisfy the judgments obtained under current common tort rules and remedies, there is a `real and present danger that the available assets will be exhausted before those later victims can seek compensation to which they are entitled' " (citation omitted)). And it is a problem that potentially exists whenever a single defendant injures several plaintiffs, for a settling plaintiff leaves fewer assets available for the others. With class actions, at least, plaintiffs have the consolation that a district court, thoroughly familiar with the facts, is charged with the responsibility of ensuring that the interests of no class members are sacrificed. But this Court cannot easily safeguard such interests through review of a cold record. "What constitutes adequate representation is a question of fact that depends on the circumstances of each" 7A Wright, Miller, & Kane, Federal Practice and Procedure 1765, at 271. That is particularly so when, as here, there is an unusual baseline, namely, the "`real and present danger' " described by the Judicial Conference Report above. The majority's use of the *638 lack of an inflation adjustment as evidence of inadequacy of representation for future plaintiffs, ante, -627, is one example of this difficulty. An inflation adjustment might not be as valuable as the majority assumes if most plaintiffs are old and not worried about receiving compensation decades from now. There are, of course, strong arguments as to its value. But that disagreement is one that this Court is poorly situated to resolve. Further, certain details of the settlement that are not discussed in the majority opinion suggest that the settlement may be of greater benefit to future plaintiffs than the majority suggests. The District Court concluded that future plaintiffs receive a "significant value" from the settlement due to a variety of its items that benefit future plaintiffs, such as: (1) tolling the statute of limitations so that class members "will no longer be forced to file premature lawsuits or risk their claims being time-barred"; (2) waiver of defenses to liability; (3) payment of claims, if and when members become sick, pursuant to the settlement's compensation standards, which avoids "the uncertainties, long delays and high transaction costs [including attorney's fees] of the tort system"; (4) "some assurance that there will be funds available if and when they get sick," based on the finding that each defendant "has shown an ability to fund the payment of all qualifying claims" under the settlement; and (5) the right to additional compensation if cancer develops (many settlements for plaintiffs with noncancerous conditions bar such additional claims). 157 F. R. D., For these reasons, and others, the District Court found that the distinction between present and future plaintiffs was "illusory." I do not know whether or not the benefits are more or less valuable than an inflation adjustment. But I can certainly recognize an argument that they are. (To choose one more brief illustration, the majority chastises the settlement for extinguishing loss-of-consortium claims, ante, but *639 does not note that, as the District Court found, the "defendants' historical [settlement] averages, upon which the compensation values are based, include payments for loss of consortium claims, and, accordingly, the Compensation Schedule is not unfair for this ascribed reason," 157 F. R. D., at 278.) The difficulties inherent in both knowing and understanding the vast number of relevant individual fact-based determinations here counsel heavily in favor of deference to district court decisionmaking in Rule 23 decisions. Or, at the least, making certain that appellate court review has taken place with the correct standard in mind. Fourth, I am more agnostic than is the majority about the basic fairness of the settlement. Ante, at 625-. The District Court's conclusions rested upon complicated factual findings that are not easily cast aside. It is helpful to consider some of them, such as its determination that the settlement provided "fair compensation while reducing the delays and transaction costs endemic to the asbestos litigation process" and that "the proposed class action settlement is superior to other available methods for the fair and efficient resolution of the asbestos-related personal injury claims of class members." 157 F. R. D., (citation omitted); see ("The inadequate tort system has demonstrated that the lawyers are well paid for their services but the victims are not receiving speedy and reasonably inexpensive resolution of their claims. Rather, the victims' recoveries are delayed, excessively reduced by transaction costs and relegated to the impersonal group trials and mass consolidations. The sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease. Indeed, these unimpaired victims have, in many states, been forced to assert their claims prematurely or risk giving up all rights to future compensation for any future lung cancer or mesothelioma. The plan which this Court approves today will correct that unfair result for the class members and the defendants"); *640 ; ; Edley & 30 Harv. J. Legis., at 405, 407 (finding that "[t]here are several reasons to believe that this settlement secures important gains for both sides" and that they "firmly endorse the fairness and adequacy of this settlement"). Indeed, the settlement has been endorsed as fair and reasonable by the AFL—CIO (and its Building and Construction Trades Department), which represents a "`substantial percentage' " of class members, 157 F. R. D., at 325, and which has a role in monitoring implementation of the settlement, I do not intend to pass judgment upon the settlement's fairness, but I do believe that these matters would have to be explored in far greater depth before I could reach a conclusion about fairness. And that task, as I have said, is one for the Court of Appeals. Finally, I believe it is up to the District Court, rather than this Court, to review the legal sufficiency of notice to members of the class. The District Court found that the plan to provide notice was implemented at a cost of millions of dollars and included hundreds of thousands of individual notices, a wide-ranging television and print campaign, and significant additional efforts by 35 international and national unions to notify their members. Every notice emphasized that an individual did not currently have to be sick to be a class member. And in the end, the District Court was "confident" that Rule 23 and due process requirements were satisfied because, as a result of this "extensive and expensive notice procedure," "over six million" individuals "received actual notice materials," and "millions more" were reached by the media campaign. Although the majority, in principle, is reviewing a Court of Appeals' conclusion, it seems to me that its opinion might call into question the fact-related determinations of the District *641 Court. Ante, at To the extent that it does so, I disagree, for such findings cannot be so quickly disregarded. And I do not think that our precedents permit this Court to do so. See 442 U. S., at ; 442 U. S., at II The issues in this are complicated and difficult. The District Court might have been correct. Or not. Subclasses might be appropriate. Or not. I cannot tell. And I do not believe that this Court should be in the business of trying to make these fact-based determinations. That is a job suited to the district courts in the first instance, and the courts of appeals on review. But there is no reason in this to believe that the Court of Appeals conducted its prior review with an understanding that the settlement could have constituted a reasonably strong factor in favor of class certification. For this reason, I would provide the courts below with an opportunity to analyze the factual questions involved in certification by vacating the judgment, and remanding the for further proceedings.

Justice Ginsburg

majority

Golan v. Holder

2012-01-18

https://www.courtlistener.com/opinion/621044/golan-v-holder/

https://www.courtlistener.com/api/rest/v3/clusters/621044/

The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 1886, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in §514 of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to §514’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of §514, foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in §514 ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, §8, cl. 8, and First Amendment both decree the invalidity of §514. Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that §514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 565 U. S. ____ (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 164 member states, thus enjoy copyright protection in nations across the globe. Art. 2(6), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 1 Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, §3, 13, 26 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 750 (2003).2 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–609, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), 102 Stat. 2853, made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” §12, 102 Stat. 2860. Protection of future foreign works, the BCIA indicated, satisfied Article 18. See §2(3), 102 Stat. 2853 (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention . . . .”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 622, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 565 U. S. ____ (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, Office of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress . . . acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 (citing Gervais, Golan v. Holder: A Look at the Con- straints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc 147, 151–152 (2011)); id., at 152 (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 1886–1986, p. 675 (1987) 6 GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 168 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Ibid. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (USTR)); id., at 208 (statement of Profes- sor Shira Perlmutter); id., at 291 (statement of Jason S. Berman, Recording Industry Association of America (RIAA)).6 —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class . . . of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to §514 of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, §334, 107 Stat. 2115; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–16. One year later, Con- gress replaced this provision with the version of 17 U.S. C. §104A at issue here. See 3 M. Nimmer & D. Nimmer, Copyright §9A.03, 9A.04, pp. 9A–17, 9A–22 (2011) (hereinafter Nimmer). 6 This tension between the United States and its new Berne counter Cite as: 565 U. S. ____ (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not . . . bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. Gervais, The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 157, 172 (1996). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle 6bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See Gervais, supra, at 213; 7 W. Patry, Copyright §24:1, pp. 24–8 to 24–9 (2011). The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, 108 Stat. 4976 (codified at 17 U.S. C. §104A, 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See id., at 120 (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); id., at 268 (statement of Berman, RIAA). 9 Title 17 U.S. C. §104A is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under §514. The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. §104A(h)(6)(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 565 U. S. ____ (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See §104A(h)(6)(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” §104A(h)(3). As noted above, see supra, at 3, 164 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer §7.01[A], p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 46 (1957), reprinted in 1 Studies on Copyright 229, 272 (1963). In 1976, Congress eliminated the registration renewal requirement for future works. Copyright Act of 1976, §302, 408, 90 Stat. 2572, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA §7, 102 Stat. 2857. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, 106 Stat. 264–266. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. §405(b) (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); §411(a) (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive no further protec- tion under §514. Ibid.12 Copyrights “restored”13 under URAA §514 “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed . . . if the work never entered the public domain.” §104A(a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See §302(a) (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before §514’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following §514’s enact- ment. See 17 U.S. C. §104A(h)(2)(A). Concerns about §514’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. §104A(h)(6)(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under §104A previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer §9A.04[A][1][b][iii], at 9A–26, and n. 29.4. Cite as: 565 U. S. ____ (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See §104A(h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. §104A(c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. §104A(d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. §104A(d)(3). B In 2001, petitioners filed this lawsuit challenging §514. They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See §104A(h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer §9A.04[C][1][a], at 9A–45 to 9A–46. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, 112 Stat. 2827, which added 20 years to the duration of existing and future copyrights. After this Court rejected a similar challenge in Eldred v. Ashcroft, 537 U.S. 186 (2003), the District Court dismissed this portion of petitioners’ suit on the plead- ings, Golan v. Ashcroft, 310 F. Supp. 2d 1215 (D. Colo. 2004). The Tenth Circuit affirmed, Golan v. Gonzales, 501 F.3d 1179 (2007), and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. Golan v. Gonzales, No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” Id., at *14. The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” Id., at *17. The Court of Appeals for the Tenth Circuit affirmed in part. Golan v. Gonzales, 501 F.3d 1179 (2007). The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” Id., at 1187 (internal quotations marks omitted). But §514, as the Court of Appeals read our decision in Eldred v. Ash- croft, 537 U.S. 186 (2003), required further First Amend- ment inspection, 501 F.3d, at 1187. The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. Ibid. (quoting Eldred, 537 U. S., at 221). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” 611 F. Supp. 2d 1165, 1170–1171 (Colo. 2009) (quot- ing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that §514 violates the substantive component of the Due Process Clause. Cite as: 565 U. S. ____ (2012) 13 Opinion of the Court court concluded, because §514’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 611 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that §514 survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. 609 F.3d 1076 (2010). We granted certiorari to consider petitioners’ challenge to §514 under both the Copyright Clause and the First Amendment, 562 U. S. ___ (2011), and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact §514. The Constitution states that “Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 266 (2007). Petitioners’ contrary argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in Eldred is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- rights. 537 U.S., at 192–193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” Id., at 199. “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Ibid. Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” Ibid. (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm. The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. In light of Eldred, petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. §302(a). Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See Eldred, 537 U.S., at 199. Indeed, as earlier noted, see supra, at 2, 10, the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 565 U. S. ____ (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection . . . sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.16 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U.S., at 198–200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copyrights. B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 16 Cf.3 Nimmer §9A.02[A][2], at 9A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the . . . work need not be resurrected.”). 16 GOLAN v. HOLDER Opinion of the Court guishes their suit from Eldred’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term extensions, 537 U.S., at 200. No comparable prac- tice, they maintain, supports §514. On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), §1, 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 . . . men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (1967) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 236; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. 6–7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 1786 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 617; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 563; 1786 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 236; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. 6–7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 565 U. S. ____ (2012) 17 Opinion of the Court 111 U.S. 53, 57 (1884).21 Subsequent actions confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 57, 9 Stat. 763; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 618; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 1396. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver Evans’ flour mill. When Evans sued for infringement, first Chief Justice Marshall in the Circuit Court, Evans v. Jordan, 8 F. Cas. 872 (No. 4,564) (Va. 1813), and then Justice Bushrod Washington for this Court, Evans v. Jordan, 9 Cranch 199 (1815), upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [Evans’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In Wheaton v. Peters, 8 Pet. 591 (1834), the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. Id., at 657, 663. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262, 1265 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in Eldred, “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 537 U.S., at 201. 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. Id., at 202. See also Blanchard v. Sprague, 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which . . . was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. Id., at 206–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, §3, 4 Stat. 559. An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See supra, at 9, and n. 11. Cite as: 565 U. S. ____ (2012) 19 Opinion of the Court 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732.24 Pointing to dictum in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” Id., at 6; post, at 15. But as we explained in Eldred, this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., at 202, n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See supra, at 7–8; cf. Eldred, 537 U.S., at 259, 264–265 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. id., at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see supra, at 13–14, is ever and always impermissible. Accord Luck’s Music Library, 407 F.3d, at 1265–1266 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by §514—“would necessarily have already entered the public domain . . . .”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, §8, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, 383 U.S., at 5, and n. 1; Evans, 8 F. Cas., at 873 (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of . . . new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because §514 deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ . . . because it does not stimulate the creation of new works.” 537 U.S., at 211–212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); Eldred, 537 U.S., at 208, n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 565 U. S. ____ (2012) 21 Opinion of the Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Id., at 222. And those permissible ends, we held, extended beyond the creation of new works. See id., at 205–206 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Perlmutter, Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 332 (2002))).26 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” Id., at 324, n. 5 (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, 6 Green Bag 2d 37, 44 (2002) (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 26 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, contra supra, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Perlmutter, supra, at 324, n. 5. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also Eldred, 537 U.S., at 206.27 Considered against this backdrop, §514 falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See Perlmutter, supra, at 332 (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 565 U. S. ____ (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by §514. To do so, we first recapitulate the relevant part of our pathmarking decision in Eldred. The petitioners in Eldred, like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the Eldred petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in Eldred, offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” 537 U.S., at 219, we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–6, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum. J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with . . . America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Ibid. (quoting Harper & Row, 471 U.S., at 558 (internal quotation marks omit- ted)); see id., at 546 (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” Eldred, 537 U.S., at 219; see Harper & Row, 471 U.S., at 560 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. §102(b): “In no case does copyright protec[t] . . . any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. Eldred, 537 U.S., at 219; see Harper & Row, 471 U.S., at 556 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in Eldred to “traditional contours of copyright.” 501 F.3d, at 1187–1196. That reading was incorrect, as we here clarify. Cite as: 565 U. S. ____ (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. §107: “[T]he fair use of a copyright- ed work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U.S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholar- ship and comment, . . . even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see id., at 219, we concluded in Eldred that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before §514 took effect. See supra, at 10–11 (describing 17 U.S. C. §104A(c), (d), and (h)). See also Eldred, 537 U.S., at 220 (describing supplemental allowances and exemp- —————— 30 See Eldred, 537 U.S., at 221 (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 26 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in Eldred. First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in Eldred— enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before §514’s enactment. Nor, petitioners urge, does §514’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Eldred. Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see supra, at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” 501 F.3d, at 1184. And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 565 U. S. ____ (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in Eldred, we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in Eldred, who never “possessed unfettered access to any of the works at issue.” 501 F.3d, at 1193. See also id., at 1194 (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] §514’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners 44–45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966), noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See supra, at 19. The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479–484 (1974), and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. §201(a) (“Copyright in a work protected . . . vests initially in the author . . . .”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which . . . have not yet fallen into the public do- main . . . .”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, §13, 26 Stat. 1110; to dramatic works in 1856, Act of Aug. 18, 11 Stat. 138; to photographs and photographic negatives in 1865, Act of Mar. 3, §1, 13 Stat. 540; to mo- tion pictures in 1912, Act of Aug. 24, 37 Stat. 488; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, 104 Stat. 5133. And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See supra, at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 565 U. S. ____ (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or . . . the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 46– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.” Id., at 47.34 But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); id., at 121 (app. to statement of Lehman, Commerce Dept.); id., at 141 (state- ment of Shapiro, USTR); id., at 145 (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by §514, see supra, at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Office, Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (2010) (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 406, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; §514 gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Office, Report on Orphan Works 21–40 (2006). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under §514. It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected by §514 got there after a term of zero or a term cut short by failure to observe U. S. formalities. See supra, at 9. Cite as: 565 U. S. ____ (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright Office, supra, at 41–44 (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 1976 Copyright Act).36 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 677–678 (SDNY 2011) (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing Eldred, 537 U.S., at 212)). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, at 678 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, §77 (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Office, Legal Issues in Mass Digitization 25–29 (2011) (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 36 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 565 U. S. ____ (2012) 33 Opinion of the Court Appendix to opinion of the Court APPENDIX Title 17 U.S. C. §104A provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright Office, during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 565 U. S. ____ (2012) 35 Opinion of the Court Appendix to opinion of the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 36 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright Office to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright Office may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 565 U. S. ____ (2012) 37 Opinion of the Court Appendix to opinion of the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information Office of the Copyright Office and shall be available for public inspection and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright Office shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 106 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 565 U. S. ____ (2012) 39 Opinion of the Court Appendix to opinion of the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 1996, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any person who— “(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “(6) The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 565 U. S. ____ (2012) 41 Opinion of the Court Appendix to opinion of the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 565 U. S. ____ (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–545 _________________ LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 188, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to ’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, cl. 8, and First Amendment both decree the invalidity of Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 55 U. S. (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 188, as revised at Stockholm on July 14, 197, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 14 member states, thus enjoy copyright protection in nations across the globe. Art. 2(), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 1 Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, 13, 2 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 7502 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–09, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” Protection of future foreign works, the BCIA indicated, satisfied Article 18. See (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 22, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 55 U. S. (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 ); (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 188–198, p. 75 (1987) GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 18 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (USTR)); (statement of Profes- sor Shira ); (statement of Jason S. Berman, Recording Industry Association of America (RIAA)). —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, ; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–1. One year later, Con- gress replaced this provision with the version of 17 U.S. C. at issue here. See 3 M. Nimmer & D. Nimmer, Copyright 9A.04, pp. 9A–17, 9A–22 (hereinafter Nimmer). This tension between the United States and its new Berne counter Cite as: 55 U. S. (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 1, 172 (199). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 187 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See ; 7 W. Patry, Copyright pp. 24–8 to 24–9 The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, (codified at 17 U.S. C. 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); (statement of Berman, RIAA). 9 Title 17 U.S. C. is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. (h)()(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 55 U. S. (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See (h)()(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” (h)(3). As noted above, see at 3, 14 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 4 (19), reprinted in 1 Studies on Copyright 229, 272 (193). In 197, Congress eliminated the registration renewal requirement for future works. Copyright Act of 197, 408, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA 102 Stat. 28. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, –2. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive no further protec- tion under 12 Copyrights “restored”13 under URAA “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed if the work never entered the public domain.” (a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before ’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following ’s enact- ment. See 17 U.S. C. (h)(2)(A). Concerns about ’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. (h)()(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer A–2, and n. 29.4. Cite as: 55 U. S. (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See (h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright within two years of restoration, or by actually notifying the reliance party. (c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. (d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. (d)(3). B In 2001, petitioners filed this lawsuit challenging They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See (h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer A–45 to 9A–4. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, which added 20 years to the duration of existing and future copy After this Court rejected a similar challenge in the District Court dismissed this portion of petitioners’ suit on the plead- ings, The Tenth Circuit affirmed, and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” The Court of Appeals for the Tenth Circuit affirmed in part. The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” at 1187 (internal quotations marks omitted). But as the Court of Appeals read our decision in required further First Amend- ment The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. (quoting ). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” (quot- ing 791 (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that violates the substantive component of the Due Process Clause. Cite as: 55 U. S. (2012) 13 Opinion of the Court court concluded, because ’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 11 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. We granted certiorari to consider petitioners’ challenge to under both the Copyright Clause and the First Amendment, 52 U. S. and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact The Constitution states that “Congress shall have Power [t]o promote the Progress of Science by securing for limited Times to Authors the exclusive Right to their Writings.” Art. I, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 2 Petitioners’ ry argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- –193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in and is similarly infirm. The terms afforded works restored by are no less “limited” than those the CTEA lengthened. In light of petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See 537 U.S., Indeed, as earlier noted, see the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 55 U. S. (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.1 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See –200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copy B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 1 Cf.3 Nimmer A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the work need not be resurrected.”). 1 GOLAN v. HOLDER Opinion of the Court guishes their suit from ’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term No comparable prac- tice, they maintain, supports On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (197) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 23; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 178 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 17; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 53; 178 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 23; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 55 U. S. (2012) 17 Opinion of the Court21 Subsequent actions confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 9 Stat. 73; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 18; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 139. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver ’ flour mill. When sued for infringement, first Chief Justice Marshall in the Circuit Court, (No. 4,54) (Va. 1813), and then Justice Bushrod Washington for this Court, upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. 3. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Inc. v. Gonzales, 407 F.3d 122, 125 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. See also Blanchard v. Sprague, 3 F. Cas. 48, 50 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. at 20–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See and n. 11. Cite as: 55 U. S. (2012) 19 Opinion of the Court ; Act of Sept. 25, 1941, ch. 421,24 Pointing to dictum in petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” ; post, at 15. But as we explained in this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See at 7–8; cf. 24–25 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see at 13–14, is ever and always impermissible. Accord Luck’s Music –12 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by —“would necessarily have already entered the public domain”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, and n. 1; (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In we rejected an argument nearly identical to the one petitioners rehearse. The petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ because it does not stimulate the creation of new works.” –212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); 537 U.S., n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 55 U. S. (2012) 21 Opinion of the Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” And those permissible ends, we held, extended beyond the creation of new works. See at 205–20 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 3 Loyola (LA) L. Rev. 323, 332 )).2 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 197, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 2 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also27 Considered against this backdrop, falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor ). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); at 2, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 55 U. S. (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by To do so, we first recapitulate the relevant part of our pathmarking decision in The petitioners in like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 2 Colum. J. L. & Arts 17, 59 (cautioning against “an isolationist reading of the Copyright Clause that is in tension with America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” (quoting Harper & (internal quotation marks omit- ted)); see (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” ; see Harper & 471 U.S., at 50 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. “In no case does copyright protec[t] any idea, procedure, process, system, method of operation, concept, principle, or discovery described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. ; see Harper & 471 U.S., at 55 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in to “traditional contours of copyright.” –119. That reading was incorrect, as we here clarify. Cite as: 55 U. S. (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. “[T]he fair use of a copyright- ed work, including such use by reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” ; see at 220 (“fair use defense affords considerable latitude for scholar- ship and comment, even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see we concluded in that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before took effect. See at 10–11 (describing 17 U.S. C. (c), (d), and (h)). See also 537 U.S., at 220 (describing supplemental allowances and exemp- —————— 30 See (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 2 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in — enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before ’s enactment. Nor, petitioners urge, does ’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 55 U. S. (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in who never “possessed unfettered access to any of the works at issue.” See also (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] ’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners –45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil 41 U.S. 470, and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 49, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. (“Copyright in a work protected vests initially in the author”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which have not yet fallen into the public do- main”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, 2 Stat. 1110; to dramatic works in 185, Act of Aug. 18, ; to photographs and photographic negatives in 185, Act of Mar. 3, ; to mo- tion pictures in 1912, Act of Aug. 24, ; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 55 U. S. (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 4– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.”34 But Congress has not put petitioners in this bind. The question here, as in is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); at 121 (app. to statement of Lehman, Commerce Dept.); (state- ment of Shapiro, USTR); (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by see at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 40, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Report on Orphan Works 21–40 (200). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected by got there after a term of zero or a term cut short by failure to observe U. S. formalities. See Cite as: 55 U. S. (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright at 41– (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 197 Copyright Act).3 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors 770 F. Supp. 2d 77–78 (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing )). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, 78 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Legal Issues in Mass Digitization 25–29 (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 3 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment expresses lies well within the ken of the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 55 U. S. (2012) 33 Opinion of the Court Appendix to opinion of the Court APPENDIX Title 17 U.S. C. provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 55 U. S. (2012) 35 Opinion of the Court Appendix to opinion of the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 3 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 55 U. S. (2012) 37 Opinion of the Court Appendix to opinion of the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information of the Copyright and shall be available for public and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 10 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 55 U. S. (2012) 39 Opinion of the Court Appendix to opinion of the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 199, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any person who— “(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 10 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “() The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 55 U. S. (2012) 41 Opinion of the Court Appendix to opinion of the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 55 U. S. (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–545 LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

Justice Breyer

dissenting

Golan v. Holder

2012-01-18

https://www.courtlistener.com/opinion/621044/golan-v-holder/

https://www.courtlistener.com/api/rest/v3/clusters/621044/

In order “[t]o promote the Progress of Science” (by which term the Founders meant “learning” or “knowledge”), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. This “exclusive Right” allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new mate­ rial. In this sense, a copyright is, in Macaulay’s words, a “tax on readers for the purpose of giving a bounty to writ­ ers”—a bounty designed to encourage new production. As the Court said in Eldred, “ ‘[t]he economic philosophy behind the [Copyright] [C]lause . . . is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.’ ” Eldred v. Ashcroft, 537 U.S. 186, 212, n. 18 (2003) (quoting Mazer v. Stein, 347 U.S. 201, 219 (1954)). See T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913); E. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Per­ spective 125–126 (2002) (hereinafter Walterscheid). The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works— 2 GOLAN v. HOLDER BREYER, J., dissenting works that have already been created and already are in the American public domain. At the same time, the stat­ ute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books—books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world. See infra, at 10–13. In my view, the Copyright Clause does not authorize Congress to enact this statute. And I consequently dissent. I The possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection. The Constitution’s words, “exclusive Right,” “limited Times,” “Progress of Science,” viewed through the lens of history underscore the legal significance of what the Court in Eldred referred to as the “economic philoso­ phy behind the Copyright Clause.” 537 U.S., at 212, n. 18 (brackets omitted). That philosophy understands copy­ right’s grants of limited monopoly privileges to authors as private benefits that are conferred for a public reason—to elicit new creation. Yet, as the Founders recognized, monopoly is a two­ edged sword. On the one hand, it can encourage produc­ tion of new works. In the absence of copyright protection, anyone might freely copy the products of an author’s creative labor, appropriating the benefits without incur­ ring the nonrepeatable costs of creation, thereby deterring authors from exerting themselves in the first place. On the other hand, copyright tends to restrict the dissemina­ tion (and use) of works once produced either because the absence of competition translates directly into higher consumer prices or because the need to secure copying permission sometimes imposes administrative costs that make it difficult for potential users of a copyrighted work to find its owner and strike a bargain. See W. Landes & Cite as: 565 U. S. ____ (2012) 3 BREYER, J., dissenting R. Posner, The Economic Structure of Intellectual Proper­ ty Law 68–70, 213–214 (2003). Consequently, the original British copyright statute, the Constitution’s Framers, and our case law all have recognized copyright’s resulting and necessary call for balance. At the time the Framers wrote the Constitution, they were well aware of Britain’s 18th-century copyright stat­ ute, the Statute of Anne, 8 Anne, ch. 19 (1710), and they were aware of the legal struggles that produced it. That statute sought in part to control, and to limit, preexisting monopolies that had emerged in the book trade as a result of the Crown’s having previously granted special privileg­ es to royal favorites. The Crown, for example, had char­ tered the Stationers’ Company, permitting it to regulate and to censor works on the government’s behalf. The Stationers had thereby acquired control over the disposi­ tion of copies of published works, from which emerged the Stationers’ copyright—a right conferred on company members, not authors, that was deemed to exist in perpe­ tuity. See L. Patterson, Copyright in Historical Perspec­ tive 1–16, 114–150 (1968) (hereinafter Patterson); Walter­ scheid 59–65; Gómez-Arostegui, The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, 25 Berkeley Tech. L. J. 1247, 1250–1256 (2010). To prevent the continuation of the booksellers’ monopoly and to encourage authors to write new books, Parliament enacted the Statute of Anne. It bore the title: “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Cop­ ies, during the Times therein mentioned.” And it granted authors (not publishers) and their assignees the “sole Right and Liberty of printing” their works for limited periods of time in order to encourage them “to compose and write useful Books.” 8 Anne, ch. 19, §1 (emphasis added). As one historian has put it, “[t]he central plank of the . . . Act was . . . a cultural quid pro quo. To encourage 4 GOLAN v. HOLDER BREYER, J., dissenting ‘learned Men to compose and write useful Books’ the state would provide a guaranteed, if temporally limited, right to print and reprint those works.” Deazley, The Myth of Copyright at Common Law, 62 Camb. L. J. 106, 108 (2003). At first, in their attempts to minimize their losses, the booksellers argued that authors had a perpetual com­ mon-law copyright in their works deriving from their natural rights as creators. But the House of Lords ulti­ mately held in Donaldson v. Beckett, 1 Eng. Rep. 837 (1774), that the Statute of Anne had transformed any such perpetual common-law copyright into a copyright of a limited term designed to serve the public interest. Patter­ son 15–16, 153, 158–179; Deazley, supra, at 114–126. Many early colonial copyright statutes, patterned after the Statute of Anne, also stated that copyright’s objective was to encourage authors to produce new works and thereby improve learning. See U. S. Copyright Office, Copyright Enactments, Bulletin No. 3, pp. 1, 6, 10, 11, 17, 19 (rev. 1963) (statutes of Connecticut, New Jersey, Penn­ sylvania, South Carolina, Georgia, and New York); Wal­ terscheid 74–75; Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Tech. L. J. 1427, 1444– 1450 (2010). At least, that was the predominant view expressed to, or by, the Founders. Patterson 93. Thomas Jefferson, for example, initially expressed great uncertainty as to whether the Constitution should authorize the grant of copyrights and patents at all, writing that “the benefit even of limited monopolies is too doubtful” to warrant anything other than their “suppression.” Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 440, 443 (J. Boyd ed. 1956). James Madison also thought that “Monopolies . . . are justly classed among the greatest nu[i]sances in Govern­ ment.” Letter from James Madison to Thomas Jefferson Cite as: 565 U. S. ____ (2012) 5 BREYER, J., dissenting (Oct. 17, 1788), in 14 id., at 16, 21 (J. Boyd ed. 1958). But he argued that “in certain cases” such as copyright, mo­ nopolies should “be granted” (“with caution, and guarded with strictness agst abuse”) to serve as “compensation for a benefit actually gained to the community . . . which the owner might otherwise withhold from public use.” Mo­ nopolies. Perpetuities. Corporations. Ecclesiastical En­ dowments. in J. Madison, Writings 756 (J. Rakove ed. 1999) (emphasis added). Jefferson eventually came to agree with Madison, supporting a limited conferral of monopoly rights but only “as an encouragement to men to pursue ideas which may produce utility.” Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 6 Papers of Thomas Jefferson, at 379, 383 (J. Looney ed. 2009) (emphasis added). This utilitarian view of copyrights and patents, em­ braced by Jefferson and Madison, stands in contrast to the “natural rights” view underlying much of continental European copyright law—a view that the English booksellers promoted in an effort to limit their losses following the enactment of the Statute of Anne and that in part motivated the enactment of some of the colonial statutes. Patterson 158–179, 183–192. Premised on the idea that an author or inventor has an inherent right to the fruits of his labor, it mythically stems from a legend­ ary 6th-century statement of King Diarmed “ ‘to every cow her calf, and accordingly to every book its copy.’ ” A. Birrell, Seven Lectures on the Law and History of Copy­ right in Books 42 (1899). That view, though perhaps reflected in the Court’s opinion, ante, at 30, runs contrary to the more utilitarian views that influenced the writing of our own Constitution’s Copyright Clause. See S. Rick­ etson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, pp. 5–6 (1987) (The first French copyright laws “placed authors’ rights on a more elevated basis than the Act of Anne had done,” on the 6 GOLAN v. HOLDER BREYER, J., dissenting understanding that they were “simply according formal recognition to what was already inherent in the ‘very nature of things’ ”); S. Stewart, International Copyright and Neighbouring Rights 6–7 (2d ed. 1989) (describing the European system of droit d’auteur). This utilitarian understanding of the Copyright Clause has long been reflected in the Court’s case law. In Mazer, for example, the Court refers to copyright as embodying the view that “encouragement of individual effort by per- sonal gain is the best way to advance public welfare through the talents of authors and inventors.” 347 U.S., at 219 (emphasis added). In Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), the Court says that underlying copyright is the understanding that “[c]reative work is to be encouraged and rewarded, but private moti- vation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Id., at 156 (emphasis added). And in Sony Corp. of Amer- ica v. Universal City Studios, Inc., 464 U.S. 417 (1984), the Court, speaking of both copyrights and patents, points out that the “monopoly privileges that Congress may author­ ize are . . . [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors . . . by the provision of a special reward.” Id., at 429 (emphasis added); see also, e.g., Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966) (The “constitutional command . . . ‘[to] promote the Progress [of Science]’ . . . is the stand- ard expressed in the Constitution and it may not be ig­ nored”); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The sole interest of the United States . . . lie[s] in the general benefits derived by the public from the labors of authors”). Congress has expressed similar views in congressional Reports on copyright legislation. Thus, for example, an Cite as: 565 U. S. ____ (2012) 7 BREYER, J., dissenting 1892 House Report states: “The object to be attained and the reason for the con­ stitutional grant of power are imbedded in the grant itself. They are ‘to promote the progress of science and the useful arts.’ . . . [The Clause says] nothing . . . about any desire or purpose to secure to the author or inventor his ‘natural right to his property.’ ” H. R. Rep. No. 1494, 52d Cong., 1st Sess., 2. Similarly, the congressional authors of the landmark 1909 Copyright Act wrote: “The Constitution . . . provides that Congress shall have the power to grant [copyrights] . . . [n]ot primari­ ly for the benefit of the author, . . . but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and inven- tion, to give some bonus to authors and inventors.” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). And they went on to say: “Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the pub­ lic that outweighs the evils of the temporary monop­ oly.” Ibid. The upshot is that text, history, and precedent demon­ strate that the Copyright Clause places great value on the power of copyright to elicit new production. Congress in particular cases may determine that copyright’s ability to do so outweighs any concomitant high prices, administra­ tive costs, and restrictions on dissemination. And when it does so, we must respect its judgment. See Eldred, 537 8 GOLAN v. HOLDER BREYER, J., dissenting U. S., at 222. But does the Clause empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural pur- poses—all without providing any additional incentive for the production of new material? That is the question before us. And, as I have said, I believe the answer is no. Congress in this statute has exceeded what are, under any plausible reading of the Copyright Clause, its permissible limits. II The Act before us says that it “restores” American copy­ right to a set of works, which, for the most part, did not previously enjoy American copyright protection. These works had fallen into America’s public domain, but as of the “restoration” date, they had not yet fallen into the pub­ lic domain of the foreign country where they originated. The statute covers works originating almost anywhere outside the United States. See 17 U.S. C. §104A(h)(3) (setting out eligibility criteria); U. S. Copyright Office, Circular No. 38A: International Copyright Relations of the United States (2010). The relevant set of works consists primarily of works originating abroad that did not obtain, or at some point lost, American copyright protection be­ cause (1) the author failed to comply with applicable American copyright formalities (such as notice or renew­ al), or (2) the nation in which they were first published then lacked copyright relations with the United States, or (3) they are sound recordings fixed before February 15, 1972. §104A(h)(6)(C). A work must also satisfy other technical requirements: It must have had a rightholder who was a national or resident of an eligible country on the day it was created; and it cannot have been published in the United States within 30 days of its first publication. Cite as: 565 U. S. ____ (2012) 9 BREYER, J., dissenting §104A(h)(6)(D). The Act grants these works a copyright that expires at the time it would have expired had the author obtained a full American copyright term starting from the date on which the work was first published (in the foreign country). §104A(a)(1)(B). The Act mainly applies to works first published abroad between 1923 and 1989. It does not apply significantly to earlier works because any work published before 1921 would have fallen into the public domain before 1977 had it received a full American copyright term, while works published between 1921 and 1923 obtained a “restored” copyright that expired before the 1998 Sonny Bono Copy­ right Term Extension Act, and so could have lasted two years at most. See Tit. I, §101, 90 Stat. 2574 (extending the copyright term of works still under copyright in 1977 to 75 years); 17 U.S. C. §304(b) (extending the copyright term of works still under copyright in 1998 to 95 years). It has less impact on more recent works because in 1989 the United States became a Berne member, abolished the copyright notice requirement, and thenceforth provided prospective copyright protection throughout the Berne Union. See R. Schechter & J. Thomas, Intellectual Prop­ erty: The Law of Copyrights, Patents and Trademarks 75– 77 (2003); §7, 102 Stat. 2857–2858 (codified as amended at 17 U.S. C. §§401–406). Despite these temporal limitations, the Act covers vast numbers of works. The first category includes works published in countries that had copyright relations with the United States during this time period, such as most of Western Europe and Latin America, Australia, and Japan, see Circular No. 38A, supra, at 2–10, whose authors did not satisfy American copyright formalities, perhaps be­ cause the author, who may not have sought an American copyright, published the book abroad without proper American notice, or perhaps because the author obtained a valid American copyright but failed to renew it. 10 GOLAN v. HOLDER BREYER, J., dissenting The second category (works that entered the public domain due to a lack of copyright relations) includes, among others, all works published in Russia and other countries of the former Soviet Union before May 1973 (when the U. S. S. R. joined the Universal Copyright Con­ vention (UCC)), all works published in the People’s Repub­ lic of China before March 1992 (when bilateral copyright relations between the People’s Republic and the United States were first established), all South Korean works published before October 1987 (when South Korea joined the UCC), and all Egyptian and Turkish works published before March 1989 (when the United States joined Berne). See id., at 2–10, and 11, nn. 2, 5, 6. The third category covers all sound recordings from eligible foreign countries published after February 15, 1972. The practical significance of federal copyright resto­ ration to this category of works is less clear, since these works received, and continued to receive, copyright protec­ tion under state law. See 17 U.S. C. §301(c). Apparently there are no precise figures about the num­ ber of works the Act affects, but in 1996 the then-Register of Copyrights, Marybeth Peters, thought that they “proba­ bly number in the millions.” The Year in Review: Accom­ plishments and Objectives of the U. S. Copyright Office, 7 Ford. Intellectual Property Media & Entertainment L. J. 25, 31 (1996). A The provision before us takes works from the public domain, at least as of January 1, 1996. See §104A(h)(2)(A) (setting “restoration” dates). It then restricts the dissemi­ nation of those works in two ways. First, “restored copyright” holders can now charge fees for works that consumers previously used for free. The price of a score of Shostakovich’s Preludes and Fugues Op. 87, for example, has risen by a multiple of seven. Brief for Cite as: 565 U. S. ____ (2012) 11 BREYER, J., dissenting Conductors Guild et al. as Amici Curiae 11. And, as the Court recognizes, an orchestra that once could perform “Peter and the Wolf . . . free of charge” will now have to buy the “right to perform it . . . in the marketplace.” Ante, at 29. But for the case of certain “derivative” works, §104A(d)(3), the “restored copyright” holder, like other copyright holders, can charge what the market will bear. If a school orchestra or other nonprofit organization can­ not afford the new charges, so be it. They will have to do without—aggravating the already serious problem of cultural education in the United States. See Brief for Conductors Guild et al. as Amici Curiae 4–5, 7–8 (describ­ ing the inability of many orchestras to pay for the rental of sheet music covered by “restored copyright[s]”). Second, and at least as important, the statute creates administrative costs, such as the costs of determining whether a work is the subject of a “restored copyright,” searching for a “restored copyright” holder, and negotiat­ ing a fee. Congress has tried to ease the administrative burden of contacting copyright holders and negotiating prices for those whom the statute calls “reliance part[ies],” namely those who previously had used such works when they were freely available in the public domain. §104A(h)(4). But Congress has done nothing to ease the administrative burden of securing permission from copy­ right owners that is placed upon those who want to use a work that they did not previously use, and this is a partic­ ular problem when it comes to “orphan works”—older and more obscure works with minimal commercial value that have copyright owners who are difficult or impossible to track down. Unusually high administrative costs threaten to limit severely the distribution and use of those works— works which, despite their characteristic lack of economic value, can prove culturally invaluable. There are millions of such works. For example, accord­ ing to European Union figures, there are 13 million or­ 12 GOLAN v. HOLDER BREYER, J., dissenting phan books in the European Union (13% of the total number of books in-copyright there), 225,000 orphan films in European film archives, and 17 million orphan photo­ graphs in United Kingdom museums. A. Vuopala, As­ sessment of the Orphan works issue and Costs for Rights Clearance 19, 25 (2010), online at http://ec.europa.eu/ information_society/activities/digital_libraries/doc/reports_ orphan/anna_report.pdf (all Internet materials as visited Jan. 13, 2012, and available in Clerk of Court’s case file). How is a university, a film collector, a musician, a data­ base compiler, or a scholar now to obtain permission to use any such lesser known foreign work previously in the American public domain? Consider the questions that any such individual, group, or institution usually must answer: Is the work eligible for restoration under the statute? If so, who now holds the copyright—the author? an heir? a publisher? an association? a long-lost cousin? Whom must we contact? What is the address? Suppose no one answers? How do we conduct a negotiation? To find answers to these, and similar questions, costs money. The cost to the University of Michigan and the Institute of Museum and Library Services, for example, to determine the copyright status of books contained in the HathiTrust Digital Library that were published in the United States from 1923 to 1963 will exceed $1 million. Brief for American Library Assn. et al. as Amici Curiae 15. It is consequently not surprising to learn that the Los Angeles Public Library has been unable to make its collec­ tion of Mexican folk music publicly available because of problems locating copyright owners, that a Jewish cultural organization has abandoned similar efforts to make avail­ able Jewish cultural music and other materials, or that film preservers, museums, universities, scholars, database compilers, and others report that the administrative costs associated with trying to locate foreign copyright owners have forced them to curtail their cultural, scholarly, or Cite as: 565 U. S. ____ (2012) 13 BREYER, J., dissenting other work-preserving efforts. See, e.g., Comments of the Library Copyright Alliance in Response to the U. S. Copy­ right Office’s Inquiry on Orphan Works 5 (Mar. 25, 2005), online at http://www.arl.org/bm~doc/lcacomment0305.pdf; Comments of Creative Commons and Save The Music in Response to the U. S. Copyright Office’s Inquiry on Orphan Works (Mar. 25, 2005), online at http:// www.copyright.gov/orphan/comments/OW0643-STM- CreativeCommons.pdf; General Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copy­ rights and Trademarks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., 131, 273 (1994) (hereinaf­ ter Joint Hearing) (statement of Larry Urbanski, Chair­ man of the Fairness in Copyright Coalition and President of Moviecraft, Inc.); Brief for American Library Assn. et al. as Amici Curiae 6–23; Brief for Creative Commons Corp. as Amicus Curiae 7–8; Brief for Project Petrucci, LLC, as Amicus Curiae 10–11. These high administrative costs can prove counterpro­ ductive in another way. They will tempt some potential users to “steal” or “pirate” works rather than do without. And piracy often begets piracy, breeding the destructive habit of taking copyrighted works without paying for them, even where payment is possible. Such habits ignore the critical role copyright plays in the creation of new works, while reflecting a false belief that new creation appears by magic without thought or hope of compensation. B I recognize that ordinary copyright protection also comes accompanied with dissemination-restricting royalty charges and administrative costs. But here the re­ 14 GOLAN v. HOLDER BREYER, J., dissenting strictions work special harm. For one thing, the foreign location of restored works means higher than ordinary administrative costs. For another, the statute’s technical requirements make it very difficult to establish whether a work has had its copyright restored by the statute. Gard, In the Trenches with §104A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court, 64 Vand. L. Rev. En Banc 199, 216–220 (2011) (describing difficulties encountered in compiling the in­ formation necessary to create an online tool to determine whether the statute applies in any given case). Worst of all, “restored copyright” protection removes material from the public domain. In doing so, it reverses the payment expectations of those who used, or intended to use, works that they thought belonged to them. Were Congress to act similarly with respect to well-established property rights, the problem would be obvious. This stat­ ute analogously restricts, and thereby diminishes, Ameri­ cans’ preexisting freedom to use formerly public domain material in their expressive activities. Thus, while the majority correctly observes that the dissemination-restricting harms of copyright normally present problems appropriate for legislation to resolve, ante, at 31–32, the question is whether the Copyright Clause permits Congress seriously to exacerbate such a problem by taking works out of the public domain without a countervailing benefit. This question is appropriate for judicial resolution. Indeed, unlike Eldred where the Court had to decide a complicated line-drawing question—when is a copyright term too long?—here an easily administra­ ble standard is available—a standard that would require works that have already fallen into the public domain to stay there. The several, just mentioned features of the present statute are important, for they distinguish it from other copyright laws. By removing material from the public Cite as: 565 U. S. ____ (2012) 15 BREYER, J., dissenting domain, the statute, in literal terms, “abridges” a preexist­ ing freedom to speak. In practical terms, members of the public might well have decided what to say, as well as when and how to say it, in part by reviewing with a view to repeating, expression that they reasonably believed was, or would be, freely available. Given these speech implications, it is not surprising that Congress has long sought to protect public domain material when revising the copyright laws. See infra, at 19 (listing instances). And this Court has assumed the particular importance of public domain material in roughly analogous circumstanc­ es. See Graham, 383 U.S., at 6 (“Congress may not au­ thorize the issuance of patents whose effects are to remove existent knowledge from the public domain”); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 484 (1974) (trade secret protection is not incompatible with “policy that matter once in the public domain must remain in the public do­ main”); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 (1975) (First Amendment prohibits sanctioning press for publishing material disclosed in public court docu­ ments); see also Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33 (2003) (“The right to copy . . . once a copyright has expired . . . passes to the public” (internal quotation marks omitted)). Moreover, whereas forward-looking copyright laws tend to benefit those whose identities are not yet known (the writer who has not yet written a book, the musician who has not yet composed a song), when a copyright law is primarily backward looking the risk is greater that Con­ gress is trying to help known beneficiaries at the expense of badly organized unknown users who find it difficult to argue and present their case to Congress. In Eldred, I thought this problem was severe. See generally 537 U.S., at 243–266 (dissenting opinion). And in light of the fact that Congress, with one minor exception, heard testimony only from the representatives of existing copyright hold­ 16 GOLAN v. HOLDER BREYER, J., dissenting ers, who hoped that passage of the statute would enable them to benefit from reciprocal treatment of American authors abroad, infra, at 21, I cannot say that even here the problem, while much diminished, was nonexistent. I agree with the majority that, in doing so, this statute does not discriminate among speakers based on their viewpoints or subject matter. Ante, at 27. But such con­ siderations do not exhaust potential First Amendment problems. Cf. Sorrell v. IMS Health Inc., 564 U. S. ___, ___ (2011) (slip op., at 8) (finding First Amendment prob­ lem in statute that prohibits drug manufacturers from using publicly available prescriber-identifying information in their marketing efforts in part because it “disfavor[ed] specific speakers”); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 659 (1994) (“Regulations that discrim­ inate among media, or among different speakers within a single medium, often present serious First Amendment concerns”). Taken together, these speech-related harms (e.g., re­ stricting use of previously available material; reversing payment expectations; rewarding rent-seekers at the public’s expense) at least show the presence of a First Amendment interest. And that is enough. For present purposes, I need not decide whether the harms to that interest show a violation of the First Amendment. I need only point to the importance of interpreting the Constitu­ tion as a single document—a document that we should not read as setting the Copyright Clause and the First Amendment at cross-purposes. Nor need I advocate the application here of strict or specially heightened review. I need only find that the First Amendment interest is im­ portant enough to require courts to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright­ related justifications for the serious harms, including speech-related harms, which the Act seems likely to Cite as: 565 U. S. ____ (2012) 17 BREYER, J., dissenting impose. C 1 This statute does not serve copyright’s traditional public ends, namely the creation of monetary awards that “moti­ vate the creative activity of authors,” Sony, 464 U.S., at 429, “encourag[e] individual effort,” Mazer, 347 U.S., at 219, and thereby “serve the cause of promoting broad public availability of literature, music, and the other arts,” Twentieth Century Music, 422 U.S., at 156. The statute grants its “restored copyright[s]” only to works already produced. It provides no monetary incentive to produce anything new. Unlike other American copyright statutes from the time of the Founders onwards, including the statute at issue in Eldred, it lacks any significant copy­ right-related quid pro quo. The majority seeks to avoid this awkward fact by refer­ ring to past congressional practice that mostly suggests that Congress may provide new or increased protection both to newly created and to previously created, works. Ante, at 16, 18; Act of May 31, 1790, §1, 1 Stat. 124 (con­ ferring its new federal copyright on new works as well as old); Act of July 3, 1832, §3, 4 Stat. 559 (authorizing new patents for past and future inventors who inadvertently failed to comply with applicable statutory formalities); McClurg v. Kingsland, 1 How. 202 (1843) (applying an act deeming a past or future inventor’s patent valid despite it being briefly used by, for example, the inventor’s employ­ er). I do not dispute that copyright power. Insofar as such a statute does the former, i.e., extends protection to newly created material, it embodies copyright’s traditional justi­ fication—eliciting new production. And I do not doubt that Congress may then also include existing works within the scope of, say, increased protection for equitable and administrative reasons. See Eldred, 537 U.S. at 204, 18 GOLAN v. HOLDER BREYER, J., dissenting 214–215 (describing equitable reasons for applying newly extended copyright terms to future and existing copyrights alike). The statute before us, however, does not directly elicit any new production. Compare id., at 204–208; (ma­ jority opinion) (noting that statute’s extended term would apply to newly created material, and finding that the determination of the likelihood of its eliciting new produc­ tion in practice was a matter for Congress to determine), with id., at 243–267 (BREYER, J., dissenting) (expressing the view that there is little likelihood, in practice, that the statute would elicit new material). See also Walterscheid 219 (the 1790 Congress likely thought it was substituting federal protection for preexisting state common-law pro­ tections); Maher, Copyright Term, Retrospective Exten­ sion, and the Copyright Law of 1790 in Historical Context, 49 J. Copyright Soc. USA 1021, 1023–1024, and n. 8 (2002) (numerical estimate suggesting that 1790 Act removed only a small number of books from public domain). The other statutes to which the majority refers are private bills, statutes retroactively granting protection in wartime, or the like. Ante, at 16–19; Act of Feb. 19, 1849, ch. 57, 9 Stat. 763 (Levi Corson); Act of June 23, 1874, ch. 534, 18 Stat., pt. 3, p. 618 (Tod Helmuth); Act of Feb. 17, 1898, ch. 29, 30 Stat. 1396 (Judson Jones); Act of Dec. 18, 1919, ch. 11, 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732; see also Evans v. Jordan, 9 Cranch 199 (1815) (upholding a private bill restoring patent protection to a flour mill). But special circumstances, like wars, hurri­ canes, earthquakes, and other disasters, prevent the realization in practice of a reasonable expectation of secur­ ing or maintaining a preexisting right. Private bills are designed to provide special exceptions for comparable equitable reasons. See also Act of Mar. 3, 1893, ch. 215, 27 Stat. 743 (similar, as far as I can tell). To find in these laws an important analogy to the present law, which for Cite as: 565 U. S. ____ (2012) 19 BREYER, J., dissenting the most part covers works that the author did not expect to protect in America (and often did not particularly want to protect), seems somewhat farfetched. In fact, Congressional practice shows the contrary. It consists of a virtually unbroken string of legislation pre­ venting the withdrawal of works from the public domain. See, e.g., Berne Convention Implementation Act of 1988, §12, 102 Stat. 2860 (the Act “does not provide copyright protection for any work that is in the public domain in the United States”); Copyright Act of 1976, Tit. I, §101, 90 Stat. 2573 (declining to extend copyright protection to any work that is in the public domain prior to the Act taking effect); Copyright Act of 1909, §7, 35 Stat. 1077 (“[N]o copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States”); Act to Amend the Several Acts Respecting Copy Rights §16, 4 Stat. 439 (the Act “shall not extend to any copyright heretofore secured, the term of which has already expired”); see also H. R. Rep. No. 1742, 87th Cong., 2d Sess., 3 (1962) (expressing concern that because “it is not possible to revive expired terms of copyright, it seems to the committee to be desira­ ble to suspend further expiration of copyright for a period long enough to enable the working out of remaining obsta­ cles to the overall revision of the copyright law”). 2 The majority makes several other arguments. First, it argues that the Clause does not require the “creation of at least one new work,” ante, at 20, but may instead “promote the Progress of Science” in other ways. And it specifically mentions the “dissemination of existing and future works” as determinative here. Ante, at 20–23, and n. 25. The industry experts to whom the majority refers argue that 20 GOLAN v. HOLDER BREYER, J., dissenting copyright protection of already existing works can help, say, music publishers or film distributers raise prices, produce extra profits and consequently lead them to pub­ lish or distribute works they might otherwise have ig­ nored. But ordinarily a copyright—since it is a monopoly on copying—restricts dissemination of a work once pro­ duced compared to a competitive market. And simply making the industry richer does not mean that the indus­ try, when it makes an ordinary forward-looking economic calculus, will distribute works not previously distributed. The industry experts might mean that temporary extra profits will lead them to invest in the development of a market, say, by advertising. But this kind of argument, which can be made by distributers of all sorts of goods, ranging from kiwi fruit to Swedish furniture, has little if anything to do with the nonrepeatable costs of initial creation, which is the special concern of copyright protec­ tion. See supra, at 2–3. Moreover, the argument proves too much. It is the kind of argument that the Stationers’ Company might well have made and which the British Parliament rejected. Cf. Patterson 154–155 (describing failed booksellers’ bill seeking protection from foreign competition through an extension of the copyright term). It is the kind of argu­ ment that could justify a legislature’s withdrawing from the public domain the works, say, of Hawthorne or of Swift or for that matter the King James Bible in order to en­ courage further publication of those works; and, it could even more easily justify similar action in the case of lesser known early works, perhaps those of the Venerable Bede. The Court has not, to my knowledge, previously accepted such a rationale—a rationale well removed from the spe­ cial economic circumstances that surround the nonrepeat­ able costs of the initial creation of a “Writing.” Supra, at 2. And I fear that doing so would read the Copyright Clause as if it were a blank check made out in favor of Cite as: 565 U. S. ____ (2012) 21 BREYER, J., dissenting those who are not themselves creators. It is not surprising that the copyright holders’ repre­ sentatives who appeared before Congress did not empha­ size this argument. (With one minor exception only those representatives appeared, see generally Joint Hearing; the Copyright Office did not testify, id., at 239.) Rather, they focused on the Berne Convention itself. By that time, Congress had already protected all new works of Berne members. But it had not provided additional protection to preexisting foreign works that were then in the American public domain. Industry witnesses testified that with­ drawing such works from the American public domain would permit foreign copyright owners to charge American consumers more for their products; and that, as a result, the United States would be able to persuade foreign coun­ tries to allow American holders of preexisting copyrights to charge foreign customers more money for their prod­ ucts. See id., at 241 (statement of Eric Smith, Executive Director and General Counsel, International Intellectual Property Alliance) (“[F]ailure to [comply with Article 18] will . . . undermine the ability of the United States to press other countries to implement the same sort of protection in their implementing legislation currently pending in many legislatures around the globe”); id., at 253 (statement of Matt Gerson, Vice President for Congressional Affairs, Motion Picture Assn. of America) (similar). See also id., at 85 (statement of Xavier Becerra, House Judiciary Commit­ tee member) (“[R]etroactivity . . . is probably the best way to ensure that some of our older American works, any­ thing from Motown, to ‘Star Trek,’ to ‘The Hardy Boys’ get the protection in some of these emerging foreign markets. It is important to ensure that countries no longer use our U. S. law as an excuse for not extending retroactive copy­ right protections to some of our own works”). But see id., at 272–279 (statement of Larry Urbanski, Chairman of the Fairness in Copyright Coalition and President of 22 GOLAN v. HOLDER BREYER, J., dissenting Moviecraft Inc.) (testifying against restoration on grounds similar to those set out, supra, at 10–13). This argument, whatever its intrinsic merits, is an ar­ gument that directly concerns a private benefit: how to obtain more money from the sales of existing products. It is not an argument about a public benefit, such as how to promote or to protect the creative process. Third, the majority points out that the statute “gives [authors] nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.” Ante, at 30. But insofar as it suggests that copyright should in general help authors obtain greater monetary rewards than needed to elicit new works, it rests upon primarily European, but not American, copyright concepts. See supra, at 5–6. Fourth, the majority argues that this statutory provi­ sion is necessary to fulfill our Berne Convention obliga­ tions. Ante, at 4–8. The Treaty, in Article 18, says that the “Convention shall apply to all works which, at the moment of its coming into force [i.e., 1989 in the case of the United States] have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.” Berne Convention for the Protection of Literary and Artistic Works, Art. 18(1), Sept. 9, 1886, as revised at Stockholm on July 14, 1967, 828 U. N. T. S. 221, 251. The majority and Government say that this means we must protect the foreign works at issue here. And since the Berne Convention, taken as a whole, provides incentives for the creation of new works, I am willing to speculate, for argument’s sake, that the statute might indirectly encourage production of new works by making the United States’ place in the international copyright regime more secure. Still, I cannot find this argument sufficient to save the statute. For one thing, this is a dilemma of the Govern­ ment’s own making. The United States obtained the Cite as: 565 U. S. ____ (2012) 23 BREYER, J., dissenting benefits of Berne for many years despite its failure to enact a statute implementing Article 18. But in 1994, the United States and other nations signed the Agreement on Trade-Related Aspects of Intellectual Property Rights, which enabled signatories to use World Trade Organiza­ tion dispute resolution mechanisms to complain about other members’ Berne Convention violations. But at that time the Government, although it successfully secured reservations protecting other special features of American copyright law, made no effort to secure a reservation permitting the United States to keep some or all restored works in the American public domain. And it made no effort to do so despite the fact that Article 18 explicitly authorizes countries to negotiate exceptions to the Arti­ cle’s retroactivity principle. See Art. 18(3), ibid. (“The application of [the retroactivity] principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union” (emphasis added)); Gervais, Golan v. Holder: A Look at the Constraints Imposed by the Berne Conven­ tion, 64 Vand. L. Rev. En Banc 147, 151–152 (2011); Gard, 64 Vand. L. Rev. En Banc, at 206. For another thing, the Convention does not require Congress to enact a statute that causes so much damage to public domain material. Article 18(3) also states that “the respective countries shall determine, each in so far as it is concerned, the conditions of application of this princi- ple.” 18 U. N. T. S., at 251 (emphasis added). Congress could have alleviated many of the costs that the statute imposes by, for example, creating forms of compulsory licensing, requiring “restored copyright” holders to provide necessary administrative information as a condition of protection, or insisting upon “reasonable royalties.” Cf. S. 2913, 110th Cong., 2d Sess. (2008) (legislation that would have limited judicial remedies against users of orphan works); H. R. 5889, 110th Cong., 2d Sess. (2008) 24 GOLAN v. HOLDER BREYER, J., dissenting (House version of same); American Society of Compos- ers, Authors and Publishers, http://www.ascap.com/ licensing/termsdefined.aspx (society of music copyright owners offering blanket licenses that give users the unlim­ ited right to perform any of its members’ songs for a fixed fee, thus reducing negotiation and enforcement costs). To say this is not to criticize the Convention or our joining it. Rather, it is to argue that the other branches of Government should have tried to follow the Convention and in particular its provisions offering compliance flexi­ bility. The fact that the statute has significant First Amendment costs is relevant in this respect, for that Amendment ordinarily requires courts to evaluate less restrictive, alternative possibilities. Doing so here, reveals that neither Congress nor the Executive took advantage of less-restrictive methods of compliance that the Convention itself provides. And that fact means that the Convention cannot provide the statute with a constitutionally suffi­ cient justification that is otherwise lacking. III The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute. I respectfully dissent from the Court’s contrary conclusion

In order “[t]o promote the Progress of Science” (by which term the Founders meant “learning” or “knowledge”), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors the exclusive Right to their Writings.” Art. I, cl. 8. This “exclusive Right” allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new mate­ rial. In this sense, a copyright is, in Macaulay’s words, a “tax on readers for the purpose of giving a bounty to writ­ ers”—a bounty designed to encourage new production. As the Court said in “ ‘[t]he economic philosophy behind the [Copyright] [C]lause is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.’ ” 212, n. 18 (quoting 219 (1954)). See T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913); E. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Per­ spective 125–12 (2002) (hereinafter Walterscheid). The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works— 2 GOLAN v. HOLDER BREYER, J., dissenting works that have already been created and already are in the American public domain. At the same time, the stat­ ute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books—books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge through the world. See infra, at 10–13. In my view, the Copyright Clause does not authorize Congress to enact this statute. And I consequently dissent. I The possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection. The Constitution’s words, “exclusive Right,” “limited Times,” “Progress of Science,” viewed through the lens of history underscore the legal significance of what the Court in referred to as the “economic philoso­ phy behind the Copyright Clause.” n. 18 (brackets omitted). That philosophy understands copy­ right’s grants of limited monopoly privileges to authors as private benefits that are conferred for a public reason—to elicit new creation. Yet, as the Founders recognized, monopoly is a two­ edged sword. On the one hand, it can encourage produc­ tion of new works. In the absence of copyright protection, anyone might freely copy the products of an author’s creative labor, appropriating the benefits with incur­ ring the nonrepeatable costs of creation, thereby deterring authors from exerting themselves in the first place. On the other hand, copyright tends to restrict the dissemina­ tion (and use) of works once produced either because the absence of competition translates directly into higher consumer prices or because the need to secure copying permission sometimes imposes administrative costs that make it difficult for potential users of a copyrighted work to find its owner and strike a bargain. See W. Landes & Cite as: 55 U. S. (2012) 3 BREYER, J., dissenting R. Posner, The Economic Structure of Intellectual Proper­ ty Law 8–70, 213–214 Consequently, the original British copyright statute, the Constitution’s Framers, and our case law all have recognized copyright’s resulting and necessary call for balance. At the time the Framers wrote the Constitution, they were well aware of Britain’s 18th-century copyright stat­ ute, the Statute of Anne, 8 Anne, ch. 19 (1710), and they were aware of the legal struggles that produced it. That statute sought in part to control, and to limit, preexisting monopolies that had emerged in the book trade as a result of the Crown’s having previously granted special privileg­ es to royal favorites. The Crown, for example, had char­ tered the Stationers’ Company, permitting it to regulate and to censor works on the government’s behalf. The Stationers had thereby acquired control over the disposi­ tion of copies of published works, from which emerged the Stationers’ copyright—a right conferred on company members, not authors, that was deemed to exist in perpe­ tuity. See L. Patterson, Copyright in Historical Perspec­ tive 1–1, 114–150 (198) (hereinafter Patterson); Walter­ scheid 59–5; Gómez-Arostegui, The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, 25 Berkeley Tech. L. J. 1247, 1250–125 (2010). To prevent the continuation of the booksellers’ monopoly and to encourage authors to write new books, Parliament enacted the Statute of Anne. It bore the title: “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Cop­ ies, during the Times therein mentioned.” And it granted authors (not publishers) and their assignees the “sole Right and Liberty of printing” their works for limited periods of time in order to encourage them “to compose and write useful Books.” 8 Anne, ch. 19, As one historian has put it, “[t]he central plank of the Act was a cultural quid pro quo. To encourage 4 GOLAN v. HOLDER BREYER, J., dissenting ‘learned Men to compose and write useful Books’ the state would provide a guaranteed, if temporally limited, right to print and reprint those works.” The Myth of Copyright at Common Law, 2 Camb. L. J. 10, 108 At first, in their attempts to minimize their losses, the booksellers argued that authors had a perpetual com­ mon-law copyright in their works deriving from their natural rights as creators. But the House of Lords ulti­ mately held in Donaldson v. Beckett, 1 Eng. Rep. 837 (1774), that the Statute of Anne had transformed any such perpetual common-law copyright into a copyright of a limited term designed to serve the public interest. Patter­ son 15–1, 153, 158–179; at 114–12. Many early colonial copyright statutes, patterned after the Statute of Anne, also stated that copyright’s objective was to encourage authors to produce new works and thereby improve learning. See U. S. Copyright Office, Copyright Enactments, Bulletin No. 3, pp. 1, 10, 11, 17, 19 (rev. 193) (statutes of Connecticut, New Jersey, Penn­ sylvania, Sh Carolina, Georgia, and New York); Wal­ terscheid 74–75; Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Tech. L. J. 1427, 1444– 1450 (2010). At least, that was the predominant view expressed to, or by, the Founders. Patterson 93. Thomas Jefferson, for example, initially expressed great uncertainty as to whether the Constitution should authorize the grant of copyrights and patents at all, writing that “the benefit even of limited monopolies is too doubtful” to warrant anything other than their “suppression.” Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 440, 443 (J. Boyd ed. 195). James Madison also thought that “Monopolies are justly classed among the greatest nu[i]sances in Govern­ ment.” Letter from James Madison to Thomas Jefferson Cite as: 55 U. S. (2012) 5 BREYER, J., dissenting (Oct. 17, 1788), in 14 But he argued that “in certain cases” such as copyright, mo­ nopolies should “be granted” (“with caution, and guarded with strictness agst abuse”) to serve as “compensation for a benefit actually gained to the community which the owner might otherwise withhold from public use.” Mo­ nopolies. Perpetuities. Corporations. Ecclesiastical En­ dowments. in J. Madison, Writings 75 (J. Rakove ed. 1999) Jefferson eventually came to agree with Madison, supporting a limited conferral of monopoly rights but only “as an encouragement to men to pursue ideas which may produce utility.” Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in Papers of Thomas Jefferson, at 379, 383 (J. Looney ed. 2009) This utilitarian view of copyrights and patents, em­ braced by Jefferson and Madison, stands in contrast to the “natural rights” view underlying much of continental European copyright law—a view that the English booksellers promoted in an effort to limit their losses following the enactment of the Statute of Anne and that in part motivated the enactment of some of the colonial statutes. Patterson 158–179, 183–192. Premised on the idea that an author or inventor has an inherent right to the fruits of his labor, it mythically stems from a legend­ ary th-century statement of King Diarmed “ ‘to every cow her calf, and accordingly to every book its copy.’ ” A. Birrell, Seven Lectures on the Law and History of Copy­ right in Books 42 (1899). That view, though perhaps reflected in the Court’s opinion, ante, at 30, runs contrary to the more utilitarian views that influenced the writing of our own Constitution’s Copyright Clause. See S. Rick­ etson, The Berne Convention for the Protection of Literary and Artistic Works: 188–198, pp. 5– (1987) (The first French copyright laws “placed authors’ rights on a more elevated basis than the Act of Anne had done,” on the GOLAN v. HOLDER BREYER, J., dissenting understanding that they were “simply according formal recognition to what was already inherent in the ‘very nature of things’ ”); S. Stewart, International Copyright and Neighbouring Rights –7 (2d ed. 1989) (describing the European system of droit d’auteur). This utilitarian understanding of the Copyright Clause has long been reflected in the Court’s case law. In Mazer, for example, the Court refers to copyright as embodying the view that “encouragement of individual effort by per- sonal gain is the best way to advance public welfare through the talents of authors and inventors.” 347 U.S., at 219 In Twentieth Century the Court says that underlying copyright is the understanding that “[c]reative work is to be encouraged and rewarded, but private moti- vation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” And in Sony Corp. of Amer- the Court, speaking of both copyrights and patents, points that the “monopoly privileges that Congress may author­ ize are [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors by the provision of a special reward.” (emphasis added); see also, e.g., (The “constitutional command ‘[to] promote the Progress [of Science]’ is the stand- ard expressed in the Constitution and it may not be ig­ nored”); Fox Film 28 U.S. 123, (“The sole interest of the United States lie[s] in the general benefits derived by the public from the labors of authors”). Congress has expressed similar views in congressional Reports on copyright legislation. Thus, for example, an Cite as: 55 U. S. (2012) 7 BREYER, J., dissenting 1892 House Report states: “The object to be attained and the reason for the con­ stitutional grant of power are imbedded in the grant itself. They are ‘to promote the progress of science and the useful arts.’ [The Clause says] nothing ab any desire or purpose to secure to the author or inventor his ‘natural right to his property.’ ” H. R. Rep. No. 1494, 52d Cong., 1st Sess., 2. Similarly, the congressional authors of the landmark 1909 Copyright Act wrote: “The Constitution provides that Congress shall have the power to grant [copyrights] [n]ot primari­ ly for the benefit of the author, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and inven- tion, to give some bonus to authors and inventors.” H. R. Rep. No. 2222, 0th Cong., 2d Sess., 7 (1909). And they went on to say: “Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the pub­ lic that weighs the evils of the temporary monop­ oly.” The upshot is that text, history, and precedent demon­ strate that the Copyright Clause places great value on the power of copyright to elicit new production. Congress in particular cases may determine that copyright’s ability to do so weighs any concomitant high prices, administra­ tive costs, and restrictions on dissemination. And when it does so, we must respect its judgment. See 537 8 GOLAN v. HOLDER BREYER, J., dissenting U. S., at 222. But does the Clause empower Congress to enact a statute that withdraws works from the public domain, brings ab higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural pur- poses—all with providing any additional incentive for the production of new material? That is the question before us. And, as I have said, I believe the answer is no. Congress in this statute has exceeded what are, under any plausible reading of the Copyright Clause, its permissible limits. II The Act before us says that it “restores” American copy­ right to a set of works, which, for the most part, did not previously enjoy American copyright protection. These works had fallen into America’s public domain, but as of the “restoration” date, they had not yet fallen into the pub­ lic domain of the foreign country where they originated. The statute covers works originating almost anywhere side the United States. See 17 U.S. C. 04A(h)(3) (setting eligibility criteria); U. S. Copyright Office, Circular No. : International Copyright Relations of the United States (2010). The relevant set of works consists primarily of works originating abroad that did not obtain, or at some point lost, American copyright protection be­ cause (1) the author failed to comply with applicable American copyright formalities (such as notice or renew­ al), or (2) the nation in which they were first published then lacked copyright relations with the United States, or (3) they are sound recordings fixed before February 15, 1972. 04A(h)()(C). A work must also satisfy other technical requirements: It must have had a rightholder who was a national or resident of an eligible country on the day it was created; and it cannot have been published in the United States within 30 days of its first publication. Cite as: 55 U. S. (2012) 9 BREYER, J., dissenting 04A(h)()(D). The Act grants these works a copyright that expires at the time it would have expired had the author obtained a full American copyright term starting from the date on which the work was first published (in the foreign country). 04A(a)(1)(B). The Act mainly applies to works first published abroad between 1923 and 1989. It does not apply significantly to earlier works because any work published before 1921 would have fallen into the public domain before 1977 had it received a full American copyright term, while works published between 1921 and 1923 obtained a “restored” copyright that expired before the 1998 Sonny Bono Copy­ right Term Extension Act, and so could have lasted two years at most. See Tit. I, 01, (extending the copyright term of works still under copyright in 1977 to 75 years); 17 U.S. C. (extending the copyright term of works still under copyright in 1998 to 95 years). It has less impact on more recent works because in 1989 the United States became a Berne member, abolished the copyright notice requirement, and thenceforth provided prospective copyright protection through the Berne Union. See R. Schechter & J. Thomas, Intellectual Prop­ erty: The Law of Copyrights, Patents and Trademarks 75– 77 ; –2858 (codified as amended at 17 U.S. C. §§401–40). Despite these temporal limitations, the Act covers vast numbers of works. The first category includes works published in countries that had copyright relations with the United States during this time period, such as most of Western Europe and Latin America, Australia, and Japan, see Circular No. at 2–10, whose authors did not satisfy American copyright formalities, perhaps be­ cause the author, who may not have sought an American copyright, published the book abroad with proper American notice, or perhaps because the author obtained a valid American copyright but failed to renew it. 10 GOLAN v. HOLDER BREYER, J., dissenting The second category (works that entered the public domain due to a lack of copyright relations) includes, among others, all works published in Russia and other countries of the former Soviet Union before May 1973 (when the U. S. S. R. joined the Universal Copyright Con­ vention (UCC)), all works published in the People’s Repub­ lic of China before March 1992 (when bilateral copyright relations between the People’s Republic and the United States were first established), all Sh Korean works published before October 1987 (when Sh Korea joined the UCC), and all Egyptian and Turkish works published before March 1989 (when the United States joined Berne). See at 2–10, and 11, nn. 2, 5, The third category covers all sound recordings from eligible foreign countries published after February 15, 1972. The practical significance of federal copyright resto­ ration to this category of works is less clear, since these works received, and continued to receive, copyright protec­ tion under state law. See 17 U.S. C. Apparently there are no precise figures ab the num­ ber of works the Act affects, but in 199 the then-Register of Copyrights, Marybeth Peters, thought that they “proba­ bly number in the millions.” The Year in Review: Accom­ plishments and Objectives of the U. S. Copyright Office, 7 Ford. Intellectual Property Media & Entertainment L. J. 25, 31 (199). A The provision before us takes works from the public domain, at least as of January 1, 199. See 04A(h)(2)(A) (setting “restoration” dates). It then restricts the dissemi­ nation of those works in two ways. First, “restored copyright” holders can now charge fees for works that consumers previously used for free. The price of a score of Shostakovich’s Preludes and Fugues Op. 87, for example, has risen by a multiple of seven. Brief for Cite as: 55 U. S. (2012) 11 BREYER, J., dissenting Conductors Guild et al. as Amici Curiae 11. And, as the Court recognizes, an orchestra that once could perform “Peter and the Wolf free of charge” will now have to buy the “right to perform it in the marketplace.” Ante, at 29. But for the case of certain “derivative” works, 04A(d)(3), the “restored copyright” holder, like other copyright holders, can charge what the market will bear. If a school orchestra or other nonprofit organization can­ not afford the new charges, so be it. They will have to do with—aggravating the already serious problem of cultural education in the United States. See Brief for Conductors Guild et al. as Amici Curiae 4–5, 7–8 (describ­ ing the inability of many orchestras to pay for the rental of sheet music covered by “restored copyright[s]”). Second, and at least as important, the statute creates administrative costs, such as the costs of determining whether a work is the subject of a “restored copyright,” searching for a “restored copyright” holder, and negotiat­ ing a fee. Congress has tried to ease the administrative burden of contacting copyright holders and negotiating prices for those whom the statute calls “reliance part[ies],” namely those who previously had used such works when they were freely available in the public domain. 04A(h)(4). But Congress has done nothing to ease the administrative burden of securing permission from copy­ right owners that is placed upon those who want to use a work that they did not previously use, and this is a partic­ ular problem when it comes to “orphan works”—older and more obscure works with minimal commercial value that have copyright owners who are difficult or impossible to track down. Unusually high administrative costs threaten to limit severely the distribution and use of those works— works which, despite their characteristic lack of economic value, can prove culturally invaluable. There are millions of such works. For example, accord­ ing to European Union figures, there are 13 million or­ 12 GOLAN v. HOLDER BREYER, J., dissenting phan books in the European Union (13% of the total number of books in-copyright there), 225,000 orphan films in European film archives, and 17 million orphan photo­ graphs in United Kingdom museums. A. Vuopala, As­ sessment of the Orphan works issue and Costs for Rights Clearance 19, 25 (2010), online at http://ec.europa.eu/ information_society/activities/digital_libraries/doc/reports_ orphan/anna_report.pdf (all Internet materials as visited Jan. 13, 2012, and available in Clerk of Court’s case file). How is a university, a film collector, a musician, a data­ base compiler, or a scholar now to obtain permission to use any such lesser known foreign work previously in the American public domain? Consider the questions that any such individual, group, or institution usually must answer: Is the work eligible for restoration under the statute? If so, who now holds the copyright—the author? an heir? a publisher? an association? a long-lost cousin? Whom must we contact? What is the address? Suppose no one answers? How do we conduct a negotiation? To find answers to these, and similar questions, costs money. The cost to the University of Michigan and the Institute of Museum and Library Services, for example, to determine the copyright status of books contained in the HathiTrust Digital Library that were published in the United States from 1923 to 193 will exceed $1 million. Brief for American Library Assn. et al. as Amici Curiae 15. It is consequently not surprising to learn that the Los Angeles Public Library has been unable to make its collec­ tion of Mexican folk music publicly available because of problems locating copyright owners, that a Jewish cultural organization has abandoned similar efforts to make avail­ able Jewish cultural music and other materials, or that film preservers, museums, universities, scholars, database compilers, and others report that the administrative costs associated with trying to locate foreign copyright owners have forced them to curtail their cultural, scholarly, or Cite as: 55 U. S. (2012) 13 BREYER, J., dissenting other work-preserving efforts. See, e.g., Comments of the Library Copyright Alliance in Response to the U. S. Copy­ right Office’s Inquiry on Orphan Works 5 (Mar. 25, 2005), online at http://www.arl.org/bm~doc/lcacomment0305.pdf; Comments of Creative Commons and Save The in Response to the U. S. Copyright Office’s Inquiry on Orphan Works (Mar. 25, 2005), online at http:// www.copyright.gov/orphan/comments/OW043-STM- CreativeCommons.pdf; General Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copy­ rights and Trademarks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., 131, 273 (hereinaf­ ter Joint Hearing) (statement of Larry Urbanski, Chair­ man of the Fairness in Copyright Coalition and President of Moviecraft, Inc.); Brief for American Library Assn. et al. as Amici Curiae –23; Brief for Creative Commons Corp. as Amicus Curiae 7–8; Brief for Project Petrucci, LLC, as Amicus Curiae 10–11. These high administrative costs can prove counterpro­ ductive in another way. They will tempt some potential users to “steal” or “pirate” works rather than do with. And piracy often begets piracy, breeding the destructive habit of taking copyrighted works with paying for them, even where payment is possible. Such habits ignore the critical role copyright plays in the creation of new works, while reflecting a false belief that new creation appears by magic with thought or hope of compensation. B I recognize that ordinary copyright protection also comes accompanied with dissemination-restricting royalty charges and administrative costs. But here the re­ 14 GOLAN v. HOLDER BREYER, J., dissenting strictions work special harm. For one thing, the foreign location of restored works means higher than ordinary administrative costs. For another, the statute’s technical requirements make it very difficult to establish whether a work has had its copyright restored by the statute. Gard, In the Trenches with 04A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court, 4 Vand. L. Rev. En Banc 199, 21–220 (2011) (describing difficulties encountered in compiling the in­ formation necessary to create an online tool to determine whether the statute applies in any given case). Worst of all, “restored copyright” protection removes material from the public domain. In doing so, it reverses the payment expectations of those who used, or intended to use, works that they thought belonged to them. Were Congress to act similarly with respect to well-established property rights, the problem would be obvious. This stat­ ute analogously restricts, and thereby diminishes, Ameri­ cans’ preexisting freedom to use formerly public domain material in their expressive activities. Thus, while the majority correctly observes that the dissemination-restricting harms of copyright normally present problems appropriate for legislation to resolve, ante, at 31–32, the question is whether the Copyright Clause permits Congress seriously to exacerbate such a problem by taking works of the public domain with a countervailing benefit. This question is appropriate for judicial resolution. Indeed, unlike where the Court had to decide a complicated line-drawing question—when is a copyright term too long?—here an easily administra­ ble standard is available—a standard that would require works that have already fallen into the public domain to stay there. The several, just mentioned features of the present statute are important, for they distinguish it from other copyright laws. By removing material from the public Cite as: 55 U. S. (2012) 15 BREYER, J., dissenting domain, the statute, in literal terms, “abridges” a preexist­ ing freedom to speak. In practical terms, members of the public might well have decided what to say, as well as when and how to say it, in part by reviewing with a view to repeating, expression that they reasonably believed was, or would be, freely available. Given these speech implications, it is not surprising that Congress has long sought to protect public domain material when revising the copyright laws. See infra, at 19 (listing instances). And this Court has assumed the particular importance of public domain material in roughly analogous circumstanc­ es. See 383 U.S., at (“Congress may not au­ thorize the issuance of patents whose effects are to remove existent knowledge from the public domain”); Kewanee Oil 41 U.S. 470, (trade secret protection is not incompatible with “policy that matter once in the public domain must remain in the public do­ main”); Cox Broadcasting 420 U.S. 49, 49 (First Amendment prohibits sanctioning press for publishing material disclosed in public court docu­ ments); see also Dastar (“The right to copy once a copyright has expired passes to the public” (internal quotation marks omitted)). Moreover, whereas forward-looking copyright laws tend to benefit those whose identities are not yet known (the writer who has not yet written a book, the musician who has not yet composed a song), when a copyright law is primarily backward looking the risk is greater that Con­ gress is trying to help known beneficiaries at the expense of badly organized unknown users who find it difficult to argue and present their case to Congress. In I thought this problem was severe. See generally 537 U.S., at 243–2 (dissenting opinion). And in light of the fact that Congress, with one minor exception, heard testimony only from the representatives of existing copyright hold­ 1 GOLAN v. HOLDER BREYER, J., dissenting ers, who hoped that passage of the statute would enable them to benefit from reciprocal treatment of American authors abroad, infra, at 21, I cannot say that even here the problem, while much diminished, was nonexistent. I agree with the majority that, in doing so, this statute does not discriminate among speakers based on their viewpoints or subject matter. Ante, at 27. But such con­ siderations do not exhaust potential First Amendment problems. Cf. Sorrell v. IMS Health Inc., 54 U. S. (2011) (slip op., at 8) (finding First Amendment prob­ lem in statute that prohibits drug manufacturers from using publicly available prescriber-identifying information in their marketing efforts in part because it “disfavor[ed] specific speakers”); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 22, 59 (“Regulations that discrim­ inate among media, or among different speakers within a single medium, often present serious First Amendment concerns”). Taken together, these speech-related harms (e.g., re­ stricting use of previously available material; reversing payment expectations; rewarding rent-seekers at the public’s expense) at least show the presence of a First Amendment interest. And that is enough. For present purposes, I need not decide whether the harms to that interest show a violation of the First Amendment. I need only point to the importance of interpreting the Constitu­ tion as a single document—a document that we should not read as setting the Copyright Clause and the First Amendment at cross-purposes. Nor need I advocate the application here of strict or specially heightened review. I need only find that the First Amendment interest is im­ portant enough to require courts to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright­ related justifications for the serious harms, including speech-related harms, which the Act seems likely to Cite as: 55 U. S. (2012) 17 BREYER, J., dissenting impose. C 1 This statute does not serve copyright’s traditional public ends, namely the creation of monetary awards that “moti­ vate the creative activity of authors,” Sony, 44 U.S., “encourag[e] individual effort,” Mazer, 347 U.S., at 219, and thereby “serve the cause of promoting broad public availability of literature, music, and the other arts,” Twentieth Century 422 U.S., The statute grants its “restored copyright[s]” only to works already produced. It provides no monetary incentive to produce anything new. Unlike other American copyright statutes from the time of the Founders onwards, including the statute at issue in it lacks any significant copy­ right-related quid pro quo. The majority seeks to avoid this awkward fact by refer­ ring to past congressional practice that mostly suggests that Congress may provide new or increased protection both to newly created and to previously created, works. Ante, at 1, 18; Act of May 31, 1790, (con­ ferring its new federal copyright on new works as well as old); Act of July 3, 1832, (authorizing new patents for past and future inventors who inadvertently failed to comply with applicable statutory formalities); (applying an act deeming a past or future inventor’s patent valid despite it being briefly used by, for example, the inventor’s employ­ er). I do not dispute that copyright power. Insofar as such a statute does the former, i.e., extends protection to newly created material, it embodies copyright’s traditional justi­ fication—eliciting new production. And I do not doubt that Congress may then also include existing works within the scope of, say, increased protection for equitable and administrative reasons. See 18 GOLAN v. HOLDER BREYER, J., dissenting 214–215 (describing equitable reasons for applying newly extended copyright terms to future and existing copyrights alike). The statute before us, however, does not directly elicit any new production. Compare at 204–208; (ma­ jority opinion) (noting that statute’s extended term would apply to newly created material, and finding that the determination of the likelihood of its eliciting new produc­ tion in practice was a matter for Congress to determine), with at 243–27 (BREYER, J., dissenting) (expressing the view that there is little likelihood, in practice, that the statute would elicit new material). See also Walterscheid 219 (the 1790 Congress likely thought it was substituting federal protection for preexisting state common-law pro­ tections); Maher, Copyright Term, Retrospective Exten­ sion, and the Copyright Law of 1790 in Historical Context, 49 J. Copyright Soc. USA 1021, 1023–1024, and n. 8 (2002) (numerical estimate suggesting that 1790 Act removed only a small number of books from public domain). The other statutes to which the majority refers are private bills, statutes retroactively granting protection in wartime, or the like. Ante, at 1–19; Act of Feb. 19, 1849, ch. 57, 9 Stat. 73 ; Act of June 23, 1874, ch. 534, 18 Stat., pt. 3, p. 18 (Tod Helmuth); Act of Feb. 17, 1898, ch. 29, 30 Stat. 139 ; Act of Dec. 18, 1919, ch. 11, 41 Stat. 38; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732; see also (upholding a private bill restoring patent protection to a flour mill). But special circumstances, like wars, hurri­ canes, earthquakes, and other disasters, prevent the realization in practice of a reasonable expectation of secur­ ing or maintaining a preexisting right. Private bills are designed to provide special exceptions for comparable equitable reasons. See also Act of Mar. 3, 1893, ch. 215, To find in these laws an important analogy to the present law, which for Cite as: 55 U. S. (2012) 19 BREYER, J., dissenting the most part covers works that the author did not expect to protect in America (and often did not particularly want to protect), seems somewhat farfetched. In fact, Congressional practice shows the contrary. It consists of a virtually unbroken string of legislation pre­ venting the withdrawal of works from the public domain. See, e.g., Berne Convention Implementation Act of 1988, 2, 102 Stat. 280 (the Act “does not provide copyright protection for any work that is in the public domain in the United States”); Copyright Act of 197, Tit. I, 01, 90 Stat. 2573 (declining to extend copyright protection to any work that is in the public domain prior to the Act taking effect); Copyright Act of 1909, (“[N]o copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States”); Act to Amend the Several Acts Respecting Copy Rights (the Act “shall not extend to any copyright heretofore secured, the term of which has already expired”); see also H. R. Rep. No. 1742, 87th Cong., 2d Sess., 3 (192) (expressing concern that because “it is not possible to revive expired terms of copyright, it seems to the committee to be desira­ ble to suspend further expiration of copyright for a period long enough to enable the working of remaining obsta­ cles to the overall revision of the copyright law”). 2 The majority makes several other arguments. First, it argues that the Clause does not require the “creation of at least one new work,” ante, at 20, but may instead “promote the Progress of Science” in other ways. And it specifically mentions the “dissemination of existing and future works” as determinative here. Ante, at 20–23, and n. 25. The industry experts to whom the majority refers argue that 20 GOLAN v. HOLDER BREYER, J., dissenting copyright protection of already existing works can help, say, music publishers or film distributers raise prices, produce extra profits and consequently lead them to pub­ lish or distribute works they might otherwise have ig­ nored. But ordinarily a copyright—since it is a monopoly on copying—restricts dissemination of a work once pro­ duced compared to a competitive market. And simply making the industry richer does not mean that the indus­ try, when it makes an ordinary forward-looking economic calculus, will distribute works not previously distributed. The industry experts might mean that temporary extra profits will lead them to invest in the development of a market, say, by advertising. But this kind of argument, which can be made by distributers of all sorts of goods, ranging from kiwi fruit to Swedish furniture, has little if anything to do with the nonrepeatable costs of initial creation, which is the special concern of copyright protec­ tion. See at 2–3. Moreover, the argument proves too much. It is the kind of argument that the Stationers’ Company might well have made and which the British Parliament rejected. Cf. Patterson 154–155 (describing failed booksellers’ bill seeking protection from foreign competition through an extension of the copyright term). It is the kind of argu­ ment that could justify a legislature’s withdrawing from the public domain the works, say, of Hawthorne or of Swift or for that matter the King James Bible in order to en­ courage further publication of those works; and, it could even more easily justify similar action in the case of lesser known early works, perhaps those of the Venerable Bede. The Court has not, to my knowledge, previously accepted such a rationale—a rationale well removed from the spe­ cial economic circumstances that surround the nonrepeat­ able costs of the initial creation of a “Writing.” at 2. And I fear that doing so would read the Copyright Clause as if it were a blank check made in favor of Cite as: 55 U. S. (2012) 21 BREYER, J., dissenting those who are not themselves creators. It is not surprising that the copyright holders’ repre­ sentatives who appeared before Congress did not empha­ size this argument. (With one minor exception only those representatives appeared, see generally Joint Hearing; the Copyright Office did not testify,) Rather, they focused on the Berne Convention itself. By that time, Congress had already protected all new works of Berne members. But it had not provided additional protection to preexisting foreign works that were then in the American public domain. Industry witnesses testified that with­ drawing such works from the American public domain would permit foreign copyright owners to charge American consumers more for their products; and that, as a result, the United States would be able to persuade foreign coun­ tries to allow American holders of preexisting copyrights to charge foreign customers more money for their prod­ ucts. See (statement of Eric Smith, Executive Director and General Counsel, International Intellectual Property Alliance) (“[F]ailure to [comply with Article 18] will undermine the ability of the United States to press other countries to implement the same sort of protection in their implementing legislation currently pending in many legislatures around the globe”); (statement of Matt Gerson, Vice President for Congressional Affairs, Motion Picture Assn. of America) (similar). See also at 85 (statement of Xavier Becerra, House Judiciary Commit­ tee member) (“[R]etroactivity is probably the best way to ensure that some of our older American works, any­ thing from Motown, to ‘Star Trek,’ to ‘The Hardy Boys’ get the protection in some of these emerging foreign markets. It is important to ensure that countries no longer use our U. S. law as an excuse for not extending retroactive copy­ right protections to some of our own works”). But see at 272–279 (statement of Larry Urbanski, Chairman of the Fairness in Copyright Coalition and President of 22 GOLAN v. HOLDER BREYER, J., dissenting Moviecraft Inc.) (testifying against restoration on grounds similar to those set at 10–13). This argument, whatever its intrinsic merits, is an ar­ gument that directly concerns a private benefit: how to obtain more money from the sales of existing products. It is not an argument ab a public benefit, such as how to promote or to protect the creative process. Third, the majority points that the statute “gives [authors] nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.” Ante, at 30. But insofar as it suggests that copyright should in general help authors obtain greater monetary rewards than needed to elicit new works, it rests upon primarily European, but not American, copyright concepts. See at 5–. Fourth, the majority argues that this statutory provi­ sion is necessary to fulfill our Berne Convention obliga­ tions. Ante, at 4–8. The Treaty, in Article 18, says that the “Convention shall apply to all works which, at the moment of its coming into force [i.e., 1989 in the case of the United States] have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.” Berne Convention for the Protection of Literary and Artistic Works, Art. 18(1), Sept. 9, 188, as revised at Stockholm on July 14, 197, 828 U. N. T. S. 221, 251. The majority and Government say that this means we must protect the foreign works at issue here. And since the Berne Convention, taken as a whole, provides incentives for the creation of new works, I am willing to speculate, for argument’s sake, that the statute might indirectly encourage production of new works by making the United States’ place in the international copyright regime more secure. Still, I cannot find this argument sufficient to save the statute. For one thing, this is a dilemma of the Govern­ ment’s own making. The United States obtained the Cite as: 55 U. S. (2012) 23 BREYER, J., dissenting benefits of Berne for many years despite its failure to enact a statute implementing Article 18. But in 1994, the United States and other nations signed the Agreement on Trade-Related Aspects of Intellectual Property Rights, which enabled signatories to use World Trade Organiza­ tion dispute resolution mechanisms to complain ab other members’ Berne Convention violations. But at that time the Government, although it successfully secured reservations protecting other special features of American copyright law, made no effort to secure a reservation permitting the United States to keep some or all restored works in the American public domain. And it made no effort to do so despite the fact that Article 18 explicitly authorizes countries to negotiate exceptions to the Arti­ cle’s retroactivity principle. See Art. 18(3), (“The application of [the retroactivity] principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union” ); Gervais, Golan v. Holder: A Look at the Constraints Imposed by the Berne Conven­ tion, 4 Vand. L. Rev. En Banc 147, 151–152 (2011); Gard, 4 Vand. L. Rev. En Banc, at 20. For another thing, the Convention does not require Congress to enact a statute that causes so much damage to public domain material. Article 18(3) also states that “the respective countries shall determine, each in so far as it is concerned, the conditions of application of this princi- ple.” 18 U. N. T. S., at 251 Congress could have alleviated many of the costs that the statute imposes by, for example, creating forms of compulsory licensing, requiring “restored copyright” holders to provide necessary administrative information as a condition of protection, or insisting upon “reasonable royalties.” Cf. S. 2913, 110th Cong., 2d Sess. (2008) (legislation that would have limited judicial remedies against users of orphan works); H. R. 5889, 110th Cong., 2d Sess. (2008) 24 GOLAN v. HOLDER BREYER, J., dissenting (House version of same); American Society of Compos- ers, Authors and Publishers, http://www.ascap.com/ licensing/termsdefined.aspx (society of music copyright owners offering blanket licenses that give users the unlim­ ited right to perform any of its members’ songs for a fixed fee, thus reducing negotiation and enforcement costs). To say this is not to criticize the Convention or our joining it. Rather, it is to argue that the other branches of Government should have tried to follow the Convention and in particular its provisions offering compliance flexi­ bility. The fact that the statute has significant First Amendment costs is relevant in this respect, for that Amendment ordinarily requires courts to evaluate less restrictive, alternative possibilities. Doing so here, reveals that neither Congress nor the Executive took advantage of less-restrictive methods of compliance that the Convention itself provides. And that fact means that the Convention cannot provide the statute with a constitutionally suffi­ cient justification that is otherwise lacking. III The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute. I respectfully dissent from the Court’s contrary conclusion

Justice Kennedy

majority

Bailey v. United States

2013-02-19

https://www.courtlistener.com/opinion/820749/bailey-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/820749/

2012-013

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. A search may be of a person, a thing, or a place. So too a seizure may be of a person, a thing, or even a place. A search or a seizure may occur singly or in combination, and in differing se- quence. In some cases the validity of one determines the validity of the other. The instant case involves the search of a place (an apartment dwelling) and the seizure of a person. But here, though it is acknowledged that the search was lawful, it does not follow that the seizure was lawful as well. The seizure of the person is quite in ques- tion. The issue to be resolved is whether the seizure of the person was reasonable when he was stopped and detained at some distance away from the premises to be searched when the only justification for the detention was to ensure the safety and efficacy of the search. I A At 8:45 p.m. on July 28, 2005, local police obtained a warrant to search a residence for a .380-caliber handgun. 2 BAILEY v. UNITED STATES Opinion of the Court The residence was a basement apartment at 103 Lake Drive, in Wyandanch, New York. A confidential informant had told police he observed the gun when he was at the apartment to purchase drugs from “a heavy set black male with short hair” known as “Polo.” App. 16–26. As the search unit began preparations for executing the warrant, two officers, Detectives Richard Sneider and Richard Gorbecki, were conducting surveillance in an unmarked car outside the residence. About 9:56 p.m., Sneider and Gorbecki observed two men—later identified as petitioner Chunon Bailey and Bryant Middleton—leave the gated area above the basement apartment and enter a car parked in the driveway. Both matched the general physi- cal description of “Polo” provided by the informant. There was no indication that the men were aware of the officers’ presence or had any knowledge of the impending search. The detectives watched the car leave the driveway. They waited for it to go a few hundred yards down the street and followed. The detectives informed the search team of their intent to follow and detain the departing occupants. The search team then executed the search warrant at the apartment. Detectives Sneider and Gorbecki tailed Bailey’s car for about a mile—and for about five minutes—before pulling the vehicle over in a parking lot by a fire station. They ordered Bailey and Middleton out of the car and did a patdown search of both men. The officers found no weap- ons but discovered a ring of keys in Bailey’s pocket. Bailey identified himself and said he was coming from his home at 103 Lake Drive. His driver’s license, however, showed his address as Bayshore, New York, the town where the confidential informant told the police the suspect, “Polo,” used to live. Id., at 89. Bailey’s passenger, Middleton, said Bailey was giving him a ride home and confirmed they were coming from Bailey’s residence at 103 Lake Drive. The officers put both men in handcuffs. When Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court Bailey asked why, Gorbecki stated that they were being detained incident to the execution of a search warrant at 103 Lake Drive. Bailey responded: “I don’t live there. Anything you find there ain’t mine, and I’m not cooperat- ing with your investigation.” Id., at 57, 77. The detectives called for a patrol car to take Bailey and Middleton back to the Lake Drive apartment. Detective Sneider drove the unmarked car back, while Detective Gorbecki used Bailey’s set of keys to drive Bailey’s car back to the search scene. By the time the group returned to 103 Lake Drive, the search team had discovered a gun and drugs in plain view inside the apartment. Bailey and Middleton were placed under arrest, and Bailey’s keys were seized incident to the arrest. Officers later discov- ered that one of Bailey’s keys opened the door of the basement apartment. B Bailey was charged with three federal offenses: posses- sion of cocaine with intent to distribute, in violation of 21 U.S. C. §§841(a)(1) and (b)(1)(B)(iii); possession of a fire- arm by a felon, in violation of 18 U.S. C. §922(g)(1); and possession of a firearm in furtherance of a drug-trafficking offense, in violation of §924(c)(1)(A)(i). At trial Bailey moved to suppress the apartment key and the statements he made when stopped by Detectives Sneider and Gor- becki. That evidence, Bailey argued, derived from an unreasonable seizure. After an evidentiary hearing the United States District Court for the Eastern District of New York denied the motion to suppress. The District Court held that Bailey’s detention was permissible under Michigan v. Summers, 452 U.S. 692 (1981), as a detention incident to the execution of a search warrant. In the alternative, it held that Bailey’s detention was lawful as an investigatory detention supported by reasonable suspi- cion under Terry v. Ohio, 392 U.S. 1 (1968). After a trial 4 BAILEY v. UNITED STATES Opinion of the Court the jury found Bailey guilty on all three counts. The Court of Appeals for the Second Circuit ruled that Bailey’s detention was proper and affirmed denial of the suppression motion. It interpreted this Court’s decision in Summers to “authoriz[e] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.” 652 F.3d 197, 208 (2011). Having found Bailey’s deten- tion justified under Summers, the Court of Appeals did not address the District Court’s alternative holding that the stop was permitted under Terry. The Federal Courts of Appeals have reached differing conclusions as to whether Michigan v. Summers justifies the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant. This Court granted certiorari to address the question. 566 U. S. ___ (2012). II The Fourth Amendment, applicable through the Four- teenth Amendment to the States, provides: “The right of the people to be secure in their persons . . . against unrea- sonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . particularly describing the place to be searched, and the persons or things to be seized.” This Court has stated “the general rule that Fourth Amendment seizures are ‘rea- sonable’ only if based on probable cause” to believe that the individual has committed a crime. Dunaway v. New York, 442 U.S. 200, 213 (1979). The standard of probable cause, with “roots that are deep in our history,” Henry v. United States, 361 U.S. 98, 100 (1959), “represent[s] the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest ‘reasonable’ under the Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court Fourth Amendment.” Dunaway, supra, at 208. Within the framework of these fundamental rules there is some latitude for police to detain where “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 of- ficer’s safety’ could support the seizure as reasonable.” Summers, supra, at 697–698 (quoting Dunaway, supra, at 209); see also Terry, supra, at 27 (holding that a police officer who has reasonable suspicion of criminal activity may conduct a brief investigative stop). In Summers, the Court defined an important category of cases in which detention is allowed without probable cause to arrest for a crime. It permitted officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.” 452 U.S., at 705. The rule in Summers extends farther than some earlier exceptions because it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers. Muehler v. Mena, 544 U.S. 93 (2005). In Muehler, apply- ing the rule in Summers, the Court stated: “An officer’s authority to detain incident to a search is categorical; it does not depend on the ‘quantum of proof justifying deten- tion or the extent of the intrusion to be imposed by the seizure.’ ” 544 U.S., at 98 (quoting Summers, supra, at 705, n. 19). The rule announced in Summers allows deten- tion incident to the execution of a search warrant “because the character of the additional intrusion caused by deten- tion is slight and because the justifications for detention are substantial.” Muehler, supra, at 98. In Summers and later cases the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search war- rant. In Summers, the defendant was detained on a walk leading down from the front steps of the house. See Tr. of 6 BAILEY v. UNITED STATES Opinion of the Court Oral Arg. in O. T. 1980, No. 79–1794, pp. 41–42; see also Muehler, supra, at 96 (detention of occupant in adjoining garage); Los Angeles County v. Rettele, 550 U.S. 609, 611 (2007) (per curiam) (detention of occupants in bedroom). Here, however, petitioner left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. The issue is whether the reasoning in Summers can justify detentions beyond the immediate vicinity of the premises being searched. An exception to the Fourth Amendment rule prohibiting detention absent probable cause must not diverge from its purpose and rationale. See Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) (“The scope of the de- tention must be carefully tailored to its underlying justifi- cation”). It is necessary, then, to discuss the reasons for the rule explained in Summers to determine if its ra- tionale extends to a detention like the one here. A In Summers, the Court recognized three important law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant: officer safety, facilitat- ing the completion of the search, and preventing flight. 452 U.S., at 702–703. 1 The first interest identified in Summers was “the inter- est in minimizing the risk of harm to the officers.” Id., at 702. There the Court held that “the execution of a war- rant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to con- ceal or destroy evidence,” and “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situa- tion.” Id., at 702–703. Cite as: 568 U. S. ____ (2013) 7 Opinion of the Court When law enforcement officers execute a search war- rant, safety considerations require that they secure the premises, which may include detaining current occupants. By taking “unquestioned command of the situation,” id., at 703, the officers can search without fear that occupants, who are on the premises and able to observe the course of the search, will become disruptive, dangerous, or other- wise frustrate the search. After Summers, this Court decided Muehler v. Mena. The reasoning and conclusions in Muehler in applying the Summers rule go quite far in allowing seizure and deten- tion of persons to accommodate the necessities of a search. There, the person detained and held in handcuffs was not suspected of the criminal activity being investigated; but, the Court held, she could be detained nonetheless, to secure the premises while the search was underway. The “safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, [and] the need to detain multiple occupants made the use of handcuffs all the more reasonable.” 544 U.S., at 100. While the Court in Muehler did remand for consideration of whether the detention there—alleged to have been two or three hours—was necessary in light of all the circum- stances, the fact that so prolonged a detention indeed might have been permitted illustrates the far-reaching authority the police have when the detention is made at the scene of the search. This in turn counsels caution before extending the power to detain persons stopped or apprehended away from the premises where the search is being conducted. It is likely, indeed almost inevitable in the case of a resident, that an occupant will return to the premises at some point; and this might occur when the officers are still conducting the search. Officers can and do mitigate that risk, however, by taking routine precautions, for instance by erecting barricades or posting someone on the perime- 8 BAILEY v. UNITED STATES Opinion of the Court ter or at the door. In the instant case Bailey had left the premises, apparently without knowledge of the search. He posed little risk to the officers at the scene. If Bailey had rushed back to his apartment, the police could have ap- prehended and detained him under Summers. There is no established principle, however, that allows the arrest of anyone away from the premises who is likely to return. The risk, furthermore, that someone could return home during the execution of a search warrant is not limited to occupants who depart shortly before the start of a search. The risk that a resident might return home, either for reasons unrelated to the search or after being alerted by someone at the scene, exists whether he left five minutes or five hours earlier. Unexpected arrivals by occupants or other persons accustomed to visiting the premises might occur in many instances. Were police to have the authority to detain those persons away from the premises, the authority to detain incident to the execution of a search warrant would reach beyond the rationale of ensuring the integrity of the search by detaining those who are in fact on the scene. The Court of Appeals relied on an additional safety consideration. It concluded that limiting the application of the authority to detain to the immediate vicinity would put law enforcement officers in a dilemma. They would have to choose between detaining an individual immedi- ately (and risk alerting occupants still inside) or allowing the individual to leave (and risk not being able to arrest him later if incriminating evidence were discovered). 652 F.3d, at 205–206. Although the danger of alerting occu- pants who remain inside may be of real concern in some instances, as in the case when a no-knock warrant has been issued, this safety rationale rests on the false prem- ise that a detention must take place. If the officers find that it would be dangerous to detain a departing individ- ual in front of a residence, they are not required to stop Cite as: 568 U. S. ____ (2013) 9 Opinion of the Court him. And, where there are grounds to believe the depart- ing occupant is dangerous, or involved in criminal activity, police will generally not need Summers to detain him at least for brief questioning, as they can rely instead on Terry. The risk that a departing occupant might notice the police surveillance and alert others still inside the resi- dence is also an insufficient safety rationale to justify ex- panding the existing categorical authority to detain so that it extends beyond the immediate vicinity of the prem- ises to be searched. If extended in this way the rationale would justify detaining anyone in the neighborhood who could alert occupants that the police are outside, all with- out individualized suspicion of criminal activity or connec- tion to the residence to be searched. This possibility demonstrates why it is necessary to confine the Summers rule to those who are present when and where the search is being conducted. 2 The second law enforcement interest relied on in Sum- mers was that “the orderly completion of the search may be facilitated if the occupants of the premises are present.” 452 U.S., at 703. This interest in efficiency derives from distinct, but related, concerns. If occupants are permitted to wander around the prem- ises, there is the potential for interference with the execu- tion of the search warrant. They can hide or destroy evidence, seek to distract the officers, or simply get in the way. Those risks are not presented by an occupant who departs beforehand. So, in this case, after Bailey drove away from the Lake Drive apartment, he was not a threat to the proper execution of the search. Had he returned, officers would have been free to detain him at that point. A general interest in avoiding obstruction of a search, however, cannot justify detention beyond the vicinity of 10 BAILEY v. UNITED STATES Opinion of the Court the premises to be searched. Summers also noted that occupants can assist the offi- cers. Under the reasoning in Summers, the occupants’ “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.” Ibid. This justification must be con- fined to those persons who are on site and so in a position, when detained, to at once observe the progression of the search; and it would have no limiting principle were it to be applied to persons beyond the premises of the search. Here, it appears the police officers decided to wait until Bailey had left the vicinity of the search before detaining him. In any event it later became clear to the officers that Bailey did not wish to cooperate. See App. 57, 77 (“I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation”). And, by the time the officers brought Bailey back to the apartment, the search team had discovered contraband. Bailey’s deten- tion thus served no purpose in ensuring the efficient com- pletion of the search. 3 The third law enforcement interest addressed in Sum- mers was the “the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” 452 U.S., at 702. The proper interpretation of this language, in the context of Summers and in the broader context of the reasonableness standard that must govern and inform the detention incident to a search, is that the police can prohibit an occupant from leaving the scene of the search. As with the other interests identified in Summers, this justification serves to preserve the integ- rity of the search by controlling those persons who are on the scene. If police officers are concerned about flight, and have to keep close supervision of occupants who are not Cite as: 568 U. S. ____ (2013) 11 Opinion of the Court restrained, they might rush the search, causing unneces- sary damage to property or compromising its careful exe- cution. Allowing officers to secure the scene by detaining those present also prevents the search from being impeded by occupants leaving with the evidence being sought or the means to find it. The concern over flight is not because of the danger of flight itself but because of the damage that potential flight can cause to the integrity of the search. This interest does not independently justify detention of an occupant be- yond the immediate vicinity of the premises to be searched. The need to prevent flight, if unbounded, might be used to argue for detention, while a search is underway, of any regular occupant regardless of his or her location at the time of the search. If not circumscribed, the rationale of preventing flight would justify, for instance, detaining a suspect who is 10 miles away, ready to board a plane. The interest in preventing escape from police cannot extend this far without undermining the usual rules for arrest based on probable cause or a brief stop for questioning under standards derived from Terry. Even if the detention of a former occupant away from the premises could facili- tate a later arrest should incriminating evidence be dis- covered, “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393 (1978). In sum, of the three law enforcement interests identified to justify the detention in Summers, none applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. Any of the individual interests is also insuffi- cient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search. This would give officers too much discretion. The 12 BAILEY v. UNITED STATES Opinion of the Court categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicini- ty of the premises to be searched. B In Summers, the Court recognized the authority to detain occupants incident to the execution of a search warrant not only in light of the law enforcement interests at stake but also because the intrusion on personal liberty was limited. The Court held detention of a current occu- pant “represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” 452 U.S., at 703. Because the deten- tion occurs in the individual’s own home, “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.” Id., at 702. Where officers arrest an individual away from his home, however, there is an additional level of intrusiveness. A public detention, even if merely incident to a search, will resemble a full-fledged arrest. As demonstrated here, detention beyond the immediate vicinity can involve an initial detention away from the scene and a second deten- tion at the residence. In between, the individual will suffer the additional indignity of a compelled transfer back to the premises, giving all the appearances of an arrest. The detention here was more intrusive than a usual de- tention at the search scene. Bailey’s car was stopped; he was ordered to step out and was detained in full public view; he was handcuffed, transported in a marked patrol car, and detained further outside the apartment. These facts illustrate that detention away from a premises where police are already present often will be more intrusive than detentions at the scene. Cite as: 568 U. S. ____ (2013) 13 Opinion of the Court C Summers recognized that a rule permitting the deten- tion of occupants on the premises during the execution of a search warrant, even absent individualized suspicion, was reasonable and necessary in light of the law enforcement interests in conducting a safe and efficient search. Be- cause this exception grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed. A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for de- tentions incident to the execution of a search warrant. The police action permitted here—the search of a resi- dence—has a spatial dimension, and so a spatial or geo- graphical boundary can be used to determine the area within which both the search and detention incident to that search may occur. Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe. Here, petitioner was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question; and so this case presents neither the necessity nor the occasion to further define the meaning of immediate vicinity. In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors. 14 BAILEY v. UNITED STATES Opinion of the Court Confining an officer’s authority to detain under Sum- mers to the immediate vicinity of a premises to be searched is a proper limit because it accords with the rationale of the rule. The rule adopted by the Court of Appeals here, allowing detentions of a departed occupant “as soon as reasonably practicable,” departs from the spatial limit that is necessary to confine the rule in light of the substantial intrusions on the liberty of those detained. Because detention is justified by the interests in execut- ing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place. If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspect’s particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including infor- mation that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention. For example, had the search team radioed Detectives Sneider and Gorbecki about the gun and drugs discovered in the Lake Drive apartment as the officers stopped Bailey and Middleton, this may have provided them with probable cause for an arrest. III Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an indi- vidual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some Cite as: 568 U. S. ____ (2013) 15 Opinion of the Court other rationale. In this respect it must be noted that the District Court, as an alternative ruling, held that stopping petitioner was lawful under Terry. This opinion expresses no view on that issue. It will be open, on remand, for the Court of Appeals to address the matter and to determine whether, assuming the Terry stop was valid, it yielded information that justified the detention the officers then imposed. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 568 U. S. ____ (2013) 1 SCALIA, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 11–770 _________________ CHUNON L. BAILEY, AKA POLO, PETITIONER v.

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. A search may be of a person, a thing, or a place. So too a seizure may be of a person, a thing, or even a place. A search or a seizure may occur singly or in combination, and in differing se- quence. In some cases the validity of one determines the validity of the other. The instant case involves the search of a place (an apartment dwelling) and the seizure of a person. But here, though it is acknowledged that the search was lawful, it does not follow that the seizure was lawful as well. The seizure of the person is quite in ques- tion. The issue to be resolved is whether the seizure of the person was reasonable when he was stopped and detained at some distance away from the premises to be searched when the only justification for the detention was to ensure the safety and efficacy of the search. I A At 8:45 p.m. on July 28, 2005, local police obtained a warrant to search a residence for a380-caliber handgun. 2 BAILEY v. UNITED STATES Opinion of the Court The residence was a basement apartment at 103 Lake Drive, in Wyandanch, New York. A confidential informant had told police he observed the gun when he was at the apartment to purchase drugs from “a heavy set black male with short hair” known as “Polo.” App. 16–26. As the search unit began preparations for executing the warrant, two officers, Detectives Richard Sneider and Richard Gorbecki, were conducting surveillance in an unmarked car outside the residence. About 9:56 p.m., Sneider and Gorbecki observed two men—later identified as petitioner Chunon Bailey and Bryant Middleton—leave the gated area above the basement apartment and enter a car parked in the driveway. Both matched the general physi- cal description of “Polo” provided by the informant. There was no indication that the men were aware of the officers’ presence or had any knowledge of the impending search. The detectives watched the car leave the driveway. They waited for it to go a few hundred yards down the street and followed. The detectives informed the search team of their intent to follow and detain the departing occupants. The search team then executed the search warrant at the apartment. Detectives Sneider and Gorbecki tailed Bailey’s car for about a mile—and for about five minutes—before pulling the vehicle over in a parking lot by a fire station. They ordered Bailey and Middleton out of the car and did a patdown search of both men. The officers found no weap- ons but discovered a ring of keys in Bailey’s pocket. Bailey identified himself and said he was coming from his home at 103 Lake Drive. His driver’s license, however, showed his address as Bayshore, New York, the town where the confidential informant told the police the suspect, “Polo,” used to live. Bailey’s passenger, Middleton, said Bailey was giving him a ride home and confirmed they were coming from Bailey’s residence at 103 Lake Drive. The officers put both men in handcuffs. When Cite as: 568 U. S. (2013) 3 Opinion of the Court Bailey asked why, Gorbecki stated that they were being detained incident to the execution of a search warrant at 103 Lake Drive. Bailey responded: “I don’t live there. Anything you find there ain’t mine, and I’m not cooperat- ing with your investigation.” The detectives called for a patrol car to take Bailey and Middleton back to the Lake Drive apartment. Detective Sneider drove the unmarked car back, while Detective Gorbecki used Bailey’s set of keys to drive Bailey’s car back to the search scene. By the time the group returned to 103 Lake Drive, the search team had discovered a gun and drugs in plain view inside the apartment. Bailey and Middleton were placed under arrest, and Bailey’s keys were seized incident to the arrest. Officers later discov- ered that one of Bailey’s keys opened the door of the basement apartment. B Bailey was charged with three federal offenses: posses- sion of cocaine with intent to distribute, in violation of 21 U.S. C. and (b)(1)(B)(iii); possession of a fire- arm by a felon, in violation of 18 U.S. C. and possession of a firearm in furtherance of a drug-trafficking offense, in violation of At trial Bailey moved to suppress the apartment key and the statements he made when stopped by Detectives Sneider and Gor- becki. That evidence, Bailey argued, derived from an unreasonable seizure. After an evidentiary hearing the United States District Court for the Eastern District of New York denied the motion to suppress. The District Court held that Bailey’s detention was permissible under as a detention incident to the execution of a search warrant. In the alternative, it held that Bailey’s detention was lawful as an investigatory detention supported by reasonable suspi- cion under After a trial 4 BAILEY v. UNITED STATES Opinion of the Court the jury found Bailey guilty on all three counts. The Court of Appeals for the Second Circuit ruled that Bailey’s detention was proper and affirmed denial of the suppression motion. It interpreted this Court’s decision in to “authoriz[e] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.” Having found Bailey’s deten- tion justified under the Court of Appeals did not address the District Court’s alternative holding that the stop was permitted under The Federal Courts of Appeals have reached differing conclusions as to whether justifies the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant. This Court granted certiorari to address the question. 566 U. S. (2012). II The Fourth Amendment, applicable through the Four- teenth Amendment to the States, provides: “The right of the people to be secure in their persons against unrea- sonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause particularly describing the place to be searched, and the persons or things to be seized.” This Court has stated “the general rule that Fourth Amendment seizures are ‘rea- sonable’ only if based on probable cause” to believe that the individual has committed a crime. The standard of probable cause, with “roots that are deep in our history,” Henry v. United States, “represent[s] the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest ‘reasonable’ under the Cite as: 568 U. S. (2013) 5 Opinion of the Court Fourth Amendment.” at Within the framework of these fundamental rules there is some latitude for police to detain where “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 of- ficer’s safety’ could support the seizure as reasonable.” at 697–698 (quoting at 209); see also (holding that a police officer who has reasonable suspicion of criminal activity may conduct a brief investigative stop). In the Court defined an important category of cases in which detention is allowed without probable cause to arrest for a crime. It permitted officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.” The rule in extends farther than some earlier exceptions because it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers. In apply- ing the rule in the Court stated: “An officer’s authority to detain incident to a search is categorical; it does not depend on the ‘quantum of proof justifying deten- tion or the extent of the intrusion to be imposed by the seizure.’ ” (quoting at 705, n. 19). The rule announced in allows deten- tion incident to the execution of a search warrant “because the character of the additional intrusion caused by deten- tion is slight and because the justifications for detention are substantial.” In and later cases the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search war- rant. In the defendant was detained on a walk leading down from the front steps of the house. See Tr. of 6 BAILEY v. UNITED STATES Opinion of the Court Oral Arg. in O. T. 1980, No. 79–1794, pp. 41–42; see also (detention of occupant in adjoining garage); Los Angeles (2007) (per curiam) (detention of occupants in bedroom). Here, however, petitioner left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. The issue is whether the reasoning in can justify detentions beyond the immediate vicinity of the premises being searched. An exception to the Fourth Amendment rule prohibiting detention absent probable cause must not diverge from its purpose and rationale. See Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) (“The scope of the de- tention must be carefully tailored to its underlying justifi- cation”). It is necessary, then, to discuss the reasons for the rule explained in to determine if its ra- tionale extends to a detention like the one here. A In the Court recognized three important law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant: officer safety, facilitat- ing the completion of the search, and preventing flight. –703. 1 The first interest identified in was “the inter- est in minimizing the risk of harm to the officers.” at 702. There the Court held that “the execution of a war- rant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to con- ceal or destroy evidence,” and “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situa- tion.” –703. Cite as: 568 U. S. (2013) 7 Opinion of the Court When law enforcement officers execute a search war- rant, safety considerations require that they secure the premises, which may include detaining current occupants. By taking “unquestioned command of the situation,” at 703, the officers can search without fear that occupants, who are on the premises and able to observe the course of the search, will become disruptive, dangerous, or other- wise frustrate the search. After this Court decided The reasoning and conclusions in in applying the rule go quite far in allowing seizure and deten- tion of persons to accommodate the necessities of a search. There, the person detained and held in handcuffs was not suspected of the criminal activity being investigated; but, the Court held, she could be detained nonetheless, to secure the premises while the search was underway. The “safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, [and] the need to detain multiple occupants made the use of handcuffs all the more reasonable.” 544 U.S., at While the Court in did remand for consideration of whether the detention there—alleged to have been two or three hours—was necessary in light of all the circum- stances, the fact that so prolonged a detention indeed might have been permitted illustrates the far-reaching authority the police have when the detention is made at the scene of the search. This in turn counsels caution before extending the power to detain persons stopped or apprehended away from the premises where the search is being conducted. It is likely, indeed almost inevitable in the case of a resident, that an occupant will return to the premises at some point; and this might occur when the officers are still conducting the search. Officers can and do mitigate that risk, however, by taking routine precautions, for instance by erecting barricades or posting someone on the perime- 8 BAILEY v. UNITED STATES Opinion of the Court ter or at the door. In the instant case Bailey had left the premises, apparently without knowledge of the search. He posed little risk to the officers at the scene. If Bailey had rushed back to his apartment, the police could have ap- prehended and detained him under There is no established principle, however, that allows the arrest of anyone away from the premises who is likely to return. The risk, furthermore, that someone could return home during the execution of a search warrant is not limited to occupants who depart shortly before the start of a search. The risk that a resident might return home, either for reasons unrelated to the search or after being alerted by someone at the scene, exists whether he left five minutes or five hours earlier. Unexpected arrivals by occupants or other persons accustomed to visiting the premises might occur in many instances. Were police to have the authority to detain those persons away from the premises, the authority to detain incident to the execution of a search warrant would reach beyond the rationale of ensuring the integrity of the search by detaining those who are in fact on the scene. The Court of Appeals relied on an additional safety consideration. It concluded that limiting the application of the authority to detain to the immediate vicinity would put law enforcement officers in a dilemma. They would have to choose between detaining an individual immedi- ately (and risk alerting occupants still inside) or allowing the individual to leave (and risk not being able to arrest him later if incriminating evidence were discovered). 652 F.3d, at 205–206. Although the danger of alerting occu- pants who remain inside may be of real concern in some instances, as in the case when a no-knock warrant has been issued, this safety rationale rests on the false prem- ise that a detention must take place. If the officers find that it would be dangerous to detain a departing individ- ual in front of a residence, they are not required to stop Cite as: 568 U. S. (2013) 9 Opinion of the Court him. And, where there are grounds to believe the depart- ing occupant is dangerous, or involved in criminal activity, police will generally not need to detain him at least for brief questioning, as they can rely instead on The risk that a departing occupant might notice the police surveillance and alert others still inside the resi- dence is also an insufficient safety rationale to justify ex- panding the existing categorical authority to detain so that it extends beyond the immediate vicinity of the prem- ises to be searched. If extended in this way the rationale would justify detaining anyone in the neighborhood who could alert occupants that the police are outside, all with- out individualized suspicion of criminal activity or connec- tion to the residence to be searched. This possibility demonstrates why it is necessary to confine the rule to those who are present when and where the search is being conducted. 2 The second law enforcement interest relied on in Sum- mers was that “the orderly completion of the search may be facilitated if the occupants of the premises are present.” This interest in efficiency derives from distinct, but related, concerns. If occupants are permitted to wander around the prem- ises, there is the potential for interference with the execu- tion of the search warrant. They can hide or destroy evidence, seek to distract the officers, or simply get in the way. Those risks are not presented by an occupant who departs beforehand. So, in this case, after Bailey drove away from the Lake Drive apartment, he was not a threat to the proper execution of the search. Had he returned, officers would have been free to detain him at that point. A general interest in avoiding obstruction of a search, however, cannot justify detention beyond the vicinity of 10 BAILEY v. UNITED STATES Opinion of the Court the premises to be searched. also noted that occupants can assist the offi- cers. Under the reasoning in the occupants’ “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.” This justification must be con- fined to those persons who are on site and so in a position, when detained, to at once observe the progression of the search; and it would have no limiting principle were it to be applied to persons beyond the premises of the search. Here, it appears the police officers decided to wait until Bailey had left the vicinity of the search before detaining him. In any event it later became clear to the officers that Bailey did not wish to cooperate. See App. 57, 77 (“I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation”). And, by the time the officers brought Bailey back to the apartment, the search team had discovered contraband. Bailey’s deten- tion thus served no purpose in ensuring the efficient com- pletion of the search. 3 The third law enforcement interest addressed in Sum- mers was the “the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” The proper interpretation of this language, in the context of and in the broader context of the reasonableness standard that must govern and inform the detention incident to a search, is that the police can prohibit an occupant from leaving the scene of the search. As with the other interests identified in this justification serves to preserve the integ- rity of the search by controlling those persons who are on the scene. If police officers are concerned about flight, and have to keep close supervision of occupants who are not Cite as: 568 U. S. (2013) 11 Opinion of the Court restrained, they might rush the search, causing unneces- sary damage to property or compromising its careful exe- cution. Allowing officers to secure the scene by detaining those present also prevents the search from being impeded by occupants leaving with the evidence being sought or the means to find it. The concern over flight is not because of the danger of flight itself but because of the damage that potential flight can cause to the integrity of the search. This interest does not independently justify detention of an occupant be- yond the immediate vicinity of the premises to be searched. The need to prevent flight, if unbounded, might be used to argue for detention, while a search is underway, of any regular occupant regardless of his or her location at the time of the search. If not circumscribed, the rationale of preventing flight would justify, for instance, detaining a suspect who is 10 miles away, ready to board a plane. The interest in preventing escape from police cannot extend this far without undermining the usual rules for arrest based on probable cause or a brief stop for questioning under standards derived from Even if the detention of a former occupant away from the premises could facili- tate a later arrest should incriminating evidence be dis- covered, “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” 393 (1978). In sum, of the three law enforcement interests identified to justify the detention in none applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. Any of the individual interests is also insuffi- cient, on its own, to justify an expansion of the rule in to permit the detention of a former occupant, wherever he may be found away from the scene of the search. This would give officers too much discretion. The 12 BAILEY v. UNITED STATES Opinion of the Court categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicini- ty of the premises to be searched. B In the Court recognized the authority to detain occupants incident to the execution of a search warrant not only in light of the law enforcement interests at stake but also because the intrusion on personal liberty was limited. The Court held detention of a current occu- pant “represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Because the deten- tion occurs in the individual’s own home, “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.” Where officers arrest an individual away from his home, however, there is an additional level of intrusiveness. A public detention, even if merely incident to a search, will resemble a full-fledged arrest. As demonstrated here, detention beyond the immediate vicinity can involve an initial detention away from the scene and a second deten- tion at the residence. In between, the individual will suffer the additional indignity of a compelled transfer back to the premises, giving all the appearances of an arrest. The detention here was more intrusive than a usual de- tention at the search scene. Bailey’s car was stopped; he was ordered to step out and was detained in full public view; he was handcuffed, transported in a marked patrol car, and detained further outside the apartment. These facts illustrate that detention away from a premises where police are already present often will be more intrusive than detentions at the scene. Cite as: 568 U. S. (2013) 13 Opinion of the Court C recognized that a rule permitting the deten- tion of occupants on the premises during the execution of a search warrant, even absent individualized suspicion, was reasonable and necessary in light of the law enforcement interests in conducting a safe and efficient search. Be- cause this exception grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed. A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for de- tentions incident to the execution of a search warrant. The police action permitted here—the search of a resi- dence—has a spatial dimension, and so a spatial or geo- graphical boundary can be used to determine the area within which both the search and detention incident to that search may occur. Limiting the rule in to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe. Here, petitioner was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question; and so this case presents neither the necessity nor the occasion to further define the meaning of immediate vicinity. In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors. 14 BAILEY v. UNITED STATES Opinion of the Court Confining an officer’s authority to detain under Sum- mers to the immediate vicinity of a premises to be searched is a proper limit because it accords with the rationale of the rule. The rule adopted by the Court of Appeals here, allowing detentions of a departed occupant “as soon as reasonably practicable,” departs from the spatial limit that is necessary to confine the rule in light of the substantial intrusions on the liberty of those detained. Because detention is justified by the interests in execut- ing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place. If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under or an arrest based on probable cause. A suspect’s particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including infor- mation that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention. For example, had the search team radioed Detectives Sneider and Gorbecki about the gun and drugs discovered in the Lake Drive apartment as the officers stopped Bailey and Middleton, this may have provided them with probable cause for an arrest. III Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an indi- vidual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some Cite as: 568 U. S. (2013) 15 Opinion of the Court other rationale. In this respect it must be noted that the District Court, as an alternative ruling, held that stopping petitioner was lawful under This opinion expresses no view on that issue. It will be open, on remand, for the Court of Appeals to address the matter and to determine whether, assuming the stop was valid, it yielded information that justified the detention the officers then imposed. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 568 U. S. (2013) 1 SCALIA, J., concurring SUPREME COURT OF THE UNITED STATES No. 11–770 CHUNON L. BAILEY, AKA POLO, PETITIONER v.

Justice Scalia

concurring

Bailey v. United States

2013-02-19

https://www.courtlistener.com/opinion/820749/bailey-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/820749/

2012-013

I join the Court’s opinion. I write separately to em- phasize why the Court of Appeals’ interest-balancing approach to this case—endorsed by the dissent—is incom- patible with the categorical rule set forth in Michigan v. Summers, 452 U.S. 692 (1981). Summers identified several law-enforcement interests supporting the detention of occupants incident to the execution of a warrant to search for contraband, along with several reasons why such detentions are typically less intrusive than an arrest. See id., at 701–704. Weigh- ing those factors, the Court determined that “it is constitu- tionally reasonable to require [a] citizen to remain while officers of the law execute a valid warrant to search his home.” Id., at 705. The existence and scope of the Summers exception were predicated on that balancing of the interests and burdens. But—crucially—whether Summers authorizes a seizure in an individual case does not depend on any balancing, because the Summers exception, within its scope, is “cate- gorical.” Muehler v. Mena, 544 U.S. 93, 98 (2005). That Summers establishes a categorical, bright-line rule is simply not open to debate—Summers itself insisted on it: “The rule we adopt today does not depend upon such an 2 BAILEY v. UNITED STATES SCALIA, J., concurring 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 sei- zure.” 452 U.S., at 705, n. 19. Where Summers applies, a seizure is ipso facto “constitutionally reasonable.” Id., at 705. The question in this case is whether Summers applies at all. It applies only to seizures of “occupants”—that is, persons within “the immediate vicinity of the premises to be searched.” Ante, at 11. Bailey was seized a mile away. Ergo, Summers cannot sanction Bailey’s detention. It really is that simple. The Court of Appeals’ mistake, echoed by the dissent, was to replace that straightforward, binary inquiry with open-ended balancing. Weighing the equities—Bailey “posed a risk of harm to the officers,” his detention “was not unreasonably prolonged,” and so forth—the Court of Appeals proclaimed the officers’ conduct, “in the circum- stances presented, reasonable and prudent.” 652 F.3d 197, 206 (CA2 2011) (internal quotation marks and brack- ets omitted); see also post, at 3–4 (opinion of BREYER, J.). That may be so, but it is irrelevant to whether Summers authorized the officers to seize Bailey without probable cause. To resolve that issue, a court need ask only one question: Was the person seized within “the immediate vicinity of the premises to be searched”? Ante, at 11. The Court of Appeals read Summers’ spatial constraint somewhat more promiscuously: In its view, it sufficed that police observed Bailey “in the process of leaving the prem- ises” and detained him “as soon as practicable.” 652 F.3d, at 206 (emphasis deleted); see also post, at 6–7. That has pragmatic appeal; police, the argument runs, should not be precluded from seizing the departing occupant at a distance from the premises if that would be safer than stopping him on the front steps. But it rests on the fallacy that each search warrant entitles the Government to a Cite as: 568 U. S. ____ (2013) 3 SCALIA, J., concurring concomitant Summers detention. Conducting a Summers seizure incident to the execution of a warrant “is not the Government’s right; it is an exception—justified by neces- sity—to a rule that would otherwise render the [seizure] unlawful.” Thornton v. United States, 541 U.S. 615, 627 (2004) (SCALIA, J., concurring in judgment). It bears repeating that the “general rule” is “that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, 442 U.S. 200, 213 (1979). Summers embodies a categorical judgment that in one narrow circumstance—the presence of occu- pants during the execution of a search warrant—seizures are reasonable despite the absence of probable cause. Sum- mers itself foresaw that without clear limits its excep- tion could swallow the general rule: If a “multifactor balancing test of ‘reasonable police conduct under the cir- cumstances’” were extended “to cover all seizures that do not amount to technical arrests,” it recognized, the “ ‘protec- tions intended by the Framers could all too easily dis- appear in the consideration and balancing of the multi- farious circumstances presented by different cases.’ ” 452 U.S., at 705, n. 19 (quoting Dunaway, supra, at 213 (some internal quotation marks omitted)). The dissent would harvest from Summers what it likes (permission to seize without probable cause) and leave behind what it finds uncongenial (limitation of that permission to a narrow, categorical exception, not an open-ended “reasonableness” inquiry).* Summers anticipated that gambit and explicitly disavowed the dissent’s balancing test. See 452 U.S., at 705, n. 19 (“[T]he rule we adopt today does not depend —————— * The dissent purports to agree “that the question involves drawing a line of demarcation granting a categorical form of detention authority.” Post, at 3. What the dissent misses is that a “categorical” exception must be defined by categorical limits. Summers’ authorization to detain applies only to “occupants”—a bright-line limitation that the dissent’s “reasonably practicable” test discards altogether. 4 BAILEY v. UNITED STATES SCALIA, J., concurring upon such an ad hoc determination”). Regrettably, this Court’s opinion in Summers facilitated the Court of Appeals’ error here by setting forth a smor- gasbord of law-enforcement interests assertedly justifying its holding, including “preventing flight in the event that incriminating evidence is found” and obtaining residents’ assistance in “open[ing] locked doors or locked containers.” Id., at 701–703. We should not have been so expansive. The Summers exception is appropriately predicated only on law enforcement’s interest in carrying out the search unimpeded by violence or other disruptions. “The common denominator” of the few Fourth Amendment doctrines permitting seizures based on less than probable cause “is the presence of some governmental interest independent of the ordinary interest in investigating crime and appre- hending suspects.” Id., at 707 (Stewart, J., dissenting). Preventing flight is not a special governmental interest— it is indistinguishable from the ordinary interest in appre- hending suspects. Similarly, the interest in inducing residents to open locked doors or containers is nothing more than the ordinary interest in investigating crime. That Summers detentions aid police in uncovering evi- dence and nabbing criminals does not distinguish them from the mine run of seizures unsupported by probable cause, which the Fourth Amendment generally proscribes. * * * Summers’ clear rule simplifies the task of officers who encounter occupants during a search. “[I]f police are to have workable rules, the balancing of the competing in- terests . . . ‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.’ ” Id., at 705, n. 19 (quoting Dunaway, supra, at 219–220 (White, J., concurring)); see also Ari- zona v. Gant, 556 U.S. 332, 352–353 (2009) (SCALIA, J., concurring). But having received the advantage of Sum- Cite as: 568 U. S. ____ (2013) 5 SCALIA, J., concurring mers’ categorical authorization to detain occupants inci- dent to a search, the Government must take the bitter with the sweet: Beyond Summers’ spatial bounds, sei- zures must comport with ordinary Fourth Amendment principles. Cite as: 568 U. S. ____ (2013) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–770 _________________ CHUNON L. BAILEY, AKA POLO, PETITIONER v.

I join the Court’s opinion. I write separately to em- phasize why the Court of Appeals’ interest-balancing approach to this case—endorsed by the dissent—is incom- patible with the categorical rule set forth in Michigan v. Summers, Summers identified several law-enforcement interests supporting the detention of occupants incident to the execution of a warrant to search for contraband, along with several reasons why such detentions are typically less intrusive than an arrest. See at 701–704. Weigh- ing those factors, the Court determined that “it is constitu- tionally reasonable to require [a] citizen to remain while officers of the law execute a valid warrant to search his home.” The existence and scope of the Summers exception were predicated on that balancing of the interests and burdens. But—crucially—whether Summers authorizes a seizure in an individual case does not depend on any balancing, because the Summers exception, within its scope, is “cate- gorical.” That Summers establishes a categorical, bright-line rule is simply not open to debate—Summers itself insisted on it: “The rule we adopt today does not depend upon such an 2 BAILEY v. UNITED STATES SCALIA, J., concurring 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 sei- zure.” 452 U.S., n. 19. Where Summers applies, a seizure is ipso facto “constitutionally reasonable.” at 705. The question in this case is whether Summers applies at all. It applies only to seizures of “occupants”—that is, persons within “the immediate vicinity of the premises to be searched.” Ante, at 11. Bailey was seized a mile away. Ergo, Summers cannot sanction Bailey’s detention. It really is that simple. The Court of Appeals’ mistake, echoed by the dissent, was to replace that straightforward, binary inquiry with open-ended balancing. Weighing the equities—Bailey “posed a risk of harm to the officers,” his detention “was not unreasonably prolonged,” and so forth—the Court of Appeals proclaimed the officers’ conduct, “in the circum- stances presented, reasonable and prudent.” 652 F.3d 197, 206 (CA2 2011) (internal quotation marks and brack- ets omitted); see also post, at 3–4 (opinion of BREYER, J.). That may be so, but it is irrelevant to whether Summers authorized the officers to seize Bailey without probable cause. To resolve that issue, a court need ask only one question: Was the person seized within “the immediate vicinity of the premises to be searched”? Ante, at 11. The Court of Appeals read Summers’ spatial constraint somewhat more promiscuously: In its view, it sufficed that police observed Bailey “in the process of leaving the prem- ises” and detained him “as soon as practicable.” 652 F.3d, at 206 (emphasis deleted); see also post, at 6–7. That has pragmatic appeal; police, the argument runs, should not be precluded from seizing the departing occupant at a distance from the premises if that would be safer than stopping him on the front steps. But it rests on the fallacy that each search warrant entitles the Government to a Cite as: 568 U. S. (2013) 3 SCALIA, J., concurring concomitant Summers detention. Conducting a Summers seizure incident to the execution of a warrant “is not the Government’s right; it is an exception—justified by neces- sity—to a rule that would otherwise render the [seizure] unlawful.” (2004) (SCALIA, J., concurring in judgment). It bears repeating that the “general rule” is “that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” 213 (1979). Summers embodies a categorical judgment that in one narrow circumstance—the presence of occu- pants during the execution of a search warrant—seizures are reasonable despite the absence of probable cause. Sum- mers itself foresaw that without clear limits its excep- tion could swallow the general rule: If a “multifactor balancing test of ‘reasonable police conduct under the cir- cumstances’” were extended “to cover all seizures that do not amount to technical arrests,” it recognized, the “ ‘protec- tions intended by the Framers could all too easily dis- appear in the consideration and balancing of the multi- farious circumstances presented by different cases.’ ” 452 U.S., n. 19 (quoting (some internal quotation marks omitted)). The dissent would harvest from Summers what it likes (permission to seize without probable cause) and leave behind what it finds uncongenial (limitation of that permission to a narrow, categorical exception, not an open-ended “reasonableness” inquiry).* Summers anticipated that gambit and explicitly disavowed the dissent’s balancing test. See 452 U.S., at 705, n. 19 (“[T]he rule we adopt today does not depend —————— * The dissent purports to agree “that the question involves drawing a line of demarcation granting a categorical form of detention authority.” Post, at 3. What the dissent misses is that a “categorical” exception must be defined by categorical limits. Summers’ authorization to detain applies only to “occupants”—a bright-line limitation that the dissent’s “reasonably practicable” test discards altogether. 4 BAILEY v. UNITED STATES SCALIA, J., concurring upon such an ad hoc determination”). Regrettably, this Court’s opinion in Summers facilitated the Court of Appeals’ error here by setting forth a smor- gasbord of law-enforcement interests assertedly justifying its holding, including “preventing flight in the event that incriminating evidence is found” and obtaining residents’ assistance in “open[ing] locked doors or locked containers.” at 701–703. We should not have been so expansive. The Summers exception is appropriately predicated only on law enforcement’s interest in carrying out the search unimpeded by violence or other disruptions. “The common denominator” of the few Fourth Amendment doctrines permitting seizures based on less than probable cause “is the presence of some governmental interest independent of the ordinary interest in investigating crime and appre- hending suspects.” Preventing flight is not a special governmental interest— it is indistinguishable from the ordinary interest in appre- hending suspects. Similarly, the interest in inducing residents to open locked doors or containers is nothing more than the ordinary interest in investigating crime. That Summers detentions aid police in uncovering evi- dence and nabbing criminals does not distinguish them from the mine run of seizures unsupported by probable cause, which the Fourth Amendment generally proscribes. * * * Summers’ clear rule simplifies the task of officers who encounter occupants during a search. “[I]f police are to have workable rules, the balancing of the competing in- terests ‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.’ ” n. 19 (quoting at 219–220 (White, J., concurring)); see also Ari- (SCALIA, J., concurring). But having received the advantage of Sum- Cite as: 568 U. S. (2013) 5 SCALIA, J., concurring mers’ categorical authorization to detain occupants inci- dent to a search, the Government must take the bitter with the sweet: Beyond Summers’ spatial bounds, sei- zures must comport with ordinary Fourth Amendment principles. Cite as: 568 U. S. (2013) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–770 CHUNON L. BAILEY, AKA POLO, PETITIONER v.

Justice Breyer

dissenting

Bailey v. United States

2013-02-19

https://www.courtlistener.com/opinion/820749/bailey-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/820749/

2012-013

Did the police act reasonably when they followed (for 0.7 miles), and then detained, two men who left a basement apartment as the police were about to enter to execute a search warrant for a gun? The Court of Appeals for the Second Circuit found that the police action was reasonable because (1) the “premises [were] subject to a valid search warrant,” (2) the detained persons were “seen leaving those premises,” and (3) “the detention [was] effected as soon as reasonably practicable.” 652 F.3d 197, 208 (2011). In light of the risks of flight, of evidence destruction, and of human injury present in this and similar cases, I would follow the approach of the Court of Appeals and uphold its determination. I The Court of Appeals rested its holding upon well- supported District Court findings. The police stopped the men “at the earliest practicable location that was con- sistent with the safety and security of the officers and the public.” 468 F. Supp. 2d 373, 380 (EDNY 2006). “[D]etention in open view outside the residence” would have subjected the officers “to additional dangers during the execution of the search,” and it would have “poten- 2 BAILEY v. UNITED STATES BREYER, J., dissenting tially frustrat[ed] the whole purpose of the search due to destruction of evidence.” Id., at 379. It also could have “jeopardize[d] the search or endanger[ed] the lives of the officers . . . by allowing any other occupants inside the residence, who might see or hear the detention of the individual outside the residence as he was leaving, to have some time to (1) destroy or hide incriminating evidence just before the police are about to enter for the search; (2) flee through a back door or window; or (3) arm themselves in preparation for a violent confrontation with the police when they entered to conduct the search.” Id., at 380. Moreover, the police stopped the men’s car “at the first spot where they determined it was safe to conduct the stop,” namely after the car, which had traveled a few blocks along busier streets and intersections, turned off on a quieter side road. Id., at 379. II The holding by the Court of Appeals is strongly supported by Supreme Court precedent. In Michigan v. Summers, 452 U.S. 692 (1981), this Court held that “a warrant to search for contraband founded on probable cause implic- itly carries with it the limited authority to detain the occu- pants of the premises while a proper search is conducted.” Id., at 705 (footnote omitted). And the similarities be- tween Summers and this case are multiple. In Summers the police had a valid warrant based on probable cause to search a house for drugs. Id., at 693. Here the police had a valid warrant based on probable cause to search a house for a gun and ammunition, believed to be used in multiple drug deals. App. 16–18, 26. In Summers the police, be- ginning to execute that warrant, were outside the house. 452 U.S., at 693. Here the police, beginning to execute that warrant, were outside the house. 468 F. Supp. 2d, at Cite as: 568 U. S. ____ (2013) 3 BREYER, J., dissenting 376. In Summers the police then “encountered” an occu- pant of the house “descending the front steps.” 452 U.S., at 693. Here the police then encountered two occupants of the house ascending the back (basement) steps. 468 F. Supp. 2d, at 376; App. 43, 45. In Summers the police entered the house soon after encountering that occupant. 452 U.S., at 693. Here the police entered the house soon after encountering those occupants (while other officers pursued them). App. 49, 59–60. In Summers the police detained the occupant while they engaged in their search. 452 U.S., at 693. Here the police did the same. 468 F. Supp. 2d, at 377. Thus, given Summers, only one question is open. In Summers the police detained the occupant before he left “the sidewalk outside” of the house. 452 U.S., at 702, n. 16. Here the police, for good reason, permitted the occupants to leave the premises and stopped them a few blocks from the house. App. 48, 72, 86, 103. (See Appen- dix, infra.) The resulting question is whether this differ- ence makes a constitutional difference. In particular, which is the right constitutional line to demarcate where a Summers detention may be initiated? Is it the Court’s line, drawn at the “immediate vicinity” of the house? Ante, at 12. Or is it the Second Circuit’s line, drawn on the basis of what is “reasonably practicable”? 652 F.3d, at 207. I agree, of course, with the concurrence that the question involves drawing a line of demarcation granting a categorical form of detention authority. The question is simply where that line should be drawn. III The Court in Summers rested its conclusion upon four considerations, each of which strongly supports the rea- sonableness of Bailey’s detention, and each of which is as likely or more likely to support detention of an occupant of searchable premises detained “as soon as reasonably 4 BAILEY v. UNITED STATES BREYER, J., dissenting practicable,” 652 F.3d, at 208, as it is to support the de- tention of an occupant detained “within the immediate vicinity” of those premises, ante, at 13. First, the Court in Summers found “[o]f prime importance . . . the fact that the police had obtained a warrant to search [the occu- pant’s] house for contraband.” 452 U.S., at 701. That fact meant that the additional detention-related “invasion of the privacy of the persons who resided there” was “less intrusive” than in a typical detention. Ibid. The same is true here and always true in this class of cases. Second, the Court in Summers said that the detention was justified in part by “the legitimate law enforcement interest in preventing flight in the event that incriminat- ing evidence is found.” Id., at 702. This factor, which Summers identifies as the “[m]ost obvious” rationale supporting detention, ibid., will be present in all Summers detentions. Summers applies when police have a search warrant for contraband, id., at 701, 705, n. 20, and any occupant departing a residence containing contraband will have incentive to flee once he encounters police. Indeed, since here the warrant itself described the possessor of the unlawful gun in terms that applied to both of the detained occupants, App. 46, the strength of this interest is equal to or greater than its strength in Summers. Third, the Court in Summers said that the detention was justified in part by “the interest in minimizing the risk of harm to the officers.” 452 U.S., at 702. The strength of this interest is greater here than in Summers, for here there was good reason, backed by probable cause, to believe that “[a] chrome .380 handgun, ammunition, [and] magazine clips” were on the premises. App. 17. As I discuss below, the interest in minimizing harm to officers is compromised by encouraging them to initiate searches before they are prepared to do so safely. Fourth, the Court in Summers said that “the orderly completion of the search may be facilitated if the occu- Cite as: 568 U. S. ____ (2013) 5 BREYER, J., dissenting pants of the premises are present.” 452 U.S., at 703. The strength of this interest here is equal to its strength in Summers. See, e.g., United States v. Montieth, 662 F.3d 660, 663 (CA4 2011) (After being followed, detained, and returned to his home, Montieth helped officers find “mari- juana, firearms, and cash”). The Court in Summers did not emphasize any other consideration. IV There is, however, one further consideration, namely an administrative consideration. A bright line will some- times help police more easily administer Fourth Amend- ment rules, while also helping to ensure that the police do not go beyond the bounds of the reasonable. The majority, however, offers no easily administered bright line. It de- scribes its line as one drawn at “the immediate vicinity of the premises to be searched,” to be determined by “a number of factors . . . including [but not limited to] the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Ante, at 13. The majority’s line invites case-by-case litiga- tion although, divorced as it is from interests that directly motivate the Fourth Amendment, it offers no clear case- by-case guidance. In any event, as the lower courts pointed out, considera- tions related to the risks of flight, of evidence destruction, and of physical danger overcome any administrative ad- vantages. Consider why the officers here waited until the occupants had left the block to stop them: They did so because the occupants might have been armed. Indeed, even if those emerging occupants were not armed (and even if the police knew it), those emerging occupants might have seen the officers outside the house. And they might have alerted others inside the house 6 BAILEY v. UNITED STATES BREYER, J., dissenting where, as we now know (and the officers had probable cause to believe), there was a gun lying on the floor in plain view. App. 202. Suppose those inside the house, once alerted, had tried to flee with the evidence. Suppose they had destroyed the evidence. Suppose that one of them had picked up the gun and fired when the officers entered. Suppose that an individual inside the house (perhaps under the influence of drugs) had grabbed the gun and begun to fire through the window, endangering police, neighbors, or families passing by. See id., at 26 (informant describing gun’s relation to drugs in the house). Considerations of this kind reveal the dangers inherent in the majority’s effort to draw a semi-bright line. And they show the need here and in this class of cases to test the constitutionality of the details of a search warrant’s execution by taking more directly into account concerns related to safety, evidence, and flight, i.e., the kinds of concerns more directly related to the Fourth Amendment’s “ultimate touchstone of . . . reasonableness.” Kentucky v. King, 563 U. S. ___, ___ (2011) (internal quotation marks omitted) (slip op., at 5). See New York v. Class, 475 U.S. 106, 116–117 (1986) (assessing Fourth Amendment rea- sonableness “[i]n light of the danger to the officers’ safe- ty”); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per curiam) (“We think it too plain for argument that the State’s proffered justification [for a stop]—the safety of the officer—is both legitimate and weighty”). See also Mary- land v. Buie, 494 U.S. 325, 335, n. 2 (1990) (assessing Fourth Amendment reasonableness based on “the proper balance between officer safety and citizen privacy”). V The majority responds by pointing out that the police “are not required to stop” “a departing individual.” Ante, at 8. Quite right. But that response is not convincing. Cite as: 568 U. S. ____ (2013) 7 BREYER, J., dissenting After all, the police do not know whether an emerging individual has seen an officer. If he has, the risks are as I have described them, e.g., that those inside may learn of imminent police entry and fire the gun. In any event, the police may fear that they might be or have been spotted. And they may consequently feel the need, under the ma- jority’s rule, to seize the emerging individual just before he leaves the “vicinity” but just too soon to guard against the danger of physical harm inherent in any search for guns. The majority adds that, where the departing individ- uals themselves are dangerous, Terry v. Ohio, 392 U.S. 1 (1968), may authorize detention. Terry, however, is irrele- vant where the risks at issue are those of flight, destruc- tion of evidence, or harm caused by those inside the house shooting at police or passersby. Finally, the majority creates hypothetical specific exam- ples of abuse, such as detention “10 miles away” from one’s home at an airport and detention “five hours” after an occupant departs from the premises. Ante, at 11, 8. The seizures the majority imagines, however, strike me as red herrings, for I do not see how they could be justified as having taken place as soon as “reasonably practicable.” Indeed, the majority can find no such example in any actual case—even though almost every Court of Appeals to have considered the matter has taken the Second Circuit’s approach. See, e.g., Montieth, 662 F.3d, at 666–669 (“as soon as practicable”); United States v. Cavazos, 288 F.3d 706, 711–712 (CA5 2002) (rejecting “geographic proximity” as the test under Summers); United States v. Cochran, 939 F.2d 337, 338–340 (CA6 1991) (“as soon as practicable”); United States v. Bullock, 632 F.3d 1004, 1018–1021 (CA7 2011) (“as soon as practicable”); United States v. Castro- Portillo, 211 Fed. Appx. 715, 720–723 (CA10 2007) (“as soon as practicable”); United States v. Sears, 139 Fed. Appx. 162, 166 (CA11 2005) (per curiam) (“as soon as practicable”). 8 BAILEY v. UNITED STATES BREYER, J., dissenting While it is true that a hypothetical occupant whom police do not encounter until he is far from the searchable premises could engage some of the Summers rationales, that hypothetical occupant would do so significantly less often than would an occupant like Bailey. The difference is obvious: A hypothetical occupant 10 miles away from the searchable premises is less likely to learn of the search (and thus less likely to alert those inside or return to disrupt the search) than is an occupant like Bailey, who may perceive the police presence without alerting the police to the fact that he noticed them. It is even less likely—indeed impossible—that the lower court’s rule would (as the majority claims) permit “detain- ing anyone in the neighborhood,” ante, at 9, for the rule explicitly applies only to those “in the process of leaving the premises,” 652 F.3d, at 206. More fundamentally, Summers explained that detention incident to a search is permissible because, once police have obtained a search warrant, they “have an articulable basis for suspecting criminal activity.” 452 U.S., at 699. That articulable, individualized suspicion attaches to the “particularly describ[ed] . . . place to be searched.” U. S. Const., Amdt. 4. In turn, the connection between individ- ualized suspicion of that place and individualized suspi- cion of “an individual in the process of leaving the premises” is sufficiently tight to justify detention. 652 F.3d, at 206. That connection dissipates when the individual is not actually leaving the premises where, according to a neutral magistrate, there is probable cause to believe contraband can be found, and the Summers justification therefore does not apply. Hence, Summers applies only where the connection between the searchable premises and the detained occupant is as tight as it is in cases like Summers and this one: In both, a departing occupant had just left his home and was merely turned around and escorted back there for the duration of a search. Cite as: 568 U. S. ____ (2013) 9 BREYER, J., dissenting * * * In sum, I believe that the majority has substituted a line based on indeterminate geography for a line based on realistic considerations related to basic Fourth Amend- ment concerns such as privacy, safety, evidence destruc- tion, and flight. In my view, these latter considerations should govern the Fourth Amendment determination at issue here. I consequently dissent. 10 BAILEY v. UNITED STATES BREYER, J., dissenting Appendix to opinion of BREYER, J. Appendix Shown above, from right to left, is the path of approximately 0.7 miles traveled by police as they followed petitioner Bailey and his companion

Did the police act reasonably when they followed (for 0.7 miles), and then detained, two men who left a basement apartment as the police were about to enter to execute a search warrant for a gun? The Court of Appeals for the Second Circuit found that the police action was reasonable because (1) the “premises [were] subject to a valid search warrant,” (2) the detained persons were “seen leaving those premises,” and (3) “the detention [was] effected as soon as reasonably practicable.” In light of the risks of flight, of evidence destruction, and of human injury present in this and similar cases, I would follow the approach of the Court of Appeals and uphold its determination. I The Court of Appeals rested its holding upon well- supported District Court findings. The police stopped the men “at the earliest practicable location that was con- sistent with the safety and security of the officers and the public.” “[D]etention in open view outside the residence” would have subjected the officers “to additional dangers during the execution of the search,” and it would have “poten- 2 BAILEY v. UNITED STATES BREYER, J., dissenting tially frustrat[ed] the whole purpose of the search due to destruction of evidence.” It also could have “jeopardize[d] the search or endanger[ed] the lives of the officers by allowing any other occupants inside the residence, who might see or hear the detention of the individual outside the residence as he was leaving, to have some time to (1) destroy or hide incriminating evidence just before the police are about to enter for the search; (2) flee through a back door or window; or (3) arm themselves in preparation for a violent confrontation with the police when they entered to conduct the search.” at Moreover, the police stopped the men’s car “at the first spot where they determined it was safe to conduct the stop,” namely after the car, which had traveled a few blocks along busier streets and intersections, turned off on a quieter side road. II The holding by the Court of Appeals is strongly supported by Supreme Court precedent. In this Court held that “a warrant to search for contraband founded on probable cause implic- itly carries with it the limited authority to detain the occu- pants of the premises while a proper search is conducted.” And the similarities be- tween Summers and this case are multiple. In Summers the police had a valid warrant based on probable cause to search a house for drugs. Here the police had a valid warrant based on probable cause to search a house for a gun and ammunition, believed to be used in multiple drug deals. App. 16–18, 26. In Summers the police, be- ginning to execute that warrant, were outside the 452 U.S., Here the police, beginning to execute that warrant, were outside the 468 F. Supp. 2d, at Cite as: 568 U. S. (2013) 3 BREYER, J., dissenting 376. In Summers the police then “encountered” an occu- pant of the house “descending the front steps.” 452 U.S., Here the police then encountered two occupants of the house ascending the back (basement) steps. 468 F. Supp. 2d, at 376; App. 43, 45. In Summers the police entered the house soon after encountering that occupant. 452 U.S., Here the police entered the house soon after encountering those occupants (while other officers pursued them). App. 49, 59–60. In Summers the police detained the occupant while they engaged in their search. 452 U.S., Here the police did the same. 468 F. Supp. 2d, at 377. Thus, given Summers, only one question is open. In Summers the police detained the occupant before he left “the sidewalk outside” of the n. 16. Here the police, for good reason, permitted the occupants to leave the premises and stopped them a few blocks from the App. 48, 72, 86, 103. (See Appen- dix, infra.) The resulting question is whether this differ- ence makes a constitutional difference. In particular, which is the right constitutional line to demarcate where a Summers detention may be initiated? Is it the Court’s line, drawn at the “immediate vicinity” of the house? Ante, at 12. Or is it the Second Circuit’s line, drawn on the basis of what is “reasonably practicable”? 652 F.3d, at 207. I agree, of course, with the concurrence that the question involves drawing a line of demarcation granting a categorical form of detention authority. The question is simply where that line should be drawn. III The Court in Summers rested its conclusion upon four considerations, each of which strongly supports the rea- sonableness of Bailey’s detention, and each of which is as likely or more likely to support detention of an occupant of searchable premises detained “as soon as reasonably 4 BAILEY v. UNITED STATES BREYER, J., dissenting practicable,” 652 F.3d, at as it is to support the de- tention of an occupant detained “within the immediate vicinity” of those premises, ante, at 13. First, the Court in Summers found “[o]f prime importance the fact that the police had obtained a warrant to search [the occu- pant’s] house for contraband.” That fact meant that the additional detention-related “invasion of the privacy of the persons who resided there” was “less intrusive” than in a typical detention. The same is true here and always true in this class of cases. Second, the Court in Summers said that the detention was justified in part by “the legitimate law enforcement interest in preventing flight in the event that incriminat- ing evidence is found.” This factor, which Summers identifies as the “[m]ost obvious” rationale supporting detention, ib will be present in all Summers detentions. Summers applies when police have a search warrant for contraband, and any occupant departing a residence containing contraband will have incentive to flee once he encounters police. Indeed, since here the warrant itself described the possessor of the unlawful gun in terms that applied to both of the detained occupants, App. 46, the strength of this interest is equal to or greater than its strength in Summers. Third, the Court in Summers said that the detention was justified in part by “the interest in minimizing the risk of harm to the officers.” The strength of this interest is greater here than in Summers, for here there was good reason, backed by probable cause, to believe that “[a] chrome handgun, ammunition, [and] magazine clips” were on the premises. App. 17. As I discuss below, the interest in minimizing harm to officers is compromised by encouraging them to initiate searches before they are prepared to do so safely. Fourth, the Court in Summers said that “the orderly completion of the search may be facilitated if the occu- Cite as: 568 U. S. (2013) 5 BREYER, J., dissenting pants of the premises are present.” The strength of this interest here is equal to its strength in Summers. See, e.g., United States v. 662 F.3d 660, 663 (After being followed, detained, and returned to his home, helped officers find “mari- juana, firearms, and cash”). The Court in Summers did not emphasize any other consideration. IV There is, however, one further consideration, namely an administrative consideration. A bright line will some- times help police more easily administer Fourth Amend- ment rules, while also helping to ensure that the police do not go beyond the bounds of the reasonable. The majority, however, offers no easily administered bright line. It de- scribes its line as one drawn at “the immediate vicinity of the premises to be searched,” to be determined by “a number of factors including [but not limited to] the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Ante, at 13. The majority’s line invites case-by-case litiga- tion although, divorced as it is from interests that directly motivate the Fourth Amendment, it offers no clear case- by-case guidance. In any event, as the lower courts pointed out, considera- tions related to the risks of flight, of evidence destruction, and of physical danger overcome any administrative ad- vantages. Consider why the officers here waited until the occupants had left the block to stop them: They did so because the occupants might have been armed. Indeed, even if those emerging occupants were not armed (and even if the police knew it), those emerging occupants might have seen the officers outside the And they might have alerted others inside the house 6 BAILEY v. UNITED STATES BREYER, J., dissenting where, as we now know (and the officers had probable cause to believe), there was a gun lying on the floor in plain view. App. 202. Suppose those inside the house, once alerted, had tried to flee with the evidence. Suppose they had destroyed the evidence. Suppose that one of them had picked up the gun and fired when the officers entered. Suppose that an individual inside the house (perhaps under the influence of drugs) had grabbed the gun and begun to fire through the window, endangering police, neighbors, or families passing by. See (informant describing gun’s relation to drugs in the house). Considerations of this kind reveal the dangers inherent in the majority’s effort to draw a semi-bright line. And they show the need here and in this class of cases to test the constitutionality of the details of a search warrant’s execution by taking more directly into account concerns related to safety, evidence, and flight, i.e., the kinds of concerns more directly related to the Fourth Amendment’s “ultimate touchstone of reasonableness.” Kentucky v. King, 563 U. S. (internal quotation marks omitted) (slip op., at 5). See New York v. Class, 475 U.S. 106, 116–117 (1986) (assessing Fourth Amendment rea- sonableness “[i]n light of the danger to the officers’ safe- ty”); (per curiam) (“We think it too plain for argument that the State’s proffered justification [for a stop]—the safety of the officer—is both legitimate and weighty”). See also Mary- (assessing Fourth Amendment reasonableness based on “the proper balance between officer safety and citizen privacy”). V The majority responds by pointing out that the police “are not required to stop” “a departing individual.” Ante, at 8. Quite right. But that response is not convincing. Cite as: 568 U. S. (2013) 7 BREYER, J., dissenting After all, the police do not know whether an emerging individual has seen an officer. If he has, the risks are as I have described them, e.g., that those inside may learn of imminent police entry and fire the gun. In any event, the police may fear that they might be or have been spotted. And they may consequently feel the need, under the ma- jority’s rule, to seize the emerging individual just before he leaves the “vicinity” but just too soon to guard against the danger of physical harm inherent in any search for guns. The majority adds that, where the departing individ- uals themselves are dangerous, (1968), may authorize detention. Terry, however, is irrele- vant where the risks at issue are those of flight, destruc- tion of evidence, or harm caused by those inside the house shooting at police or passersby. Finally, the majority creates hypothetical specific exam- ples of abuse, such as detention “10 miles away” from one’s home at an airport and detention “five hours” after an occupant departs from the premises. Ante, at 11, 8. The seizures the majority imagines, however, strike me as red herrings, for I do not see how they could be justified as having taken place as soon as “reasonably practicable.” Indeed, the majority can find no such example in any actual case—even though almost every Court of Appeals to have considered the matter has taken the Second Circuit’s approach. See, e.g., –669 (“as soon as practicable”); United States v. Cavazos, 288 F.3d 706, 711–712 (CA5 2002) (rejecting “geographic proximity” as the test under Summers); United States v. Cochran, 939 F.2d 337, 338–340 (CA6 1991) (“as soon as practicable”); United 1018–1021 (“as soon as practicable”); United (“as soon as practicable”); United States v. Sears, 139 Fed. Appx. 162, 166 (CA11 2005) (per curiam) (“as soon as practicable”). 8 BAILEY v. UNITED STATES BREYER, J., dissenting While it is true that a hypothetical occupant whom police do not encounter until he is far from the searchable premises could engage some of the Summers rationales, that hypothetical occupant would do so significantly less often than would an occupant like Bailey. The difference is obvious: A hypothetical occupant 10 miles away from the searchable premises is less likely to learn of the search (and thus less likely to alert those inside or return to disrupt the search) than is an occupant like Bailey, who may perceive the police presence without alerting the police to the fact that he noticed them. It is even less likely—indeed impossible—that the lower court’s rule would (as the majority claims) permit “detain- ing anyone in the neighborhood,” ante, at 9, for the rule explicitly applies only to those “in the process of leaving the premises,” More fundamentally, Summers explained that detention incident to a search is permissible because, once police have obtained a search warrant, they “have an articulable basis for suspecting criminal activity.” That articulable, individualized suspicion attaches to the “particularly describ[ed] place to be searched.” U. S. Const., Amdt. 4. In turn, the connection between individ- ualized suspicion of that place and individualized suspi- cion of “an individual in the process of leaving the premises” is sufficiently tight to justify detention. 652 F.3d, at 206. That connection dissipates when the individual is not actually leaving the premises where, according to a neutral magistrate, there is probable cause to believe contraband can be found, and the Summers justification therefore does not apply. Hence, Summers applies only where the connection between the searchable premises and the detained occupant is as tight as it is in cases like Summers and this one: In both, a departing occupant had just left his home and was merely turned around and escorted back there for the duration of a search. Cite as: 568 U. S. (2013) 9 BREYER, J., dissenting * * * In sum, I believe that the majority has substituted a line based on indeterminate geography for a line based on realistic considerations related to basic Fourth Amend- ment concerns such as privacy, safety, evidence destruc- tion, and flight. In my view, these latter considerations should govern the Fourth Amendment determination at issue here. I consequently dissent. 10 BAILEY v. UNITED STATES BREYER, J., dissenting Appendix to opinion of BREYER, J. Appendix Shown above, from right to left, is the path of approximately 0.7 miles traveled by police as they followed petitioner Bailey and his companion

Justice Breyer

dissenting

Wisconsin Central Ltd. v. United States

2018-06-21

https://www.courtlistener.com/opinion/4509417/wisconsin-central-ltd-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4509417/

2017-057

The case before us concerns taxable “compensation” under the Railroad Retirement Tax Act. The statute defines the statutory word “compensation” as including “any form of money remuneration paid to an individual for services rendered.” 26 U.S. C. §3231(e)(1). Does that phrase include stock options paid to railroad employees “for services rendered”? Ibid. In my view, the language itself is ambiguous but other traditional tools of statutory interpretation point to the answer, “yes.” Consequently, the Government’s interpretation of the language—which it has followed consistently since the inception of the stat- ute—is lawful. I therefore dissent. I A stock option consists of a right to buy a specified amount of stock at a specific price. If that price is lower than the current market price of the stock, a holder of the option can exercise the option, buy the stock at the option price, and keep the stock, or he can buy the stock, sell it at the higher market price, and pocket the difference. Com- panies often compensate their employees in part by paying them with stock options, hoping that by doing so they will provide an incentive for their employees to work harder to 2 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting increase the value of the company. Employees at petitioners’ companies who receive and exercise a stock option may keep the stock they buy as long as they wish. But they also have another choice called the “cashless exercise” method. App. 42. That method permits an employee to check a box on a form, thereby asking the company’s financial agents to buy the stock (at the option price) and then immediately sell the stock (at the higher market price) with the proceeds depos- ited into the employee’s bank account—just like a deposited paycheck. Ibid. About half (around 49%) of petitioners’ employees used this method (or a variation of it) during the relevant time period. Separate App. of Plaintiffs- Appellants in No. 16–3300 (CA7), p. 45. The Solicitor General tells us that many more employees at other rail- roads also use this “cashless exercise” method—93% in the case of CSX, 90% to 95% in the case of BNSF. Brief for United States 20 (citing CSX Corp. v. United States, 2017 WL 2800181, *2 (MD Fla., May 2, 2017), and BNSF R. Co. v. United States, 775 F.3d 743, 747 (CA5 2015)). II A Does a stock option received by an employee (along with, say, a paycheck) count as a “form”—some form, “any form”—of “money remuneration?” The railroads, as the majority notes, believe they can find the answer to this question by engaging in (and winning) a war of 1930’s dictionaries. I am less sanguine. True, some of those dictionaries say that “money” primarily refers to currency or promissory documents used as “a medium of exchange.” See ante, at 2–3. But even this definition has its ambigui- ties. A railroad employee cannot use her paycheck as a “medium of exchange.” She cannot hand it over to a cash- ier at the grocery store; she must first deposit it. The same is true of stock, which must be converted into cash Cite as: 585 U. S. ____ (2018) 3 BREYER, J., dissenting and deposited in the employee’s account before she can enjoy its monetary value. Moreover, what we view as money has changed over time. Cowrie shells once were such a medium but no longer are, see J. Weatherford, The History of Money 24 (1997); our currency originally included gold coins and bullion, but, after 1934, gold could not be used as a medium of exchange, see Gold Reserve Act of 1934, ch. 6, §2, 48 Stat. 337; perhaps one day employees will be paid in Bitcoin or some other type of cryptocurrency, see F. Martin, Money: The Unauthorized Biography— From Coinage to Cryptocurrencies 275–278 (1st Vintage Books ed. 2015). Nothing in the statute suggests the meaning of this provision should be trapped in a monetary time warp, forever limited to those forms of money com- monly used in the 1930’s. Regardless, the formal “medium of exchange” definition is not the only dictionary definition of “money,” now or then. The Oxford English Dictionary, for example, included in its definition “property or possessions of any kind viewed as convertible into money,” 6 Oxford English Dic- tionary 603 (1st ed. 1933); Black’s Law Dictionary said that money was the representative of “everything that can be transferred in commerce,” Black’s Law Dictionary 1200 (3d ed. 1933); and the New Century Dictionary defined money as “property considered with reference to its pecu- niary value,” 1 New Century Dictionary of the English Language 1083 (1933). Although the majority brushes these definitions aside as contrary to the term’s “ordinary usage,” ante, at 6, a broader understanding of money is perfectly intuitive—particularly in the context of compen- sation. Indeed, many of the country’s top executives are compensated in both cash and stock or stock options. Often, as is the case with the president of petitioners’ parent company, executives’ stock-based compensation far exceeds their cash salary. Brief for United States 6–7. But if you were to ask (on, say, a mortgage application) 4 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting how much money one of those executives made last year, it would make no sense to leave the stock and stock options out of the calculation. So, where does this duel of definitions lead us? Some seem too narrow; some seem too broad; some seem inde- terminate. The result is ambiguity. Were it up to me to choose based only on what I have discussed so far, I would say that a stock option is a “form of money remuneration.” Why? Because for many employees it almost immediately takes the form of an increased bank balance, because it strongly resembles a paycheck in this respect, and because the statute refers to “any form” of money remuneration. A paycheck is not money, but it is a means of remunerating employees monetarily. The same can be said of stock options. B Fortunately, we have yet more tools in our interpretive arsenal, namely, all the “traditional tools of statutory construction.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987). Let us look to purpose. What could Congress’ purpose have been when it used the word “money”? The most obvious purpose would be to exclude certain in-kind benefits that are nonmonetary—either because they are nontransferrable or otherwise difficult to value. When Congress enacted the statute, it was common for railroad workers to receive free transportation for life. Taxation of Interstate Carriers and Employees: Hearings on H. R. 8652 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 6 (1935). Unlike stock options, it would have been difficult to value this benefit. And even very broad definitions of “money” would seem to exclude it. E.g., 6 Oxford English Dictionary, at 603. Another interpretive tool, the statute’s history, tends to confirm this view of the statutory purpose (and further supports inclusion of stock options for that reason). An Cite as: 585 U. S. ____ (2018) 5 BREYER, J., dissenting earlier version of the Act explicitly excluded from taxation any “free transportation,” along with such in-kind benefits as “board, rents, housing, [and] lodging” provided that their value was less than $10 per month (about $185 per month today). S. 2862, 74th Cong., 1st Sess., §1(e), p. 3 (1935). In other words, they were incidental benefits that were particularly difficult to value. Congress later dropped these specific provisions from the bill on the ground that they were “superfluous.” S. Rep. No. 697, 75th Cong., 1st Sess., 8 (1937). Excluding stock options from taxation under the statute would not further this basic purpose and would be incon- sistent with this aspect of the statute’s history, for stock options are financial instruments. They can readily be bought and sold, they are not benefits in kind (i.e., they have no value to employees other than their financial value), and—compared to, say, meals or spontaneous train trips—they are not particularly difficult to value. Nor is it easy to see what purpose the majority’s inter- pretation would serve. Congress designed the Act to provide a financially stable, self-sustaining system of retirement benefits for railroad employees. See S. Rep. No. 6, 83d Cong., 1st Sess., pt. 1, pp. 64–65 (1953); see also 2 Staff of the House Committee on Interstate and Foreign Commerce and the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 12–15 (Jt. Comm. Print 1972) (describing financial difficulties facing the private railroad pension programs that Congress sought to re- place). Nevertheless, petitioners speculate that Congress intended to limit the Act’s tax base to employees’ “regular pay” because that more closely resembled the way private pensions in the railroad industry calculated a retiree’s annuity. Brief for Petitioners 8. But the Act taxes not simply monthly paychecks but also bonuses, commissions, and contributions to an employee’s retirement account (like a 401(k)), see §§3231(e)(1), (8)—none of which were 6 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting customarily considered in railroad pension calculations. Why distinguish stock options from these other forms of money remuneration—particularly when almost half the employees who participated in petitioners’ stock option plan (and nearly all such employees at other railroads) have the option’s value paid directly into their bank ac- counts in cash? See supra, at 2. The statute’s structure as later amended offers further support. That is because a later amendment expressly excluded from taxation certain stock options, namely, “[q]ualified stock options,” see §3231(e)(12), which tax law treats more favorably (and which are also excluded from the Social Security tax base, §3121(a)(22)). What need would there be to exclude expressly a subset of stock options if the statute already excluded all stock options from its coverage? The same is true of certain in- kind benefits, such as life-insurance premiums. See §3231(e)(1)(i). Congress has more recently amended the statute to exclude expressly other hard-to-value fringe benefits. See §3231(e)(5). Again what need would there be to do so if all noncash benefits, including stock options, were already excluded? C There are, of course, counterarguments and other con- siderations, which the majority sets forth in its opinion. The majority asserts, for example, that Congress must have intended the Act to be read more narrowly because, shortly after enacting the statutory language at issue in this dispute, Congress enacted the Federal Insurance Contributions Act (FICA), which uses different language to establish its tax base. The Railroad Retirement Tax Act defines “compensation” in part as “any form of money remuneration,” §3231(e)(1) while FICA defines “wages” as including the “cash value of all remuneration (including benefits) paid in any medium other than cash,” §3121(a). Cite as: 585 U. S. ____ (2018) 7 BREYER, J., dissenting But there is no canon of interpretation forbidding Con- gress to use different words in different statutes to mean somewhat the same thing. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 540 (2013). And the meaning of the statutory terms as I read them are not identical, given FICA’s definition of “wages” would include those types of noncash benefits that the Railroad Retirement Tax Act exempts from taxation. See supra, at 4–5. At most, this conflicting statutory language leaves the meaning of “money remuneration” unclear. In these cir- cumstances, I would give weight to the interpretation of the Government agency that Congress charged with ad- ministering the statute. “Where a statute leaves a ‘gap’ or is ‘ambiguous’ we typically interpret it as granting the agency leeway to enact rules that are reasonable in light of the text, nature, and purpose of the statute.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 13) (citing United States v. Mead Corp., 533 U. S. 218, 229 (2001); Chevron U. S. A. Inc. v. Natural Re- sources Defense Council, Inc., 467 U.S. 837, 843 (1984)). And even outside that framework, I would find the agen- cy’s views here particularly persuasive. Skidmore v. Swift & Co., 323 U.S. 134, 139–140 (1944). The interpretation was made contemporaneously with the enactment of the statute itself, Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933), and the Government has not since interpreted the statute in a way that directly contradicts that contemporaneous interpretation, see, e.g., Cardoza-Fonseca, 480 U.S., at 446, n. 30; Watt v. Alaska, 451 U.S. 259, 272–273 (1981). Congress, over a period of nearly 90 years, has never revised or repealed the agen- cies’ interpretation, despite modifying other provisions in the statute, which “ ‘is persuasive evidence that the inter- pretation is the one intended by Congress.’ ” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 8 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting 274–275 (1974)). Nor did the railroad industry object to the taxation of stock options based on the Government’s interpretation until recent years. See, e.g., Union Pacific R. Co. v. United States, 2016 U. S. Dist. LEXIS 86023, *4– *5 (D Neb., July 1, 2016) (noting that Union Pacific began issuing stock options in tax year 1981 and paid railroad retirement taxes on them for decades, challenging the Government’s interpretation only in 2014). What is that interpretation? Shortly after the Act was passed, the Department of Treasury issued a regulation defining the term “compensation” in the Act as reaching both “all remuneration in money, or in something which may be used in lieu of money (scrip and merchandise orders, for example).” 26 CFR §410.5 (1938). In the 1930’s, “scrip” could refer to “[c]ertificates of ownership, either absolute or conditional, of shares in a public com- pany, corporate profits, etc.” Black’s Law Dictionary, at 1588; C. Alsager, Dictionary of Business Terms 321 (1932) (“A certificate which represents fractions of shares of stock”); 3 F. Stroud, Judicial Dictionary 1802 (2d ed. 1903) (“a [c]ertificate, transferable by delivery, entitling its holder to become a Shareholder or Bondholder in respect of the shares or bonds therein mentioned”). The majority, though clearly fond of 1930’s-era dictionaries, rejects these definitions because, in its view, they do not reflect the term’s “ordinary meaning.” Ante, at 5. But the majority has no basis for this assertion. Contra Eisner v. Macomber, 252 U.S. 189, 227 (1920) (Brandeis, J., dissenting) (re- ferring to “bonds, scrip or stock” as similar instruments of corporate finance). The Treasury Department was not alone in interpreting the term “money remuneration” more broadly. In 1938 the Railroad Retirement Board’s regulations treated the term “any form of money remuneration” as including “a commodity, service, or privilege” that had an “agreed upon” value. 20 CFR §222.2; see also 20 CFR §211.2 Cite as: 585 U. S. ____ (2018) 9 BREYER, J., dissenting (2018) (current version). At least one contemporaneous legal opinion from the Board’s general counsel specifically concluded that stock received by “employees as a part of their agreed compensation for services actually rendered and at a definite agreed value” qualified as a “form of money remuneration.” Railroad Retirement Bd. Gen. Counsel Memorandum No. L–1938–440, p. 2 (Apr. 22, 1938). And in a more recent opinion, the Board’s general counsel stated that nonqualified stock options (the type of stock option at issue in this dispute) are taxable under the Act. Railroad Retirement Bd. Gen. Counsel Memorandum No. L–2005–25, p. 6 (Dec. 2, 2005). The majority plucks from the Act’s long administrative history a 1986 Board legal opinion stating that an in-kind benefit should not be treated as compensation “ ‘unless the employer and employee first agree to [its] dollar value . . . and then agree that this dollar value shall be part of the employee’s compensation package.’ ” Ante, at 8 (quoting Railroad Retirement Bd. Gen. Counsel Memorandum No. L–1986–82, p. 6 (June 3, 1986)). But the majority neglects to share that the deputy general counsel who wrote that legal opinion was not discussing stock or stock options, but rather was discussing a “fringe benefit”—specifically free rail passes employers purchased on behalf of their em- ployees so they could ride on other carriers’ trains. Ibid. As I explained above, supra, at 4–5, such non- transferrable travel benefits were difficult to value and thus were excluded from the Act’s definition of money remuneration. (Though the Board’s willingness to treat at least some fringe benefits as a “form of money remunera- tion” demonstrates that the Board took a more flexible view of the term—a view that is contrary to the rigid dictionary definition of “money” the majority prefers, which excludes all forms of in-kind benefits. See ante, at 2–3.) A stock option, unlike free travel benefits, has a readily 10 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting discernible value: namely, the difference between the option price and the market price when the employee exercises the option. For those employees who use the “cashless exercise” method, that difference is the amount that is deposited into their account as cash (minus fees). See supra, at 2. No one disputes that this is the value of the option when it is exercised. See Stipulations of Fact in No. 14–cv–10243, Exh. 13 (ND Ill.), p. CN168 (describing the taxable benefit from exercising a stock option). And no one disputes that granting employees stock options is a form of remuneration. See ante, at 3 (acknowledging that “ ‘remuneration’ can encompass any kind of reward or compensation”). The 1986 legal opinion on rail passes the majority invokes simply has no bearing on the tax treat- ment of stock options in this case. More recently, the Treasury has issued a regulation stating that the Railroad Retirement Tax Act’s term “com- pensation” (which, the reader will recall, the Act defines as “any form of money remuneration”) has the same mean- ing as the term “wages” in FICA “ ‘except as specifically limited by’ ” the Railroad Retirement Tax Act or by regula- tion. Brief for Petitioners 47. Petitioners do not dispute that FICA long has counted stock options as compensa- tion. See id., at 39–47. Neither the statute’s text nor any regulation limits us from doing the same for the Railroad Retirement Tax Act. If anything, the earlier Treasury and Board regulations and opinions make clear that, in the Treasury Department’s view, the Act does not “specifically limit” the application of its terms by excluding stock op- tions from its coverage. The Treasury Department’s interpretation is a reason- able one. For one thing, it creates greater uniformity be- tween the Railroad Retirement Tax Act’s pension-like taxing system and the Social Security system governed by FICA. To seek administrative uniformity is (other things being equal) a reasonable objective given the similarity of Cite as: 585 U. S. ____ (2018) 11 BREYER, J., dissenting purpose and methods the two Acts embody. And subse- quent amendments to the Railroad Retirement Tax Act (which have generally mirrored provisions in FICA) demonstrate that Congress intended these tax regimes to be treated the same. See Update of Railroad Retirement Tax Act Regulations, 59 Fed. Reg. 66188 (1994) (observing that Congress has taken steps to “confor[m] the structure of the [Railroad Retirement Tax Act] to parallel that of the FICA”); compare §§3231(e)(1), (9) with §§3121(a)(2)(C), (a)(19). For another, it helps to avoid the unfairness that would arise out of treating differently two individuals (who received roughly the same amount of money in their bank accounts) simply because one received a paycheck while the other received proceeds from selling company stock. Here, in respect to stock options, the Act’s language has a degree of ambiguity. But the statute’s purpose, along with its amendments, argues in favor of including stock options. The Government has so interpreted the statute for decades, and Congress has never suggested it held a contrary view, despite making other statutory changes. In these circumstances, I believe the Government has the stronger argument. I would read the statutory phrase as including stock options. And, with respect, I dissent from the majority’s contrary view

The case before us concerns taxable “compensation” under the Railroad Retirement Tax Act. The statute defines the statutory word “compensation” as including “any form of money remuneration paid to an individual for services rendered.” 26 U.S. C. Does that phrase include stock options paid to railroad employees “for services rendered”? In my view, the language itself is ambiguous but other traditional tools of statutory interpretation point to the answer, “yes.” Consequently, the Government’s interpretation of the language—which it has followed consistently since the inception of the stat- ute—is lawful. I therefore dissent. I A stock option consists of a right to buy a specified amount of stock at a specific price. If that price is lower than the current market price of the stock, a holder of the option can exercise the option, buy the stock at the option price, and keep the stock, or he can buy the stock, sell it at the higher market price, and pocket the difference. Com- panies often compensate their employees in part by paying them with stock options, hoping that by doing so they will provide an incentive for their employees to work harder to 2 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting increase the value of the company. Employees at petitioners’ companies who receive and exercise a stock option may keep the stock they buy as long as they wish. But they also have another choice called the “cashless exercise” method. App. 42. That method permits an employee to check a box on a form, thereby asking the company’s financial agents to buy the stock (at the option price) and then immediately sell the stock (at the higher market price) with the proceeds depos- ited into the employee’s bank account—just like a deposited paycheck. About half (around 49%) of petitioners’ employees used this method (or a variation of it) during the relevant time period. Separate App. of Plaintiffs- Appellants in No. 16–3300 (CA7), p. 45. The Solicitor General tells us that many more employees at other rail- roads also use this “cashless exercise” method—93% in the case of CSX, 90% to 95% in the case of BNSF. Brief for United States 20 (citing CSX Corp. v. United States, 2017 WL 2800181, *2 (MD Fla., May 2, 2017), and BNSF R. Co. v. United States, ). II A Does a stock option received by an employee (along with, say, a paycheck) count as a “form”—some form, “any form”—of “money remuneration?” The railroads, as the majority notes, believe they can find the answer to this question by engaging in (and winning) a war of 1930’s dictionaries. I am less sanguine. True, some of those dictionaries say that “money” primarily refers to currency or promissory documents used as “a medium of exchange.” See ante, –3. But even this definition has its ambigui- ties. A railroad employee cannot use her paycheck as a “medium of exchange.” She cannot hand it over to a cash- ier at the grocery store; she must first deposit it. The same is true of stock, which must be converted into cash Cite as: 585 U. S. (2018) 3 BREYER, J., dissenting and deposited in the employee’s account before she can enjoy its monetary value. Moreover, what we view as money has changed over time. Cowrie shells once were such a medium but no longer are, see J. Weatherford, The History of Money 24 (1997); our currency originally included gold coins and bullion, but, after 1934, gold could not be used as a medium of exchange, see Gold Reserve Act of 1934, ch. 6, ; perhaps one day employees will be paid in Bitcoin or some other type of cryptocurrency, see F. Martin, Money: The Unauthorized Biography— From Coinage to Cryptocurrencies 275–278 Nothing in the statute suggests the meaning of this provision should be trapped in a monetary time warp, forever limited to those forms of money com- monly used in the 1930’s. Regardless, the formal “medium of exchange” definition is not the only dictionary definition of “money,” now or then. The Oxford English Dictionary, for example, included in its definition “property or possessions of any kind viewed as convertible into money,” 6 Oxford English Dic- tionary 603 ; Black’s Law Dictionary said that money was the representative of “everything that can be transferred in commerce,” Black’s Law Dictionary 1200 ; and the New Century Dictionary defined money as “property considered with reference to its pecu- niary value,” 1 New Century Dictionary of the English Language 1083 Although the majority brushes these definitions aside as contrary to the term’s “ordinary usage,” ante, at 6, a broader understanding of money is perfectly intuitive—particularly in the context of compen- sation. Indeed, many of the country’s top executives are compensated in both cash and stock or stock options. Often, as is the case with the president of petitioners’ parent company, executives’ stock-based compensation far exceeds their cash salary. Brief for United States 6–7. But if you were to ask (on, say, a mortgage application) 4 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting how much money one of those executives made last year, it would make no sense to leave the stock and stock options out of the calculation. So, where does this duel of definitions lead us? Some seem too narrow; some seem too broad; some seem inde- terminate. The result is ambiguity. Were it up to me to choose based only on what I have discussed so far, I would say that a stock option is a “form of money remuneration.” Why? Because for many employees it almost immediately takes the form of an increased bank balance, because it strongly resembles a paycheck in this respect, and because the statute refers to “any form” of money remuneration. A paycheck is not money, but it is a means of remunerating employees monetarily. The same can be said of stock options. B Fortunately, we have yet more tools in our interpretive arsenal, namely, all the “traditional tools of statutory construction.” (1987). Let us look to purpose. What could Congress’ purpose have been when it used the word “money”? The most obvious purpose would be to exclude certain in-kind benefits that are nonmonetary—either because they are nontransferrable or otherwise difficult to value. When Congress enacted the statute, it was common for railroad workers to receive free transportation for life. Taxation of Interstate Carriers and Employees: Hearings on H. R. 8652 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 6 (1935). Unlike stock options, it would have been difficult to value this benefit. And even very broad definitions of “money” would seem to exclude it. E.g., 6 Oxford English Dictionary, at 603. Another interpretive tool, the statute’s history, tends to confirm this view of the statutory purpose (and further supports inclusion of stock options for that reason). An Cite as: 585 U. S. (2018) 5 BREYER, J., dissenting earlier version of the Act explicitly excluded from taxation any “free transportation,” along with such in-kind benefits as “board, rents, housing, [and] lodging” provided that their value was less than $10 per month (about $185 per month today). S. 2862, 74th Cong., 1st Sess., p. 3 (1935). In other words, they were incidental benefits that were particularly difficult to value. Congress later dropped these specific provisions from the bill on the ground that they were “superfluous.” S. Rep. No. 697, 75th Cong., 1st Sess., 8 (1937). Excluding stock options from taxation under the statute would not further this basic purpose and would be incon- sistent with this aspect of the statute’s history, for stock options are financial instruments. They can readily be bought and sold, they are not benefits in kind (i.e., they have no value to employees other than their financial value), and—compared to, say, meals or spontaneous train trips—they are not particularly difficult to value. Nor is it easy to see what purpose the majority’s inter- pretation would serve. Congress designed the Act to provide a financially stable, self-sustaining system of retirement benefits for railroad employees. See S. Rep. No. 6, 83d Cong., 1st Sess., pt. 1, pp. 64–65 (1953); see also 2 Staff of the House Committee on Interstate and Foreign Commerce and the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 12–15 (Jt. Comm. Print 1972) (describing financial difficulties facing the private railroad pension programs that Congress sought to re- place). Nevertheless, petitioners speculate that Congress intended to limit the Act’s tax base to employees’ “regular pay” because that more closely resembled the way private pensions in the railroad industry calculated a retiree’s annuity. Brief for Petitioners 8. But the Act taxes not simply monthly paychecks but also bonuses, commissions, and contributions to an employee’s retirement account (like a 401(k)), see (8)—none of which were 6 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting customarily considered in railroad pension calculations. Why distinguish stock options from these other forms of money remuneration—particularly when almost half the employees who participated in petitioners’ stock option plan (and nearly all such employees at other railroads) have the option’s value paid directly into their bank ac- counts in cash? See The statute’s structure as later amended offers further support. That is because a later amendment expressly excluded from taxation certain stock options, namely, “[q]ualified stock options,” see which tax law treats more favorably (and which are also excluded from the Social Security tax base, What need would there be to exclude expressly a subset of stock options if the statute already excluded all stock options from its coverage? The same is true of certain in- kind benefits, such as life-insurance premiums. See Congress has more recently amended the statute to exclude expressly other hard-to-value fringe benefits. See Again what need would there be to do so if all noncash benefits, including stock options, were already excluded? C There are, of course, counterarguments and other con- siderations, which the majority sets forth in its opinion. The majority asserts, for example, that Congress must have intended the Act to be read more narrowly because, shortly after enacting the statutory language at issue in this dispute, Congress enacted the Federal Insurance Contributions Act (FICA), which uses different language to establish its tax base. The Railroad Retirement Tax Act defines “compensation” in part as “any form of money remuneration,” while FICA defines “wages” as including the “cash value of all remuneration (including benefits) paid in any medium other than cash,” Cite as: 585 U. S. (2018) 7 BREYER, J., dissenting But there is no canon of interpretation forbidding Con- gress to use different words in different statutes to mean somewhat the same thing. See And the meaning of the statutory terms as I read them are not identical, given FICA’s definition of “wages” would include those types of noncash benefits that the Railroad Retirement Tax Act exempts from taxation. See at 4–5. At most, this conflicting statutory language leaves the meaning of “money remuneration” unclear. In these cir- cumstances, I would give weight to the interpretation of the Government agency that Congress charged with ad- ministering the statute. “Where a statute leaves a ‘gap’ or is ‘ambiguous’ we typically interpret it as granting the agency leeway to enact rules that are reasonable in light of the text, nature, and purpose of the statute.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. (2016) (slip op., at 13) (citing United States v. Mead Corp., 533 U. S. 218, 229 (2001); Chevron U. S. A. Inc. v. Natural Re- sources Defense Council, Inc., ). And even outside that framework, I would find the agen- cy’s views here particularly persuasive. The interpretation was made contemporaneously with the enactment of the statute itself, Norwegian Nitrogen Products and the Government has not since interpreted the statute in a way that directly contradicts that contemporaneous interpretation, see, e.g., 480 U.S., at n. 30; Congress, over a period of nearly 90 years, has never revised or repealed the agen- cies’ interpretation, despite modifying other provisions in the statute, which “ ‘is persuasive evidence that the inter- pretation is the one intended by Congress.’ ” Commodity Futures Trading (1986) (quoting 8 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting 274–275 (1974)). Nor did the railroad industry object to the taxation of stock options based on the Government’s interpretation until recent years. See, e.g., Union Pacific R. 2016 U. S. Dist. LEXIS 86023, *4– *5 (D Neb., July 1, 2016) (noting that Union Pacific began issuing stock options in tax year 1981 and paid railroad retirement taxes on them for decades, challenging the Government’s interpretation only in 2014). What is that interpretation? Shortly after the Act was passed, the Department of Treasury issued a regulation defining the term “compensation” in the Act as reaching both “all remuneration in money, or in something which may be used in lieu of money (scrip and merchandise orders, for example).” (1938). In the 1930’s, “scrip” could refer to “[c]ertificates of ownership, either absolute or conditional, of shares in a public com- pany, corporate profits, etc.” Black’s Law Dictionary, at 1588; C. Alsager, Dictionary of Business Terms 321 (1932) (“A certificate which represents fractions of shares of stock”); 3 F. Stroud, Judicial Dictionary 1802 (2d ed. 1903) (“a [c]ertificate, transferable by delivery, entitling its holder to become a Shareholder or Bondholder in respect of the shares or bonds therein mentioned”). The majority, though clearly fond of 1930’s-era dictionaries, rejects these definitions because, in its view, they do not reflect the term’s “ordinary meaning.” Ante, at 5. But the majority has no basis for this assertion. Contra (re- ferring to “bonds, scrip or stock” as similar instruments of corporate finance). The Treasury Department was not alone in interpreting the term “money remuneration” more broadly. In 1938 the Railroad Retirement Board’s regulations treated the term “any form of money remuneration” as including “a commodity, service, or privilege” that had an “agreed upon” value. ; see also Cite as: 585 U. S. (2018) 9 BREYER, J., dissenting (2018) (current version). At least one contemporaneous legal opinion from the Board’s general counsel specifically concluded that stock received by “employees as a part of their agreed compensation for services actually rendered and at a definite agreed value” qualified as a “form of money remuneration.” Railroad Retirement Bd. Gen. Counsel Memorandum No. L–1938–440, p. 2 (Apr. 22, 1938). And in a more recent opinion, the Board’s general counsel stated that nonqualified stock options (the type of stock option at issue in this dispute) are taxable under the Act. Railroad Retirement Bd. Gen. Counsel Memorandum No. L–2005–25, p. 6 (Dec. 2, 2005). The majority plucks from the Act’s long administrative history a 1986 Board legal opinion stating that an in-kind benefit should not be treated as compensation “ ‘unless the employer and employee first agree to [its] dollar value and then agree that this dollar value shall be part of the employee’s compensation package.’ ” Ante, at 8 (quoting Railroad Retirement Bd. Gen. Counsel Memorandum No. L–1986–82, p. 6 (June 3, 1986)). But the majority neglects to share that the deputy general counsel who wrote that legal opinion was not discussing stock or stock options, but rather was discussing a “fringe benefit”—specifically free rail passes employers purchased on behalf of their em- ployees so they could ride on other carriers’ trains. As I explained at 4–5, such non- transferrable travel benefits were difficult to value and thus were excluded from the Act’s definition of money remuneration. (Though the Board’s willingness to treat at least some fringe benefits as a “form of money remunera- tion” demonstrates that the Board took a more flexible view of the term—a view that is contrary to the rigid dictionary definition of “money” the majority prefers, which excludes all forms of in-kind benefits. See ante, –3.) A stock option, unlike free travel benefits, has a readily 10 WISCONSIN CENTRAL LTD. v. UNITED STATES BREYER, J., dissenting discernible value: namely, the difference between the option price and the market price when the employee exercises the option. For those employees who use the “cashless exercise” method, that difference is the amount that is deposited into their account as cash (minus fees). See No one disputes that this is the value of the option when it is exercised. See Stipulations of Fact in No. 14–cv–10243, Exh. 13 (ND Ill.), p. CN168 (describing the taxable benefit from exercising a stock option). And no one disputes that granting employees stock options is a form of remuneration. See ante, at 3 (acknowledging that “ ‘remuneration’ can encompass any kind of reward or compensation”). The 1986 legal opinion on rail passes the majority invokes simply has no bearing on the tax treat- ment of stock options in this case. More recently, the Treasury has issued a regulation stating that the Railroad Retirement Tax Act’s term “com- pensation” (which, the reader will recall, the Act defines as “any form of money remuneration”) has the same mean- ing as the term “wages” in FICA “ ‘except as specifically limited by’ ” the Railroad Retirement Tax Act or by regula- tion. Brief for Petitioners 47. Petitioners do not dispute that FICA long has counted stock options as compensa- tion. See at 39–47. Neither the statute’s text nor any regulation limits us from doing the same for the Railroad Retirement Tax Act. If anything, the earlier Treasury and Board regulations and opinions make clear that, in the Treasury Department’s view, the Act does not “specifically limit” the application of its terms by excluding stock op- tions from its coverage. The Treasury Department’s interpretation is a reason- able one. For one thing, it creates greater uniformity be- tween the Railroad Retirement Tax Act’s pension-like taxing system and the Social Security system governed by FICA. To seek administrative uniformity is (other things being equal) a reasonable objective given the similarity of Cite as: 585 U. S. (2018) 11 BREYER, J., dissenting purpose and methods the two Acts embody. And subse- quent amendments to the Railroad Retirement Tax Act (which have generally mirrored provisions in FICA) demonstrate that Congress intended these tax regimes to be treated the same. See Update of Railroad Retirement Tax Act Regulations, (1994) (observing that Congress has taken steps to “confor[m] the structure of the [Railroad Retirement Tax Act] to parallel that of the FICA”); compare (9) with (a)(19). For another, it helps to avoid the unfairness that would arise out of treating differently two individuals (who received roughly the same amount of money in their bank accounts) simply because one received a paycheck while the other received proceeds from selling company stock. Here, in respect to stock options, the Act’s language has a degree of ambiguity. But the statute’s purpose, along with its amendments, argues in favor of including stock options. The Government has so interpreted the statute for decades, and Congress has never suggested it held a contrary view, despite making other statutory changes. In these circumstances, I believe the Government has the stronger argument. I would read the statutory phrase as including stock options. And, with respect, I dissent from the majority’s contrary view

Justice Breyer

majority

Armour v. Indianapolis

2012-06-04

https://www.courtlistener.com/opinion/801501/armour-v-indianapolis/

https://www.courtlistener.com/api/rest/v3/clusters/801501/

2011-062

For many years, an Indiana statute, the “Barrett Law,” authorized Indiana’s cities to impose upon benefited lot owners the cost of sewer improvement projects. The Law also permitted those lot owners to pay either immediately in the form of a lump sum or over time in installments. In 2005, the city of Indianapolis (City) adopted a new as- sessment and payment method, the “STEP” plan, and it forgave any Barrett Law installments that lot owners had not yet paid. A group of lot owners who had already paid their entire Barrett Law assessment in a lump sum believe that the City should have provided them with equivalent refunds. And we must decide whether the City’s refusal to do so un- constitutionally discriminates against them in violation of the Equal Protection Clause, Amdt. 14, §1. We hold that the City had a rational basis for distinguishing be­ tween those lot owners who had already paid their share of project costs and those who had not. And we conclude that there is no equal protection violation. 2 ARMOUR v. INDIANAPOLIS Opinion of the Court I A Beginning in 1889 Indiana’s Barrett Law permitted cities to pay for public improvements, such as sewage proj- ects, by “apportion[ing]” the costs of a project “equally among all abutting lands or lots.” Ind. Code §36–9–39– 15(b)(3) (2011); see Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1227, n. 13 (Ind. 2000) (proj­ ect’s beneficiaries pay its costs). When a city built a Bar­ rett Law project, the city’s public works board would create an initial lot-owner assessment by “dividing the estimated total cost of the sewage works by the total num­ ber of lots.” §36–9–39–16(a). It might then adjust an individual assessment downward if the lot would benefit less than would others. §36–9–39–17(b). Upon completion of the project, the board would issue a final lot-by-lot assessment. The Law permitted lot owners to pay the assessment either in a single lump sum or over time in installment payments (with interest). The City would collect install­ ment payments “in the same manner as other taxes.” §36–9–37–6. The Law authorized 10-, 20-, or 30-year installment plans. §36–9–37–8.5(a). Until fully paid, an assessment would constitute a lien against the property, permitting the city to initiate foreclosure proceedings in case of a default. §§36–9–37–9(b), –22. For several decades, Indianapolis used the Barrett Law system to fund sewer projects. See, e.g., Conley v. Brum- mit, 92 Ind. App. 620, 621, 176 N.E. 880, 881 (1931) (in banc). But in 2005, the City adopted a new system, called the Septic Tank Elimination Program (STEP), which fi- nanced projects in part through bonds, thereby lowering in­ dividual lot owners’ sewer-connection costs. By that time, the City had constructed more than 40 Barrett Law projects. App. to Pet. for Cert. 5a. We are told that installment-paying lot owners still owed money in respect Cite as: 566 U. S. ____ (2012) 3 Opinion of the Court to 24 of those projects. See Reply Brief for Petitioners 16– 17, n. 3 (citing City’s Response to Plaintiff ’s Brief on Damages, Record in Cox v. Indianapolis, No. 1:09–cv–0435 (SD Ind., Doc. 98–1 (Exh. A)). In respect to 21 of the 24, some installment payments had not yet fallen due; in respect to the other 3, those who owed money were in default. Reply Brief for Petitioners 17, n. 3. B This case concerns one of the 24 still-open Barrett Law projects, namely the Brisbane/Manning Sanitary Sewers Project. The Brisbane/Manning Project began in 2001. It connected about 180 homes to the City’s sewage system. Construction was completed in 2003. The Indianapolis Board of Public Works held an assessment hearing in June 2004. And in July 2004 the Board sent the 180 affected homeowners a formal notice of their payment obligations. The notice made clear that each homeowner could pay the entire assessment—$9,278 per property—in a lump sum or in installments, which would include interest at a 3.5% annual rate. Under an installment plan, payments would amount to $77.27 per month for 10 years; $38.66 per month for 20 years; or $25.77 per month for 30 years. In the event, 38 homeowners chose to pay up front; 47 chose the 10-year plan; 27 chose the 20-year plan; and 68 chose the 30-year plan. And in the first year each home­ owner paid the amount due ($9,278 upfront; $927.80 under the 10-year plan; $463.90 under the 20-year plan, or $309.27 under the 30-year plan). App. to Pet. for Cert. 48a. The next year, however, the City decided to abandon the Barrett Law method of financing. It thought that the Barrett Law’s lot-by-lot payments had become too burden­ some for many homeowners to pay, discouraging changes from less healthy septic tanks to healthier sewer systems. 4 ARMOUR v. INDIANAPOLIS Opinion of the Court See id., at 4a–5a. (For example, homes helped by the Brisbane/Manning Project, at a cost of more than $9,000 each, were then valued at $120,000 to $270,000. App. 67.) The City’s new STEP method of financing would charge each connecting lot owner a flat $2,500 fee and make up the difference by floating bonds eventually paid for by all lot owners citywide. See App. to Pet. for Cert. 5a, n. 5. On October 31, 2005, the City enacted an ordinance implementing its decision. In December, the City’s Board of Public Works enacted a further resolution, Resolution 101, which, as part of the transition, would “forgive all assessment amounts . . . established pursuant to the Bar­ rett Law Funding for Municipal Sewer programs due and owing from the date of November 1, 2005 forward.” App. 72 (emphasis added). In its preamble, the Resolution said that the Barrett Law “may present financial hardships on many middle to lower income participants who most need sanitary sewer service in lieu of failing septic systems”; it pointed out that the City was transitioning to the new STEP method of financing; and it said that the STEP method was based upon a financial model that had “con­ sidered the current assessments being made by partici­ pants in active Barrett Law projects” as well as future projects. Id., at 71–72. The upshot was that those who still owed Barrett Law assessments would not have to make further payments but those who had already paid their assessments would not receive refunds. This meant that homeowners who had paid the full $9,278 Brisbane/ Manning Project assessment in a lump sum the preced- ing year would receive no refund, while homeowners who had elected to pay the assessment in installments, and had paid a total of $309.27, $463.90, or $927.80, would be under no obligation to make further payments. In February 2006, the 38 homeowners who had paid the full Brisbane/Manning Project assessment asked the City for a partial refund (in an amount equal to the smallest Cite as: 566 U. S. ____ (2012) 5 Opinion of the Court forgiven Brisbane/Manning installment debt, apparently $8,062). The City denied the request in part because “[r]efunding payments made in your project area, or any portion of the payments, would establish a precedent of unfair and inequitable treatment to all other property owners who have also paid Barrett Law assessments . . . and while [the November 1, 2005, cutoff date] might seem arbitrary to you, it is essential for the City to establish this date and move forward with the new funding ap­ proach.” Id., at 50–51. C Thirty-one of the thirty-eight Brisbane/Manning Project lump-sum homeowners brought this lawsuit in Indiana state court seeking a refund of about $8,000 each. They claimed in relevant part that the City’s refusal to provide them with refunds at the same time that the City forgave the outstanding Project debts of other Brisbane/Manning homeowners violated the Federal Constitution’s Equal Pro- tection Clause, Amdt. 14, §1; see also Rev. Stat. §1979, 42 U.S. C. §1983. The trial court granted summary judgment in their favor. The State Court of Appeals af­ firmed that judgment. 918 N.E.2d 401 (2009). But the Indiana Supreme Court reversed. 946 N.E.2d 553 (2011). In its view, the City’s distinction between those who had already paid their Barrett Law assessments and those who had not was “rationally related to its legitimate inter­ ests in reducing its administrative costs, providing relief for property owners experiencing financial hardship, establishing a clear transition from [the] Barrett Law to STEP, and preserving its limited resources.” App. to Pet. for Cert. 19a. We granted certiorari to consider the equal protection question. And we now affirm the Indiana Su­ preme Court. 6 ARMOUR v. INDIANAPOLIS Opinion of the Court II A As long as the City’s distinction has a rational basis, that distinction does not violate the Equal Protection Clause. This Court has long held that “a classification neither involving fundamental rights nor proceeding along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship between the dis- parity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 319–320 (1993); cf. Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 150, 155, 165–166 (1897). We have made clear in analogous contexts that, where “ordinary commercial transactions” are at issue, ra- tional basis review requires deference to reasonable under­ lying legislative judgments. United States v. Carolene Products Co., 304 U.S. 144, 152 (1938) (due process); see also New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (equal protection). And we have repeatedly pointed out that “[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes.” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 547 (1983); see also Fitzgerald v. Racing Assn. of Central Iowa, 539 U.S. 103, 107–108 (2003); Nordlinger v. Hahn, 505 U.S. 1, 11 (1992); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359 (1973); Madden v. Kentucky, 309 U.S. 83, 87–88 (1940); Citizens’ Telephone Co. of Grand Rapids v. Fuller, 229 U.S. 322, 329 (1913). Indianapolis’ classification involves neither a “funda­ mental right” nor a “suspect” classification. Its subject matter is local, economic, social, and commercial. It is a tax classification. And no one here claims that Indianapo­ lis has discriminated against out-of-state commerce or new residents. Cf. Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985); Williams v. Vermont, 472 U.S. 14 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985); Cite as: 566 U. S. ____ (2012) 7 Opinion of the Court Zobel v. Williams, 457 U.S. 55 (1982). Hence, this case falls directly within the scope of our precedents holding such a law constitutionally valid if “there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger, supra, at 11 (citations omitted). And it falls within the scope of our precedents holding that there is such a plausible reason if “there is any reasonably conceivable state of facts that could pro­ vide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993); see also Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911). Moreover, analogous precedent warns us that we are not to “pronounc[e]” this classification “unconstitutional un­ less in the light of the facts made known or generally assumed it is of such a character as to preclude the as­ sumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Carolene Products Co., supra, at 152 (due process claim). Further, because the classification is presumed constitutional, the “ ‘ burden is on the one attacking the legislative arrange­ ment to negative every conceivable basis which might support it.’ ” Heller, supra, at 320 (quoting Lehnhausen, supra, at 364). B In our view, Indianapolis’ classification has a rational basis. Ordinarily, administrative considerations can jus- tify a tax-related distinction. See, e.g., Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 511–512 (1937) (tax exemption for businesses with fewer than eight em­ ployees rational in light of the “[a]dministrative conven­ 8 ARMOUR v. INDIANAPOLIS Opinion of the Court ience and expense” involved); see also Lehnhausen, supra, at 365 (comparing administrative cost of taxing corpora­ tions versus individuals); Madden, supra, at 90 (compar­ ing administrative cost of taxing deposits in local banks versus those elsewhere). And the City’s decision to stop collecting outstanding Barrett Law debts finds rational support in related administrative concerns. The City had decided to switch to the STEP system. After that change, to continue Barrett Law unpaid-debt collection could have proved complex and expensive. It would have meant maintaining an administrative system that for years to come would have had to collect debts arising out of 20-plus different construction projects built over the course of a decade, involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debt­ ors and bringing legal action. The City, for example, would have had to maintain its Barrett Law operation within the City Controller’s Office, keep files on old, small, installment-plan debts, and (a City official says) possibly spend hundreds of thousands of dollars keeping computer­ ized debt-tracking systems current. See Brief for Interna­ tional City/County Management Association et al. as Amici Curiae 13, n. 12 (citing Affidavit of Charles White ¶13, Record in Cox, Doc. No. 57–3). Unlike the collection system prior to abandonment, the City would not have added any new Barrett Law installment-plan debtors. And that fact means that it would have had to spread the fixed administrative costs of collection over an ever­ declining number of debtors, thereby continuously increas­ ing the per-debtor cost of collection. Consistent with these facts, the Director of the City’s Department of Public Works later explained that the City decided to forgive outstanding debt in part because “[t]he administrative costs to service and process remaining balances on Barrett Law accounts long past the transition Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court to the STEP program would not benefit the taxpayers” and would defeat the purpose of the transition. App. 76. The four other members of the City’s Board of Public Works have said the same. See Affidavit of Gregory Taylor ¶6, Record in Cox, Doc. No. 57–5; Affidavit of Kipper Tew ¶6, ibid. Doc. No. 57–6; Affidavit of Susan Schalk ¶6, ibid. Doc. No. 57–7; Affidavit of Roger Brown ¶6, ibid. Doc. No. 57–8. The rationality of the City’s distinction draws further support from the nature of the line-drawing choices that confronted it. To have added refunds to forgiveness would have meant adding yet further administrative costs, namely the cost of processing refunds. At the same time, to have tried to limit the City’s costs and lost revenues by limiting forgiveness (or refund) rules to Brisbane/Manning homeowners alone would have led those involved in other Barrett Law projects to have justifiably complained about unfairness. Yet to have granted refunds (as well as pro- viding forgiveness) to all those involved in all Barrett Law projects (there were more than 40 projects) or in all open projects (there were more than 20) would have involved even greater administrative burden. The City could not just “cut . . . checks,” post, at 4 (ROBERTS, C. J., dissenting), without taking funding from other programs or finding additional revenue. If, instead, the City had tried to keep the amount of revenue it lost constant (a rational goal) but spread it evenly among the apparently thousands of homeowners involved in any of the Barrett Laws projects, the result would have been yet smaller individual payments, even more likely to have been too small to justify the administrative expense. Finally, the rationality of the distinction draws support from the fact that the line that the City drew— distinguishing past payments from future obligations—is a line well known to the law. Sometimes such a line takes the form of an amnesty program, involving, say, mortgage 10 ARMOUR v. INDIANAPOLIS Opinion of the Court payments, taxes, or parking tickets. E.g., 26 U.S. C. §108(a)(1)(E) (2006 ed., Supp. IV) (federal income tax provision allowing homeowners to omit from gross income newly forgiven home mortgage debt); United States v. Martin, 523 F.3d 281, 284 (CA4 2008) (tax amnesty pro­ gram whereby State newly forgave penalties and liabili­ ties if taxpayer satisfied debt); Horn v. Chicago, 860 F.2d 700, 704, n. 9 (CA7 1988) (city parking ticket amnesty program whereby outstanding tickets could be newly set­ tled for a fraction of amount specified). This kind of line is consistent with the distinction that the law often makes between actions previously taken and those yet to come. C Petitioners’ contrary arguments are not sufficient to change our conclusion. Petitioners point out that the Indiana Supreme Court also listed a different considera­ tion, namely “financial hardship,” as one of the factors supporting rationality. App. to Pet. for Cert. 19a. They refer to the City’s resolution that said that the Barrett Law “may present financial hardships on many middle to lower income participants who most need sanitary sewer service in lieu of failing septic systems.” App. 71. And they argue that the tax distinction before us would not necessarily favor low-income homeowners. We need not consider this argument, however, for the administrative considerations we have mentioned are sufficient to show a rational basis for the City’s distinc­ tion. The Indiana Supreme Court wrote that the City’s classification was “rationally related” in part “to its legit­ imate interests in reducing its administrative costs.” App. to Pet. for Cert. 19a (emphasis added). The record of the City’s proceedings is consistent with that determination. See App. 72 (when developing transition, the City “consid­ ered the current assessments being made by participants in active Barrett Law projects”). In any event, a legisla­ Cite as: 566 U. S. ____ (2012) 11 Opinion of the Court ture need not “actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger, 505 U. S., at 15; see also Fitzgerald, 539 U. S., at 108 (similar). Rather, the “burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Madden, 309 U. S., at 88; see Heller, 509 U. S., at 320 (same); Lehnhausen, 410 U. S., at 364 (same); see also Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 530 (1959) (upholding state tax classification resting “upon a state of facts that reasonably can be con­ ceived” as creating a rational distinction). Petitioners have not “negative[d]” the Indiana Supreme Court’s first listed justification, namely the administrative concerns we have discussed. Petitioners go on to propose various other forgiveness systems that would have included refunds for at least some of those who had already paid in full. They argue that those systems are superior to the system that the City chose. We have discussed those, and other possible, systems earlier. Supra, at 8–9. Each has advantages and disadvantages. But even if petitioners have found a supe­ rior system, the Constitution does not require the City to draw the perfect line nor even to draw a line superior to some other line it might have drawn. It requires only that the line actually drawn be a rational line. And for the reasons we have set forth in Part II–B, supra, we believe that the line the City drew here is rational. Petitioners further argue that administrative considera­ tions alone should not justify a tax distinction, lest a city arbitrarily allocate taxes among a few citizens while for­ giving many similarly situated citizens on the ground that it is cheaper and easier to collect taxes from a few people than from many. Brief for Petitioners 45. Petitioners are right that administrative considerations could not justify such an unfair system. But that is not because adminis­ trative considerations can never justify tax differences 12 ARMOUR v. INDIANAPOLIS Opinion of the Court (any more than they can always do so). The question is whether reducing those expenses, in the particular cir­ cumstances, provides a rational basis justifying the tax difference in question. In this case, “in the light of the facts made known or generally assumed,” Carolene Products Co., 304 U. S., at 152, it is reasonable to believe that to graft a refund sys­ tem onto the City’s forgiveness decision could have (for example) imposed an administrative burden of both col­ lecting and paying out small sums (say, $25 per month) for years. As we have said, supra, at 7–9, it is rational for the City to draw a line that avoids that burden. Petitioners, who are the ones “attacking the legislative arrangement,” have the burden of showing that the circumstances are otherwise, i.e., that the administrative burden is too in­ substantial to justify the classification. That they have not done. Finally, petitioners point to precedent that in their view makes it more difficult than we have said for the City to show a “rational basis.” With but one exception, however, the cases to which they refer involve discrimination based on residence or length of residence. E.g., Hooper v. Berna- lillo County Assessor, 472 U.S. 612 (state tax preference distinguishing between long-term and short-term resident veterans); Williams v. Vermont, 472 U.S. 14 (state use tax that burdened out-of-state car buyers who moved in-state); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (state law that taxed out-of-state insurance companies at a higher rate than in-state companies); Zobel v. Williams, 457 U.S. 55 (state dividend distribution system that favored long-term residents). But those circumstances are not present here. The exception consists of Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336 (1989). The Court there took into account a state constitution and related laws that required equal valuation of equally Cite as: 566 U. S. ____ (2012) 13 Opinion of the Court valuable property. Id., at 345. It considered the constitu­ tionality of a county tax assessor’s practice (over a period of many years) of determining property values as of the time of the property’s last sale; that practice meant highly unequal valuations for two identical properties that were sold years or decades apart. Id., at 341. The Court first found that the assessor’s practice was not rationally re­ lated to the county’s avowed purpose of assessing proper­ ties equally at true current value because of the intentional systemic discrepancies the practice created. Id., at 343– 344. The Court then noted that, in light of the state con­ stitution and related laws requiring equal valuation, there could be no other rational basis for the practice. Id., at 344–345. Therefore, the Court held, the assessor’s dis­ criminatory policy violated the Federal Constitution’s insistence upon “equal protection of the law.” Id., at 346. Petitioners argue that the City’s refusal to add refunds to its forgiveness decision is similar, for it constitutes a refusal to apply “equally” an Indiana state law that says that the costs of a Barrett Law project shall be equally “apportioned.” Ind. Code §36–9–39–15(b)(3). In other words, petitioners say that even if the City’s decision might otherwise be related to a rational purpose, state law (as in Allegheny) makes this the rare case where the facts preclude any rational basis for the City’s decision other than to comply with the state mandate of equality. Allegheny, however, involved a clear state law require­ ment clearly and dramatically violated. Indeed, we have described Allegheny as “the rare case where the facts precluded” any alternative reading of state law and thus any alternative rational basis. Nordlinger, 505 U. S., at 16. Here, the City followed state law by apportioning the cost of its Barrett Law projects equally. State law says nothing about forgiveness, how to design a forgiveness program, or whether or when rational distinctions in doing so are permitted. To adopt petitioners’ view would risk 14 ARMOUR v. INDIANAPOLIS Opinion of the Court transforming ordinary violations of ordinary state tax law into violations of the Federal Constitution. * * * For these reasons, we conclude that the City has not violated the Federal Equal Protection Clause. And the Indiana Supreme Court’s similar determination is Affirmed. Cite as: 566 U. S. ____ (2012) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–161 _________________ CHRISTINE ARMOUR, ET AL., PETITIONERS v. CITY OF INDIANAPOLIS, INDIANA, ET AL.

For many years, an Indiana statute, the “arrett Law,” authorized Indiana’s cities to impose upon benefited lot owners the cost of sewer improvement projects. The Law also permitted those lot owners to pay either immediately in the form of a lump sum or over time in installments. In 2005, the city of Indianapolis (City) adopted a new as- sessment and payment method, the “STEP” plan, and it forgave any arrett Law installments that lot owners had not yet paid. A group of lot owners who had already paid their entire arrett Law assessment in a lump sum believe that the City should have provided them with equivalent refunds. And we must decide whether the City’s refusal to do so un- constitutionally discriminates against them in violation of the Equal Protection Clause, Amdt. 14, We hold that the City had a rational basis for distinguishing be­ tween those lot owners who had already paid their share of project costs and those who had not. And we conclude that there is no equal protection violation. 2 ARMOUR v. INDIANAPOLIS Opinion of the Court I A eginning in 1889 Indiana’s arrett Law permitted cities to pay for public improvements, such as sewage proj- ects, by “apportion[ing]” the costs of a project “equally among all abutting lands or lots.” –9–39– 15(b)(3) ; see Town Council of New Harmony v. Parker, (proj­ ect’s beneficiaries pay its costs). When a city built a ar­ rett Law project, the city’s public works board would create an initial lot-owner assessment by “dividing the estimated total cost of the sewage works by the total num­ ber of lots.” It might then adjust an individual assessment downward if the lot would benefit less than would others. Upon completion of the project, the board would issue a final lot-by-lot assessment. The Law permitted lot owners to pay the assessment either in a single lump sum or over time in installment payments (with interest). The City would collect install­ ment payments “in the same manner as other taxes.” The Law authorized 10-, 20-, or 30-year installment plans. Until fully paid, an assessment would constitute a lien against the property, permitting the city to initiate foreclosure proceedings in case of a default. –22. For several decades, Indianapolis used the arrett Law system to fund sewer projects. See, e.g., (in banc). ut in 2005, the City adopted a new system, called the Septic Tank Elimination Program (STEP), which fi- nanced projects in part through bonds, thereby lowering in­ dividual lot owners’ sewer-connection costs. y that time, the City had constructed more than 40 arrett Law projects. App. to Pet. for Cert. 5a. We are told that installment-paying lot owners still owed money in respect Cite as: 566 U. S. (2012) 3 Opinion of the Court to 24 of those projects. See Reply rief for Petitioners 16– 17, n. 3 (citing City’s Response to Plaintiff ’s rief on Damages, Record in Cox v. Indianapolis, No. 1:09–cv–0435 (SD Ind., Doc. 98–1 (Exh. A)). In respect to 21 of the 24, some installment payments had not yet fallen due; in respect to the other 3, those who owed money were in default. Reply rief for Petitioners 17, n. 3. This case concerns one of the 24 still-open arrett Law projects, namely the risbane/Manning Sanitary Sewers Project. The risbane/Manning Project began in 2001. It connected about 180 homes to the City’s sewage system. Construction was completed in 2003. The Indianapolis oard of Public Works held an assessment hearing in June 2004. And in July 2004 the oard sent the 180 affected homeowners a formal notice of their payment obligations. The notice made clear that each homeowner could pay the entire assessment—$9,2 per property—in a lump sum or in installments, which would include interest at a 3.5% annual rate. Under an installment plan, payments would amount to $77.27 per month for 10 years; $38.66 per month for 20 years; or $25.77 per month for 30 years. In the event, 38 homeowners chose to pay up front; 47 chose the 10-year plan; 27 chose the 20-year plan; and 68 chose the 30-year plan. And in the first year each home­ owner paid the amount due ($9,2 upfront; $927.80 under the 10-year plan; $463.90 under the 20-year plan, or $309.27 under the 30-year plan). App. to Pet. for Cert. 48a. The next year, however, the City decided to abandon the arrett Law method of financing. It thought that the arrett Law’s lot-by-lot payments had become too burden­ some for many homeowners to pay, discouraging changes from less healthy septic tanks to healthier sewer systems. 4 ARMOUR v. INDIANAPOLIS Opinion of the Court See at 4a–5a. (For example, homes helped by the risbane/Manning Project, at a cost of more than $9,000 each, were then valued at $120,000 to $270,000. App. 67.) The City’s new STEP method of financing would charge each connecting lot owner a flat $2,500 fee and make up the difference by floating bonds eventually paid for by all lot owners citywide. See App. to Pet. for Cert. 5a, n. 5. On October 31, 2005, the City enacted an ordinance implementing its decision. In December, the City’s oard of Public Works enacted a further resolution, Resolution 101, which, as part of the transition, would “forgive all assessment amounts established pursuant to the ar­ rett Law Funding for Municipal Sewer programs due and owing from the date of November 1, 2005 forward.” App. 72 (emphasis added). In its preamble, the Resolution that the arrett Law “may present financial hardships on many middle to lower income participants who most need sanitary sewer service in lieu of failing septic systems”; it pointed out that the City was transitioning to the new STEP method of financing; and it that the STEP method was based upon a financial model that had “con­ sidered the current assessments being made by partici­ pants in active arrett Law projects” as well as future projects. at 71–72. The upshot was that those who still owed arrett Law assessments would not have to make further payments but those who had already paid their assessments would not receive refunds. This meant that homeowners who had paid the full $9,2 risbane/ Manning Project assessment in a lump sum the preced- ing year would receive no refund, while homeowners who had elected to pay the assessment in installments, and had paid a total of $309.27, $463.90, or $927.80, would be under no obligation to make further payments. In February 2006, the 38 homeowners who had paid the full risbane/Manning Project assessment asked the City for a partial refund (in an amount equal to the smallest Cite as: 566 U. S. (2012) 5 Opinion of the Court forgiven risbane/Manning installment debt, apparently $8,062). The City denied the request in part because “[r]efunding payments made in your project area, or any portion of the payments, would establish a precedent of unfair and inequitable treatment to all other property owners who have also paid arrett Law assessments and while [the November 1, 2005, cutoff date] might seem arbitrary to you, it is essential for the City to establish this date and move forward with the new funding ap­ proach.” at 50–51. C Thirty-one of the thirty-eight risbane/Manning Project lump-sum homeowners brought this lawsuit in Indiana state court seeking a refund of about $8,000 each. They claimed in relevant part that the City’s refusal to provide them with refunds at the same time that the City forgave the outstanding Project debts of other risbane/Manning homeowners violated the Federal Constitution’s Equal Pro- tection Clause, Amdt. 14, see also Rev. Stat. 42 U.S. C. The trial court granted summary judgment in their favor. The State Court of Appeals af­ firmed that judgment. ut the Indiana Supreme Court reversed. In its view, the City’s distinction between those who had already paid their arrett Law assessments and those who had not was “rationally related to its legitimate inter­ ests in reducing its administrative costs, providing relief for property owners experiencing financial hardship, establishing a clear transition from [the] arrett Law to STEP, and preserving its limited resources.” App. to Pet. for Cert. 19a. We granted certiorari to consider the equal protection question. And we now affirm the Indiana Su­ preme Court. 6 ARMOUR v. INDIANAPOLIS Opinion of the Court II A As long as the City’s distinction has a rational basis, that distinction does not violate the Equal Protection Clause. This Court has long held that “a classification neither involving fundamental rights nor proceeding along suspect lines cannot run afoul of the Equal Protection Clause if there is a rational relationship between the dis- parity of treatment and some legitimate governmental purpose.” ; cf. Gulf, C. & S. F. R. 165–166 (1897). We have made clear in analogous contexts that, where “ordinary commercial transactions” are at issue, ra- tional basis review requires deference to reasonable under­ lying legislative judgments. United ; see also New (per curiam) (equal protection). And we have repeatedly pointed out that “[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes.” ; see also v. Racing Assn. of Central Iowa, 107–108 (2003); ; 359 (1973); 87–88 (1940); Citizens’ Telephone of Grand Indianapolis’ classification involves neither a “funda­ mental right” nor a “suspect” classification. Its subject matter is local, economic, social, and commercial. It is a tax classification. And no one here claims that Indianapo­ lis has discriminated against out-of-state commerce or new residents. Cf. Hooper v. ernalillo County Assessor, 472 U.S. 612 ; ; Metropolitan Life Ins. ; Cite as: 566 U. S. (2012) 7 Opinion of the Court Hence, this case falls directly within the scope of our precedents holding such a law constitutionally valid if “there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” at (citations omitted). And it falls within the scope of our precedents holding that there is such a plausible reason if “there is any reasonably conceivable state of facts that could pro­ vide a rational basis for the classification.” ; see also (19). Moreover, analogous precedent warns us that we are not to “pronounc[e]” this classification “unconstitutional un­ less in the light of the facts made known or generally assumed it is of such a character as to preclude the as­ sumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Carolene Products at Further, because the classification is presumed constitutional, the “ ‘ burden is on the one attacking the legislative arrange­ ment to negative every conceivable basis which might support it.’ ” (quoting ). In our view, Indianapolis’ classification has a rational basis. Ordinarily, administrative considerations can jus- tify a tax-related distinction. See, e.g., Carmichael v. Southern Coal & Coke 5–512 (tax exemption for businesses with fewer than eight em­ ployees rational in light of the “[a]dministrative conven­ 8 ARMOUR v. INDIANAPOLIS Opinion of the Court ience and expense” involved); see also at 365 (comparing administrative cost of taxing corpora­ tions versus individuals); (compar­ ing administrative cost of taxing deposits in local banks versus those elsewhere). And the City’s decision to stop collecting outstanding arrett Law debts finds rational support in related administrative concerns. The City had decided to switch to the STEP system. After that change, to continue arrett Law unpaid-debt collection could have proved complex and expensive. It would have meant maintaining an administrative system that for years to come would have had to collect debts arising out of 20-plus different construction projects built over the course of a decade, involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debt­ ors and bringing legal action. The City, for example, would have had to maintain its arrett Law operation within the City Controller’s Office, keep files on old, small, installment-plan debts, and (a City official says) possibly spend hundreds of thousands of dollars keeping computer­ ized debt-tracking systems current. See rief for Interna­ tional City/County Management Association et al. as Amici Curiae 13, n. 12 (citing Affidavit of Charles White ¶13, Record in Cox, Doc. No. 57–3). Unlike the collection system prior to abandonment, the City would not have added any new arrett Law installment-plan debtors. And that fact means that it would have had to spread the fixed administrative costs of collection over an ever­ declining number of debtors, thereby continuously increas­ ing the per-debtor cost of collection. Consistent with these facts, the Director of the City’s Department of Public Works later explained that the City decided to forgive outstanding debt in part because “[t]he administrative costs to service and process remaining balances on arrett Law accounts long past the transition Cite as: 566 U. S. (2012) 9 Opinion of the Court to the STEP program would not benefit the taxpayers” and would defeat the purpose of the transition. App. 76. The four other members of the City’s oard of Public Works have the same. See Affidavit of Gregory Taylor ¶6, Record in Cox, Doc. No. 57–5; Affidavit of Kipper Tew ¶6, Doc. No. 57–6; Affidavit of Susan Schalk ¶6, Doc. No. 57–7; Affidavit of Roger rown ¶6, Doc. No. 57–8. The rationality of the City’s distinction draws further support from the nature of the line-drawing choices that confronted it. To have added refunds to forgiveness would have meant adding yet further administrative costs, namely the cost of processing refunds. At the same time, to have tried to limit the City’s costs and lost revenues by limiting forgiveness (or refund) rules to risbane/Manning homeowners alone would have led those involved in other arrett Law projects to have justifiably complained about unfairness. Yet to have granted refunds (as well as pro- viding forgiveness) to all those involved in all arrett Law projects (there were more than 40 projects) or in all open projects (there were more than 20) would have involved even greater administrative burden. The City could not just “cut checks,” post, at 4 (ROERTS, C. J., dissenting), without taking funding from other programs or finding additional revenue. If, instead, the City had tried to keep the amount of revenue it lost constant (a rational goal) but spread it evenly among the apparently thousands of homeowners involved in any of the arrett Laws projects, the result would have been yet smaller individual payments, even more likely to have been too small to justify the administrative expense. Finally, the rationality of the distinction draws support from the fact that the line that the City drew— distinguishing past payments from future obligations—is a line well known to the law. Sometimes such a line takes the form of an amnesty program, involving, say, mortgage 10 ARMOUR v. INDIANAPOLIS Opinion of the Court payments, taxes, or parking tickets. E.g., 26 U.S. C. (2006 ed., Supp. IV) (federal income tax provision allowing homeowners to omit from gross income newly forgiven home mortgage debt); United States v. Martin, (tax amnesty pro­ gram whereby State newly forgave penalties and liabili­ ties if taxpayer satisfied debt); Horn v. Chicago, 860 F.2d 700, 704, n. 9 (CA7 1988) (city parking ticket amnesty program whereby outstanding tickets could be newly set­ tled for a fraction of amount specified). This kind of line is consistent with the distinction that the law often makes between actions previously taken and those yet to come. C Petitioners’ contrary arguments are not sufficient to change our conclusion. Petitioners point out that the Indiana Supreme Court also listed a different considera­ tion, namely “financial hardship,” as one of the factors supporting rationality. App. to Pet. for Cert. 19a. They refer to the City’s resolution that that the arrett Law “may present financial hardships on many middle to lower income participants who most need sanitary sewer service in lieu of failing septic systems.” App. 71. And they argue that the tax distinction before us would not necessarily favor low-income homeowners. We need not consider this argument, however, for the administrative considerations we have mentioned are sufficient to show a rational basis for the City’s distinc­ tion. The Indiana Supreme Court wrote that the City’s classification was “rationally related” in part “to its legit­ imate interests in reducing its administrative costs.” App. to Pet. for Cert. 19a (emphasis added). The record of the City’s proceedings is consistent with that determination. See App. 72 (when developing transition, the City “consid­ ered the current assessments being made by participants in active arrett Law projects”). In any event, a legisla­ Cite as: 566 U. S. (2012) Opinion of the Court ture need not “actually articulate at any time the purpose or rationale supporting its classification.” 505 U. S., at 15; see also Rather, the “burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” ; see 509 U. S., ; 410 U. S., ; see also Allied Stores of Ohio, Inc. v. owers, 358 U.S. 522, 530 (1959) (upholding state tax classification resting “upon a state of facts that reasonably can be con­ ceived” as creating a rational distinction). Petitioners have not “negative[d]” the Indiana Supreme Court’s first listed justification, namely the administrative concerns we have discussed. Petitioners go on to propose various other forgiveness systems that would have included refunds for at least some of those who had already paid in full. They argue that those systems are superior to the system that the City chose. We have discussed those, and other possible, systems at 8–9. Each has advantages and disadvantages. ut even if petitioners have found a supe­ rior system, the Constitution does not require the City to draw the perfect line nor even to draw a line superior to some other line it might have drawn. It requires only that the line actually drawn be a rational line. And for the reasons we have set forth in Part II–, we believe that the line the City drew here is rational. Petitioners further argue that administrative considera­ tions alone should not justify a tax distinction, lest a city arbitrarily allocate taxes among a few citizens while for­ giving many similarly situated citizens on the ground that it is cheaper and easier to collect taxes from a few people than from many. rief for Petitioners 45. Petitioners are right that administrative considerations could not justify such an unfair system. ut that is not because adminis­ trative considerations can never justify tax differences 12 ARMOUR v. INDIANAPOLIS Opinion of the Court (any more than they can always do so). The question is whether reducing those expenses, in the particular cir­ cumstances, provides a rational basis justifying the tax difference in question. In this case, “in the light of the facts made known or generally assumed,” Carolene Products 304 U. S., at it is reasonable to believe that to graft a refund sys­ tem onto the City’s forgiveness decision could have (for example) imposed an administrative burden of both col­ lecting and paying out small sums (say, $25 per month) for years. As we have at 7–9, it is rational for the City to draw a line that avoids that burden. Petitioners, who are the ones “attacking the legislative arrangement,” have the burden of showing that the circumstances are otherwise, i.e., that the administrative burden is too in­ substantial to justify the classification. That they have not done. Finally, petitioners point to precedent that in their view makes it more difficult than we have for the City to show a “rational basis.” With but one exception, however, the cases to which they refer involve discrimination based on residence or length of residence. E.g., Hooper v. erna- lillo County Assessor, (state tax preference distinguishing between long-term and short-term resident veterans); (state use tax that burdened out-of-state car buyers who moved in-state); Metropolitan Life Ins. (state law that taxed out-of-state insurance companies at a higher rate than in-state companies); (state dividend distribution system that favored long-term residents). ut those circumstances are not present here. The exception consists of Allegheny Pittsburgh Coal v. Commission of Webster Cty., The Court there took into account a state constitution and related laws that required equal valuation of equally Cite as: 566 U. S. (2012) 13 Opinion of the Court valuable property. It considered the constitu­ tionality of a county tax assessor’s practice (over a period of many years) of determining property values as of the time of the property’s last sale; that practice meant highly unequal valuations for two identical properties that were sold years or decades apart. The Court first found that the assessor’s practice was not rationally re­ lated to the county’s avowed purpose of assessing proper­ ties equally at true current value because of the intentional systemic discrepancies the practice created. at 343– 344. The Court then noted that, in light of the state con­ stitution and related laws requiring equal valuation, there could be no other rational basis for the practice. at 344–345. Therefore, the Court held, the assessor’s dis­ criminatory policy violated the Federal Constitution’s insistence upon “equal protection of the law.” Petitioners argue that the City’s refusal to add refunds to its forgiveness decision is similar, for it constitutes a refusal to apply “equally” an Indiana state law that says that the costs of a arrett Law project shall be equally “apportioned.” –9–39–15(b)(3). In other words, petitioners say that even if the City’s decision might otherwise be related to a rational purpose, state law (as in Allegheny) makes this the rare case where the facts preclude any rational basis for the City’s decision other than to comply with the state mandate of equality. Allegheny, however, involved a clear state law require­ ment clearly and dramatically violated. Indeed, we have described Allegheny as “the rare case where the facts precluded” any alternative reading of state law and thus any alternative rational basis. 505 U. S., at 16. Here, the City followed state law by apportioning the cost of its arrett Law projects equally. State law says nothing about forgiveness, how to design a forgiveness program, or whether or when rational distinctions in doing so are permitted. To adopt petitioners’ view would risk 14 ARMOUR v. INDIANAPOLIS Opinion of the Court transforming ordinary violations of ordinary state tax law into violations of the Federal Constitution. * * * For these reasons, we conclude that the City has not violated the Federal Equal Protection Clause. And the Indiana Supreme Court’s similar determination is Affirmed. Cite as: 566 U. S. (2012) 1 ROERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. –161 CHRISTINE ARMOUR, ET AL., PETITIONERS v. CITY OF INDIANAPOLIS, INDIANA, ET AL.

Justice Roberts

dissenting

Armour v. Indianapolis

2012-06-04

https://www.courtlistener.com/opinion/801501/armour-v-indianapolis/

https://www.courtlistener.com/api/rest/v3/clusters/801501/

2011-062

Twenty-three years ago, we released a succinct and unanimous opinion striking down a property tax scheme in West Virginia on the ground that it clearly violated the Equal Protection Clause. Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336 (1989). In Allegheny Pittsburgh, we held that a county failed to comport with equal protection requirements when it as- sessed property taxes primarily on the basis of purchase price, with no appropriate adjustments over time. The result was that new property owners were assessed at “roughly 8 to 35 times” the rate of those who had owned their property longer. Id., at 344. We found such a “gross disparit[y]” in tax levels could not be justified in a state system that demanded that “taxation . . . be equal and uniform.” Id., at 338; W. Va. Const., Art. X, §1. The case affirmed the common-sense proposition that the Equal Protection Clause is violated by state action that deprives a citizen of even “rough equality in tax treatment,” when state law itself specifically provides that all the affected taxpayers are in the same category for tax purposes. 488 U. S., at 343; see Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946) (“The equal protection clause . . . protects the individual from state action which selects him out for 2 ARMOUR v. INDIANAPOLIS ROBERTS, C. J., dissenting discriminatory treatment by subjecting him to taxes not imposed on others of the same class”). In this case, the Brisbane/Manning Sanitary Sewers Project allowed 180 property owners to have their homes hooked up to the City of Indianapolis’s sewer system un- der the State’s Barrett Law. That law requires sewer costs to “be primarily apportioned equally among all abut- ting lands or lots.” Ind. Code §36–9–39–15(b)(3) (2011). In the case of Brisbane/Manning, the cost came to $9,278 for each property owner. Some of the property owners— petitioners here—paid the full $9,278 up front. Others elected the option of paying in installments. Shortly after hook-up, the City switched to a new financing system and decided to forgive the hook-up debts of those paying on an installment plan. The City refused, however, to refund any portion of the payments made by their identically sit- uated neighbors who had already paid the full amount due. The result was that while petitioners each paid the City $9,278 for their hook-ups, more than half their neigh- bors paid less than $500 for the same improvement—some as little as $309.27. Another quarter paid less than $1,000. Petitioners thus paid between 10 and 30 times as much for their sewer hook-ups as their neighbors. In seeking to justify this gross disparity, the City ex- plained that it was presented with three choices: First, it could have continued to collect the installment plan pay- ments of those who had not yet settled their debts under the old system. Second, it could have forgiven all those debts and given equivalent refunds to those who had made lump sum payments up front. Or third, it could have forgiven the future payments and not refunded payments that had already been made. The first two choices had the benefit of complying with state law, treating all of Indian- apolis’s citizens equally, and comporting with the Consti- tution. The City chose the third option. And what did the City believe was sufficient to justify a Cite as: 566 U. S. ____ (2012) 3 ROBERTS, C. J., dissenting system that would effectively charge petitioners 30 times more than their neighbors for the same service—when state law promised equal treatment? Two things: the desire to avoid administrative hassle and the “fiscal[] chal- leng[e]” of giving back money it wanted to keep. Brief for Respondents 35–36. I cannot agree that those reasons pass constitutional muster, even under rational basis review. The City argues that either of the other options for transitioning away from the Barrett Law would have been “immensely difficult from an administrative standpoint.” Id., at 36. The Court accepts this rationale, observing that “[o]rdinarily, administrative considerations can justify a tax-related distinction.” Ante, at 7. The cases the Court cites, however, stand only for the proposition that a legis- lature crafting a tax scheme may take administrative concerns into consideration when creating classes of tax- able entities that may be taxed differently. See, e.g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359 (1973) (a State may “draw lines that treat one class of individuals or entities differently from the others”); Mad- den v. Kentucky, 309 U.S. 83, 87 (1940) (referring to the “broad discretion as to classification possessed by a legis- lature”); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 510–511 (1937) (discussing permissible consid- erations for the legislature in establishing a tax scheme). Here, however, Indiana’s tax scheme explicitly provides that costs will “be primarily apportioned equally among all abutting lands or lots.” Ind. Code §36–9–39–15(b)(3) (emphasis added). The legislature has therefore decreed that all abutting landowners are within the same class. We have never before held that administrative burdens justify grossly disparate tax treatment of those the State has provided should be treated alike. Indeed, in Allegheny Pittsburgh the County argued that its unequal assess- ments were based on “[a]dministrative cost[ ]” concerns, to 4 ARMOUR v. INDIANAPOLIS ROBERTS, C. J., dissenting no avail. Brief for Respondent, O. T. 1988, No. 87–1303, p. 22. The reason we have rejected this argument is obvi- ous: The Equal Protection Clause does not provide that no State shall “deny to any person within its jurisdiction the equal protection of the laws, unless it’s too much of a bother.” Even if the Court were inclined to decide that adminis- trative burdens alone may sometimes justify grossly dis- parate treatment of members of the same class, this would hardly be the case to do that. The City claims it cannot issue refunds because the process would be too difficult, requiring that it pore over records of old projects to deter- mine which homeowners had overpaid and by how much. Brief for Respondents 36. But holding that the City must refund petitioners’ overpayments would not mean that it has to refund overpayments in every Barrett Law project. The Equal Protection Clause is concerned with “gross” dis- parity in taxing. Because the Brisbane/Manning project was initiated shortly before the Barrett Law transition, the disparity between what petitioners paid in compar- ison to their installment plan neighbors was dramatic. Not so with respect to, for example, a project initiated 10 years earlier, because for those projects even installment plan payers will have largely satisfied their debts, result- ing in far less significant disparities. To the extent a ruling for petitioners would require issuing refunds to others who overpaid under the Barrett Law, I think the city workers are up to the task. The City has in fact already produced records showing exactly how much each lump-sum payer overpaid in every active Bar- rett Law Project—to the penny. Record in Cox v. Indian- apolis, No. 1:09–cv–0435 (SD Ind.), Doc. 98–1 (Exh. A). What the city employees would need to do, therefore, is cut the checks and mail them out. Certainly the job need not involve the complicated pro- cedure the Court describes in an attempt to bolster its Cite as: 566 U. S. ____ (2012) 5 ROBERTS, C. J., dissenting administrative convenience argument. Under the Court’s view the City would apparently continue to accept month- ly payments from installment plan homeowners in order to gradually repay the money it owes to those who paid in a lump sum. Ante, at 9, 12. But this approach was never dreamt of by the City itself. See Brief for Respondents 18 (setting out City’s “three basic [transition] options,” none of which involved the Court’s gradual refund scheme). The Court suggests that the City’s administrative con- venience argument is one with which the law is comfort- able. The Court compares the City’s decision to forgive the installment balances to the sort of parking ticket and mortgage payment amnesty programs that currently abound. Ante, at 9. This analogy is misplaced: Amnesty programs are designed to entice those who are unlikely ever to pay their debts to come forward and pay at least a portion of what they owe. It is not administrative conven- ience alone that justifies such schemes. In a sense, these schemes help remedy payment inequities by prompting those who would pay nothing to pay at least some of their fair share. The same cannot be said of the City’s system. The Court is willing to concede that “administrative considerations could not justify . . . an unfair system” in which “a city arbitrarily allocate[s] taxes among a few citizens while forgiving many others on the ground that it is cheaper and easier to collect taxes from a few people than from many.” Ante, at 11. Cold comfort, that. If the quoted language does not accurately describe this case, I am not sure what it would reach. The Court wisely does not embrace the City’s alterna- tive argument that the unequal tax burden is justified because “it would have been fiscally challenging to issue refunds.” Brief for Respondents 35. “Fiscally challenging” gives euphemism a bad name. The City’s claim that it has already spent petitioners’ money is hardly worth a re- sponse, and the City recognizes as much when it admits it 6 ARMOUR v. INDIANAPOLIS ROBERTS, C. J., dissenting could provide refunds to petitioners by “arrang[ing] for payments from non-Barrett Law sources.” Id., at 36. One cannot evade returning money to its rightful owner by the simple expedient of spending it. The “fiscal challenge” justification seems particularly inappropriate in this case, as the City—with an annual budget of approximately $900 million—admits that the cost of refunding all of petition- ers’ money would be approximately $300,000. Adopted 2012 Budget for the Consolidated City of Indianapolis, Marion County (Oct. 17, 2011), p. 7; Tr. of Oral Arg. 17, 58. Equally unconvincing is the Court’s attempt to distin- guish Allegheny Pittsburgh. The Court claims that case was different because it involved “a clear state law re- quirement clearly and dramatically violated.” Ante, at 14. Nothing less is at stake here. Indiana law requires that the costs of sewer projects be “apportioned equally among all abutting lands.” Ind. Code §36–9–39–15(b)(3). The City has instead apportioned the costs of the Brisbane/ Manning project such that petitioners paid between 10 and 30 times as much as their neighbors. Worse still, it has done so in order to avoid administrative hassle and save a bit of money. To paraphrase A Man for All Sea- sons: “It profits a city nothing to give up treating its citi- zens equally for the whole world . . . but for $300,000?” See R. Bolt, A Man for All Seasons, act II, p. 158 (1st Vintage Int’l ed. 1990). Our precedents do not ask for much from government in this area—only “rough equality in tax treatment.” Alle- gheny Pittsburgh, 488 U. S., at 343. The Court reminds us that Allegheny Pittsburgh is a “rare case.” Ante, at 14. It is and should be; we give great leeway to taxing authori- ties in this area, for good and sufficient reasons. But every generation or so a case comes along when this Court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context. Allegheny Cite as: 566 U. S. ____ (2012) 7 ROBERTS, C. J., dissenting Pittsburgh was such a case; so is this one. Indiana law promised neighboring homeowners that they would be treated equally when it came to paying for sewer hook- ups. The City then ended up charging some homeowners 30 times what it charged their neighbors for the same hook-ups. The equal protection violation is plain. I would accordingly reverse the decision of the Indiana Supreme Court, and respectfully dissent from the Court’s decision to do otherwise

Twenty-three years ago, we released a succinct and unanimous opinion striking down a property tax scheme in West Virginia on the ground that it clearly violated the Equal Protection Clause. Allegheny Coal Co. v. Commission of Webster Cty., In Allegheny we held that a county failed to comport with equal protection requirements when it as- sessed property taxes primarily on the basis of purchase price, with no appropriate adjustments over time. The result was that new property owners were assessed at “roughly 8 to 35 times” the rate of those who had owned their property longer. We found such a “gross disparit[y]” in tax levels could not be justified in a state system that demanded that “taxation be equal and uniform.” ; W. Va. Const., Art. X, The case affirmed the common-sense proposition that the Equal Protection Clause is violated by state action that deprives a citizen of even “rough equality in tax treatment,” when state law itself specifically provides that all the affected taxpayers are in the same category for tax purposes. 488 U. S., at 343; see 623 (1946) (“The equal protection clause protects the individual from state action which selects him out for 2 ARMOUR v. INDIANAPOLIS ROBERTS, C. J., dissenting discriminatory treatment by subjecting him to taxes not imposed on others of the same class”). In this case, the Brisbane/Manning Sanitary Sewers Project allowed 180 property owners to have their homes hooked up to the City of Indianapolis’s sewer system un- der the State’s Barrett Law. That law requires sewer costs to “be primarily apportioned equally among all abut- ting lands or lots.” –9–39–15(b)(3) (2011). In the case of Brisbane/Manning, the cost came to $9,278 for each property owner. Some of the property owners— petitioners here—paid the full $9,278 up front. Others elected the option of paying in installments. Shortly after hook-up, the City switched to a new financing system and decided to forgive the hook-up debts of those paying on an installment plan. The City refused, however, to refund any portion of the payments made by their identically sit- uated neighbors who had already paid the full amount due. The result was that while petitioners each paid the City $9,278 for their hook-ups, more than half their neigh- bors paid less than $500 for the same improvement—some as little as $309.27. Another quarter paid less than $1,000. Petitioners thus paid between 10 and 30 times as much for their sewer hook-ups as their neighbors. In seeking to justify this gross disparity, the City ex- plained that it was presented with three choices: First, it could have continued to collect the installment plan pay- ments of those who had not yet settled their debts under the old system. Second, it could have forgiven all those debts and given equivalent refunds to those who had made lump sum payments up front. Or third, it could have forgiven the future payments and not refunded payments that had already been made. The first two choices had the benefit of complying with state law, treating all of Indian- apolis’s citizens equally, and comporting with the Consti- tution. The City chose the third option. And what did the City believe was sufficient to justify a Cite as: 566 U. S. (2012) 3 ROBERTS, C. J., dissenting system that would effectively charge petitioners 30 times more than their neighbors for the same service—when state law promised equal treatment? Two things: the desire to avoid administrative hassle and the “fiscal[] chal- leng[e]” of giving back money it wanted to keep. Brief for Respondents 35–36. I cannot agree that those reasons pass constitutional muster, even under rational basis review. The City argues that either of the other options for transitioning away from the Barrett Law would have been “immensely difficult from an administrative standpoint.” The Court accepts this rationale, observing that “[o]rdinarily, administrative considerations can justify a tax-related distinction.” Ante, at 7. The cases the Court cites, however, stand only for the proposition that a legis- lature crafting a tax scheme may take administrative concerns into consideration when creating classes of tax- able entities that may be taxed differently. See, e.g., 359 (1973) (a State may “draw lines that treat one class of individuals or entities differently from the others”); Mad- (referring to the “broad discretion as to classification possessed by a legis- lature”); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 510–511 (1937) (discussing permissible consid- erations for the legislature in establishing a tax scheme). Here, however, Indiana’s tax scheme explicitly provides that costs will “be primarily apportioned equally among all abutting lands or lots.” –9–39–15(b)(3) (emphasis added). The legislature has therefore decreed that all abutting landowners are within the same class. We have never before held that administrative burdens justify grossly disparate tax treatment of those the State has provided should be treated alike. Indeed, in Allegheny the County argued that its unequal assess- ments were based on “[a]dministrative cost[ ]” concerns, to 4 ARMOUR v. INDIANAPOLIS ROBERTS, C. J., dissenting no avail. Brief for Respondent, O. T. 1988, No. –1303, p. 22. The reason we have rejected this argument is obvi- ous: The Equal Protection Clause does not provide that no State shall “deny to any person within its jurisdiction the equal protection of the laws, unless it’s too much of a bother.” Even if the Court were inclined to decide that adminis- trative burdens alone may sometimes justify grossly dis- parate treatment of members of the same class, this would hardly be the case to do that. The City claims it cannot issue refunds because the process would be too difficult, requiring that it pore over records of old projects to deter- mine which homeowners had overpaid and by how much. Brief for Respondents 36. But holding that the City must refund petitioners’ overpayments would not mean that it has to refund overpayments in every Barrett Law project. The Equal Protection Clause is concerned with “gross” dis- parity in taxing. Because the Brisbane/Manning project was initiated shortly before the Barrett Law transition, the disparity between what petitioners paid in compar- ison to their installment plan neighbors was dramatic. Not so with respect to, for example, a project initiated 10 years earlier, because for those projects even installment plan payers will have largely satisfied their debts, result- ing in far less significant disparities. To the extent a ruling for petitioners would require issuing refunds to others who overpaid under the Barrett Law, I think the city workers are up to the task. The City has in fact already produced records showing exactly how much each lump-sum payer overpaid in every active Bar- rett Law Project—to the penny. Record in Cox v. Indian- apolis, No. 1:09–cv–0435 (SD Ind.), Doc. 98–1 (Exh. A). What the city employees would need to do, therefore, is cut the checks and mail them out. Certainly the job need not involve the complicated pro- cedure the Court describes in an attempt to bolster its Cite as: 566 U. S. (2012) 5 ROBERTS, C. J., dissenting administrative convenience argument. Under the Court’s view the City would apparently continue to accept month- ly payments from installment plan homeowners in order to gradually repay the money it owes to those who paid in a lump sum. Ante, at 9, 12. But this approach was never dreamt of by the City itself. See Brief for Respondents 18 (setting out City’s “three basic [transition] options,” none of which involved the Court’s gradual refund scheme). The Court suggests that the City’s administrative con- venience argument is one with which the law is comfort- able. The Court compares the City’s decision to forgive the installment balances to the sort of parking ticket and mortgage payment amnesty programs that currently abound. Ante, at 9. This analogy is misplaced: Amnesty programs are designed to entice those who are unlikely ever to pay their debts to come forward and pay at least a portion of what they owe. It is not administrative conven- ience alone that justifies such schemes. In a sense, these schemes help remedy payment inequities by prompting those who would pay nothing to pay at least some of their fair share. The same cannot be said of the City’s system. The Court is willing to concede that “administrative considerations could not justify an unfair system” in which “a city arbitrarily allocate[s] taxes among a few citizens while forgiving many others on the ground that it is cheaper and easier to collect taxes from a few people than from many.” Ante, at 11. Cold comfort, that. If the quoted language does not accurately describe this case, I am not sure what it would reach. The Court wisely does not embrace the City’s alterna- tive argument that the unequal tax burden is justified because “it would have been fiscally challenging to issue refunds.” Brief for Respondents 35. “Fiscally challenging” gives euphemism a bad name. The City’s claim that it has already spent petitioners’ money is hardly worth a re- sponse, and the City recognizes as much when it admits it 6 ARMOUR v. INDIANAPOLIS ROBERTS, C. J., dissenting could provide refunds to petitioners by “arrang[ing] for payments from non-Barrett Law sources.” One cannot evade returning money to its rightful owner by the simple expedient of spending it. The “fiscal challenge” justification seems particularly inappropriate in this case, as the City—with an annual budget of approximately $900 million—admits that the cost of refunding all of petition- ers’ money would be approximately $300,000. Adopted 2012 Budget for the Consolidated City of Indianapolis, Marion County (Oct. 17, 2011), p. 7; Tr. of Oral Arg. 17, 58. Equally unconvincing is the Court’s attempt to distin- guish Allegheny The Court claims that case was different because it involved “a clear state law re- quirement clearly and dramatically violated.” Ante, at 14. Nothing less is at stake here. Indiana law requires that the costs of sewer projects be “apportioned equally among all abutting lands.” –9–39–15(b)(3). The City has instead apportioned the costs of the Brisbane/ Manning project such that petitioners paid between 10 and 30 times as much as their neighbors. Worse still, it has done so in order to avoid administrative hassle and save a bit of money. To paraphrase A Man for All Sea- sons: “It profits a city nothing to give up treating its citi- zens equally for the whole world but for $300,000?” See R. Bolt, A Man for All Seasons, act II, p. 158 (1st Vintage Int’l ed. 1990). Our precedents do not ask for much from government in this area—only “rough equality in tax treatment.” Alle- gheny The Court reminds us that Allegheny is a “rare case.” Ante, at 14. It is and should be; we give great leeway to taxing authori- ties in this area, for good and sufficient reasons. But every generation or so a case comes along when this Court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context. Allegheny Cite as: 566 U. S. (2012) 7 ROBERTS, C. J., dissenting was such a case; so is this one. Indiana law promised neighboring homeowners that they would be treated equally when it came to paying for sewer hook- ups. The City then ended up charging some homeowners 30 times what it charged their neighbors for the same hook-ups. The equal protection violation is plain. I would accordingly reverse the decision of the Indiana Supreme Court, and respectfully dissent from the Court’s decision to do otherwise

per_curiam

per_curiam

Howell v. Mississippi

2005-01-24

https://www.courtlistener.com/opinion/137744/howell-v-mississippi/

https://www.courtlistener.com/api/rest/v3/clusters/137744/

2004-019

Petitioner Marlon Howell contends that the Mississippi courts violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by refusing to require a jury instruction about a lesser included offense in his capital case. He did not, however, raise this claim in the Supreme Court of Mississippi, which unsurprisingly did not address it. As a result, we dismiss the writ of certiorari as improvidently granted. Petitioner was convicted and sentenced to death for killing Hugh David Pernell. Shortly after 5 a.m. on May 15, 2000, Pernell was delivering newspapers from his car when the occupants of another car motioned for him to stop. The evidence at trial indicated that, when both cars had pulled over, petitioner got out of the trailing car and approached the driver's side of Pernell's car. After a brief conversation and perhaps some kind of scuffle, petitioner pulled out a pistol, shot Pernell through the heart, got back in the other car, and fled the scene. See 860 So. 2d 704, 712-715, 738-739 (Miss. 2003). At trial, petitioner argued both that he was in another city at the time of the killing and that the evidence was insufficient to prove that Pernell was killed during an attempted robbery (which would deprive the State of an element of capital murder). As part of his nonalibi defense, petitioner sought to supplement the State's proposed jury instruction on capital murder with instructions on manslaughter and simple murder. The trial court refused the additional instructions. The jury found petitioner guilty of capital murder and separately concluded that he should be sentenced to death. On appeal to the State Supreme Court, one of petitioner's 28 claims of error was the trial court's failure "to give the defendant an instruction on the offense of simple murder or manslaughter." App. 39. In that argument, petitioner cited three cases from the State Supreme Court about *442 lesser-included-offense instructions, and the only opinion whose original language he quoted was a noncapital case. Ibid. (quoting, with modifications, Conner v. State, 632 So. 2d 1239, 1254 (Miss. 1993) (a capital case), in turn quoting McGowan v. State, 541 So. 2d 1027, 1028 (Miss. 1989) (a noncapital case), in turn quoting Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985) (a noncapital case)). Petitioner argued that, because the jury "could have found and returned the lesser included offense of simple murder or manslaughter," the failure to give instructions on those offenses was "error" that left the jury no "choice but either to turn [him] loose or convict him of [c]apital [m]urder." App. 40. In the course of affirming petitioner's conviction and death sentence, the State Supreme Court found that "[t]he facts of this case clearly do not support or warrant" the instruction for manslaughter or simple murder. 860 So. 2d, at 744. The court cited and quoted a prior noncapital decision, which construed a state statute and concluded that an instruction should be refused if it would cause the jury to "`ignore the primary charge'" or "`if the evidence does not justify submission of a lesser-included offense.'" Ibid. (quoting Presley v. State, 321 So. 2d 309, 310-311 (Miss. 1975)). The court also cited Grace v. State, 375 So. 2d 419 (Miss. 1979), an aggravated-assault case rejecting an instruction for simple assault. Petitioner sought certiorari from this Court, arguing that his death sentence is unconstitutional under that rule of our capital jurisprudence set forth in Beck v. Alabama, 447 U.S. 625, 638 (1980) ("[I]f the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the State] is constitutionally prohibited from withdrawing that option from the jury in a capital case"). See Pet. for Cert. 5. We granted certiorari, but asked the parties to address the following additional question: "`Was petitioner's federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 U.S. C. § 1257?'" 542 U.S. 936 (2004). Our answer to that *443 question prevents us from reaching petitioner's constitutional claim. Congress has given this Court the power to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had ... where any ... right ... is specially set up or claimed under the Constitution or the treaties or statutes of ... the United States." 28 U.S. C. § 1257(a) (emphasis added). Under that statute and its predecessors, this Court has almost unfailingly refused to consider any federal-law challenge to a state-court decision unless the federal claim "was either addressed by or properly presented to the state court that rendered the decision we have been asked to review." Adams v. Robertson, 520 U.S. 83, 86 (1997) (per curiam); see also Illinois v. Gates, 462 U.S. 213, 218 (1983) (tracing this principle back to Crowell v. Randell, 10 Pet. 368, 392 (1836), and Owings v. Norwood's Lessee, 5 Cranch 344 (1809)). Petitioner's brief in the State Supreme Court did not properly present his claim as one arising under federal law.[1] In the relevant argument, he did not cite the Constitution or even any cases directly construing it, much less any of this Court's cases. Instead, he argues that he presented his federal claim by citing Harveston v. State, 493 So. 2d 365 (Miss. 1986), which cited (among other cases) Fairchild v. State, 459 So. 2d 793 (Miss. 1984), which in turn cited Beck, but only by way of acknowledging that Mississippi's general rule requiring lesser-included-offense instructions "takes on constitutional proportions" in capital cases. 459 So. 2d, at 800. Assuming it constituted adequate briefing of the federal question under state-law standards, petitioner's daisy chain — which depends upon a case that was cited by one of the cases that was cited by one of the cases that petitioner cited — is too lengthy to meet this Court's standards for *444 proper presentation of a federal claim.[2] As we recently explained in a slightly different context, "[a] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief ... by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim `federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (2004). In the context of § 1257, the same steps toward clarity are just as easy to take and are generally necessary to establish that a federal question was properly presented to a state court. Petitioner did none of these things. Petitioner also contends that he raised his federal claim by implication because the state-law rule on which he relied was "identical," Tr. of Oral Arg. 17, or "virtually identical," Brief for Petitioner 17-18, to the constitutional rule articulated in Beck. Assuming, without deciding, that identical standards might overcome a petitioner's failure to identify his claim as federal, Mississippi's rule regarding lesser-included-offense instructions is not identical to Beck — or at least not identical to the Mississippi Supreme Court's interpretation of Beck. Mississippi's rule applies even when the jury is not choosing only between acquittal and death. The Mississippi Supreme *445 Court's interpretation of Beck, on the other hand, holds that case inapplicable where the jury has the additional option of life imprisonment, see Jackson v. State, 684 So. 2d 1213, 1228 (1996) — a conclusion that finds some support in our cases, see Hopkins v. Reeves, 524 U.S. 88, 98 (1998) ("In Beck, the death penalty was automatically tied to conviction, and Beck's jury was told that if it convicted the defendant of the charged offense, it was required to impose the death penalty"); Schad v. Arizona, 501 U.S. 624, 646 (1991) ("Our fundamental concern in Beck was that a jury ... might ... vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all"). Moreover, unlike Beck, see 447 U.S., at 638, n. 14, Mississippi's rule on lesser-included-offense instructions applies in noncapital cases (as shown by the cases petitioner did cite). Thus, one opinion of the Mississippi Supreme Court appears to have treated a claim under Beck as distinct from one arising under the Mississippi rule. See Goodin v. State, 787 So. 2d 639, 656 (2001) ("Having found no [federal] constitutional flaws in the jury instruction given, we must now determine whether our practice entitles Goodin to a manslaughter instruction. We have held that there must be some evidentiary support to grant an instruction for manslaughter"). Petitioner suggests that we need not treat his failure to present his federal claim in state court as jurisdictional. Reply Brief for Petitioner 4, and n. 1. Notwithstanding the long line of cases clearly stating that the presentation requirement is jurisdictional, see, e.g., Exxon Corp. v. Eagerton, 462 U.S. 176, 181, n. 3 (1983); Cardinale v. Louisiana, 394 U.S. 437, 438-439 (1969) (citing cases), a handful of exceptions (discussed in Gates, 462 U. S., at 219) have previously led us to conclude that this is "an unsettled question." Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 79 (1988). As in prior cases, however, we need not decide today "whether our requirement that a federal claim be addressed or properly presented in state court is jurisdictional *446 or prudential, because even treating the rule as purely prudential, the circumstances here justify no exception." Adams, 520 U. S., at 90 (citations omitted); accord, Yee v. Escondido, 503 U.S. 519, 533 (1992); Bankers Life, supra, at 79; Heath v. Alabama, 474 U.S. 82, 87 (1985); Gates, supra, at 222.[3] Accordingly, we dismiss the writ of certiorari as improvidently granted. It is so ordered.

Petitioner Marlon Howell contends that the Mississippi courts violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by refusing to require a jury instruction about a lesser included offense in his capital case. He did not, however, raise this claim in the Supreme Court of Mississippi, which unsurprisingly did not address it. As a result, we dismiss the writ of certiorari as improvidently granted. Petitioner was convicted and sentenced to death for killing Hugh David Pernell. Shortly after 5 a.m. on May 15, 2000, Pernell was delivering newspapers from his car when the occupants of another car motioned for him to stop. The evidence at trial indicated that, when both cars had pulled over, petitioner got out of the trailing car and approached the driver's side of Pernell's car. After a brief conversation and perhaps some kind of scuffle, petitioner pulled out a pistol, shot Pernell through the heart, got back in the other car, and fled the scene. See At trial, petitioner argued both that he was in another city at the time of the killing and that the evidence was insufficient to prove that Pernell was killed during an attempted robbery (which would deprive the State of an element of capital murder). As part of his nonalibi defense, petitioner sought to supplement the State's proposed jury instruction on capital murder with instructions on manslaughter and simple murder. The trial court refused the additional instructions. The jury found petitioner guilty of capital murder and separately concluded that he should be sentenced to death. On appeal to the State Supreme Court, one of petitioner's 28 claims of error was the trial court's failure "to give the defendant an instruction on the offense of simple murder or manslaughter." App. 39. In that argument, petitioner cited three cases from the State Supreme Court about *442 lesser-included-offense instructions, and the only opinion whose original language he quoted was a noncapital case. in turn quoting in turn quoting ). Petitioner argued that, because the jury "could have found and returned the lesser included offense of simple murder or manslaughter," the failure to give instructions on those offenses was "error" that left the jury no "choice but either to turn [him] loose or convict him of [c]apital [m]urder." App. 40. In the course of affirming petitioner's conviction and death sentence, the State Supreme Court found that "[t]he facts of this case clearly do not support or warrant" the instruction for manslaughter or simple murder. The court cited and quoted a prior noncapital decision, which construed a state statute and concluded that an instruction should be refused if it would cause the jury to "`ignore the primary charge'" or "`if the evidence does not justify submission of a lesser-included offense.'" ). The court also cited an aggravated-assault case rejecting an instruction for simple assault. Petitioner sought certiorari from this Court, arguing that his death sentence is unconstitutional under that rule of our capital jurisprudence set forth in See Pet. for Cert. 5. We granted certiorari, but asked the parties to address the following additional question: "`Was petitioner's federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 U.S. C. 1257?'" Our answer to that *443 question prevents us from reaching petitioner's constitutional claim. Congress has given this Court the power to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had where any right is specially set up or claimed under the Constitution or the treaties or statutes of the United States." 28 U.S. C. 1257(a) (emphasis added). Under that statute and its predecessors, this Court has almost unfailingly refused to consider any federal-law challenge to a state-court decision unless the federal claim "was either addressed by or properly presented to the state court that rendered the decision we have been asked to review." ; see also Petitioner's brief in the State Supreme Court did not properly present his claim as one arising under federal law.[1] In the relevant argument, he did not cite the Constitution or even any cases directly construing it, much less any of this Court's Instead, he argues that he presented his federal claim by citing (Miss. 19), which cited (among other cases) which in turn cited Beck, but only by way of acknowledging that Mississippi's general rule requiring lesser-included-offense instructions "takes on constitutional proportions" in capital Assuming it constituted adequate briefing of the federal question under state-law standards, petitioner's daisy chain — which depends upon a case that was cited by one of the cases that was cited by one of the cases that petitioner cited — is too lengthy to meet this Court's standards for *444 proper presentation of a federal claim.[2] As we recently explained in a slightly different context, "[a] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim `federal.'" In the context of 1257, the same steps toward clarity are just as easy to take and are generally necessary to establish that a federal question was properly presented to a state court. Petitioner did none of these things. Petitioner also contends that he raised his federal claim by implication because the state-law rule on which he relied was "identical," Tr. of Oral Arg. 17, or "virtually identical," Brief for Petitioner 17-18, to the constitutional rule articulated in Beck. Assuming, without deciding, that identical standards might overcome a petitioner's failure to identify his claim as federal, Mississippi's rule regarding lesser-included-offense instructions is not identical to Beck — or at least not identical to the Mississippi Supreme Court's interpretation of Beck. Mississippi's rule applies even when the jury is not choosing only between acquittal and death. The Mississippi Supreme *445 Court's interpretation of Beck, on the other hand, holds that case inapplicable where the jury has the additional option of life imprisonment, see — a conclusion that finds some support in our cases, see ; Moreover, unlike Beck, see 447 U.S., at n. 14, Mississippi's rule on lesser-included-offense instructions applies in noncapital cases (as shown by the cases petitioner did cite). Thus, one opinion of the Mississippi Supreme Court appears to have treated a claim under Beck as distinct from one arising under the Mississippi rule. See Petitioner suggests that we need not treat his failure to present his federal claim in state court as jurisdictional. Reply Brief for Petitioner 4, and n. 1. Notwithstanding the long line of cases clearly stating that the presentation requirement is jurisdictional, see, e.g., Exxon ; a handful of exceptions (discussed in ) have previously led us to conclude that this is "an unsettled question." Bankers & Casualty 4 U.S. 71, (18). As in prior cases, however, we need not decide today "whether our requirement that a federal claim be addressed or properly presented in state court is jurisdictional *446 or prudential, because even treating the rule as purely prudential, the circumstances here justify no exception." Adams, ; accord, ; Bankers at ; ;[3] Accordingly, we dismiss the writ of certiorari as improvidently granted. It is so ordered.

Justice Roberts

majority

Winter v. Natural Resources Defense Council, Inc.

2008-11-12

https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145928/

2008-003

"To be prepared for war is one of the most effectual means of preserving peace." 1 Messages and Papers of the Presidents 57 (J. Richardson comp. 1897). So said George Washington in his first Annual Address to Congress, 218 years ago. One of the most important ways the Navy prepares for war is through integrated training exercises at sea. These exercises include training in the use of modern sonar to detect and track enemy submarines, something the Navy has done for the past 40 years. The plaintiffs complained that the Navy's sonar training program harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy's sonar training, even though that court acknowledged that "the record contains no evidence that marine mammals have been harmed" by the Navy's exercises. 518 F.3d 658, 696 (CA9 2008). The Court of Appeals was wrong, and its decision is reversed. I The Navy deploys its forces in "strike groups," which are groups of surface ships, submarines, and aircraft centered around either an aircraft carrier or an amphibious assault ship. App. to Pet. for Cert. (Pet. App.) 316a-317a. Seamless coordination among strike-group assets is critical. Before deploying a strike group, the Navy requires extensive integrated training in analysis and prioritization of threats, execution of military missions, and maintenance of force protection. App. 110-111. Antisubmarine warfare is currently the Pacific Fleet's top war-fighting priority. Pet. App. 270a-271a. Modern diesel-electric submarines pose a significant threat to Navy vessels because they can operate almost silently, making them extremely difficult to detect and track. Potential adversaries of the United States possess at least 300 of these submarines. App. 571. The most effective technology for identifying submerged diesel-electric submarines within their torpedo range is active sonar, which involves emitting pulses of sound underwater and then receiving the acoustic waves that echo off the target. Pet. App. 266a-267a, 274a. Active sonar is a particularly useful tool because it provides both the bearing and the distance of target submarines; it is also sensitive enough to allow the Navy to track enemy submarines that are quieter than the surrounding marine environment.[1] This case concerns the Navy's use of "mid-frequency active" (MFA) sonar, which transmits sound waves at frequencies between 1 kHz and 10 kHz. Not surprisingly, MFA sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. Sonar reception can be affected by countless different factors, including the time of day, water density, salinity, currents, weather conditions, and the contours of the sea floor. Id., at 278a-279a. When working as part of a strike group, sonar operators must be able to coordinate with other Navy ships and planes while avoiding interference. The Navy conducts regular training exercises under realistic conditions to ensure that sonar operators are thoroughly skilled in its use in a variety of situations. The waters off the coast of southern California (SOCAL) are an ideal location for conducting integrated training exercises, as this is the only area on the west coast that is relatively close to land, air, and sea bases, as well as amphibious landing areas. App. 141-142. At issue in this case are the Composite Training Unit Exercises and the Joint Tactical Force Exercises, in which individual naval units (ships, submarines, and aircraft) train together as members of a strike group. A strike group cannot be certified for deployment until it has successfully completed the integrated training exercises, including a demonstration of its ability to operate under simulated hostile conditions. Id., at 564-565. In light of the threat posed by enemy submarines, all strike groups must demonstrate proficiency in antisubmarine warfare. Accordingly, the SOCAL exercises include extensive training in detecting, tracking, and neutralizing enemy submarines. The use of MFA sonar during these exercises is "mission-critical," given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power. Id., at 568-571. Sharing the waters in the SOCAL operating area are at least 37 species of marine mammals, including dolphins, whales, and sea lions. The parties strongly dispute the extent to which the Navy's training activities will harm those animals or disrupt their behavioral patterns. The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL for 40 years, without a single documented sonar-related injury to any marine mammal. The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals' behavioral patterns. The plaintiffs are the Natural Resources Defense Council, Jean-Michael Cousteau (an environmental enthusiast and filmmaker), and several other groups devoted to the protection of marine mammals and ocean habitats. They contend that MFA sonar can cause much more serious injuries to marine mammals than the Navy acknowledges, including permanent hearing loss, decompression sickness, and major behavioral disruptions. According to the plaintiffs, several mass strandings of marine mammals (outside of SOCAL) have been "associated" with the use of active sonar. They argue that certain species of marine mammals—such as beaked whales—are uniquely susceptible to injury from active sonar; these injuries would not necessarily be detected by the Navy, given that beaked whales are "very deep divers" that spend little time at the surface. II The procedural history of this case is rather complicated. The Marine Mammal Protection Act of 1972 (MMPA), 86 Stat. 1027, generally prohibits any individual from "taking" a marine mammal, defined as harassing, hunting, capturing, or killing it. 16 U.S. C. §§1362(13), 1372(a). The Secretary of Defense may "exempt any action or category of actions" from the MMPA if such actions are "necessary for national defense." §1371(f)(1). In January 2007, the Deputy Secretary of Defense—acting for the Secretary—granted the Navy a 2-year exemption from the MMPA for the training exercises at issue in this case. Pet. App. 219a-220a. The exemption was conditioned on the Navy adopting several mitigation procedures, including: (1) training lookouts and officers to watch for marine mammals; (2) requiring at least five lookouts with binoculars on each vessel to watch for anomalies on the water surface (including marine mammals); (3) requiring aircraft and sonar operators to report detected marine mammals in the vicinity of the training exercises; (4) requiring reduction of active sonar transmission levels by 6 dB if a marine mammal is detected within 1,000 yards of the bow of the vessel, or by 10 dB if detected within 500 yards; (5) requiring complete shutdown of active sonar transmission if a marine mammal is detected within 200 yards of the vessel; (6) requiring active sonar to be operated at the "lowest practicable level"; and (7) adopting coordination and reporting procedures. Id., at 222a-230a. The National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, requires federal agencies "to the fullest extent possible" to prepare an environmental impact statement (EIS) for "every . . . major Federal actio[n] significantly affecting the quality of the human environment." 42 U.S. C. §4332(2)(C) (2000 ed.). An agency is not required to prepare a full EIS if it determines—based on a shorter environmental assessment (EA)—that the proposed action will not have a significant impact on the environment. 40 CFR §§1508.9(a), 1508.13 (2007). In February 2007, the Navy issued an EA concluding that the 14 SOCAL training exercises scheduled through January 2009 would not have a significant impact on the environment. App. 226-227. The EA divided potential injury to marine mammals into two categories: Level A harassment, defined as the potential destruction or loss of biological tissue (i.e., physical injury), and Level B harassment, defined as temporary injury or disruption of behavioral patterns such as migration, feeding, surfacing, and breeding. Id., at 160-161. The Navy's computer models predicted that the SOCAL training exercises would cause only eight Level A harassments of common dolphins each year, and that even these injuries could be avoided through the Navy's voluntary mitigation measures, given that dolphins travel in large pods easily located by Navy lookouts. Id., at 176-177, 183. The EA also predicted 274 Level B harassments of beaked whales per year, none of which would result in permanent injury. Id., at 185-186. Beaked whales spend little time at the surface, so the precise effect of active sonar on these mammals is unclear. Erring on the side of caution, the Navy classified all projected harassments of beaked whales as Level A. Id., at 186, 223. In light of its conclusion that the SOCAL training exercises would not have a significant impact on the environment, the Navy determined that it was unnecessary to prepare a full EIS. See 40 CFR §1508.13. Shortly after the Navy released its EA, the plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the Navy's SOCAL training exercises violated NEPA, the Endangered Species Act of 1973 (ESA), and the Coastal Zone Management Act of 1972 (CZMA).[2] The District Court granted plaintiffs' motion for a preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The court held that plaintiffs had "demonstrated a probability of success" on their claims under NEPA and the CZMA. Pet. App. 207a, 215a. The court also determined that equitable relief was appropriate because, under Ninth Circuit precedent, plaintiffs had established at least a "`possibility'" of irreparable harm to the environment. Id., at 217a. Based on scientific studies, declarations from experts, and other evidence in the record, the District Court concluded that there was in fact a "near certainty" of irreparable injury to the environment, and that this injury outweighed any possible harm to the Navy. Id., at 217a-218a. The Navy filed an emergency appeal, and the Ninth Circuit stayed the injunction pending appeal. 502 F.3d 859, 865 (2007). After hearing oral argument, the Court of Appeals agreed with the District Court that preliminary injunctive relief was appropriate. The appellate court concluded, however, that a blanket injunction prohibiting the Navy from using MFA sonar in SOCAL was overbroad, and remanded the case to the District Court "to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." 508 F.3d 885, 887 (2007). On remand, the District Court entered a new preliminary injunction allowing the Navy to use MFA sonar only as long as it implemented the following mitigation measures (in addition to the measures the Navy had adopted pursuant to its MMPA exemption): (1) imposing a 12-mile "exclusion zone" from the coastline; (2) using lookouts to conduct additional monitoring for marine mammals; (3) restricting the use of "helicopter-dipping" sonar; (4) limiting the use of MFA sonar in geographic "choke points"; (5) shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel; and (6) powering down MFA sonar by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water. 530 F. Supp. 2d 1110, 1118-1121 (CD Cal. 2008). The Navy filed a notice of appeal, challenging only the last two restrictions. The Navy then sought relief from the Executive Branch. The President, pursuant to 16 U.S. C. §1456(c)(1)(B), granted the Navy an exemption from the CZMA. Section 1456(c)(1)(B) permits such exemptions if the activity in question is "in the paramount interest of the United States." The President determined that continuation of the exercises as limited by the Navy was "essential to national security." Pet. App. 232a. He concluded that compliance with the District Court's injunction would "undermine the Navy's ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of . . . strike groups." Ibid. Simultaneously, the Council on Environmental Quality (CEQ) authorized the Navy to implement "alternative arrangements" to NEPA compliance in light of "emergency circumstances." See 40 CFR §1506.11.[3] The CEQ determined that alternative arrangements were appropriate because the District Court's injunction "create[s] a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable." Pet. App. 238a. Under the alternative arrangements, the Navy would be permitted to conduct its training exercises under the mitigation procedures adopted in conjunction with the exemption from the MMPA. The CEQ also imposed additional notice, research, and reporting requirements. In light of these actions, the Navy then moved to vacate the District Court's injunction with respect to the 2,200-yard shutdown zone and the restrictions on training in surface ducting conditions. The District Court refused to do so, 527 F. Supp. 2d 1216 (2008), and the Court of Appeals affirmed. The Ninth Circuit held that there was a serious question regarding whether the CEQ's interpretation of the "emergency circumstances" regulation was lawful. Specifically, the court questioned whether there was a true "emergency" in this case, given that the Navy has been on notice of its obligation to comply with NEPA from the moment it first planned the SOCAL training exercises. 518 F.3d, at 681. The Court of Appeals concluded that the preliminary injunction was entirely predictable in light of the parties' litigation history. Ibid. The court also held that plaintiffs had established a likelihood of success on their claim that the Navy was required to prepare a full EIS for the SOCAL training exercises. Id., at 693. The Ninth Circuit agreed with the District Court's holding that the Navy's EA—which resulted in a finding of no significant environmental impact—was "cursory, unsupported by cited evidence, or unconvincing." Ibid.[4] The Court of Appeals further determined that plaintiffs had carried their burden of establishing a "possibility" of irreparable injury. Even under the Navy's own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals' behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy's training exercises was "speculative," since the Navy has never before operated under the procedures required by the District Court. Id., at 698-699. In particular, the court determined that: (1) the 2,200-yard shutdown zone imposed by the District Court was unlikely to affect the Navy's operations, because the Navy often shuts down its MFA sonar systems during the course of training exercises; and (2) the power-down requirement during significant surface ducting conditions was not unreasonable because such conditions are rare, and the Navy has previously certified strike groups that had not trained under such conditions. Id., at 699-702. The Ninth Circuit concluded that the District Court's preliminary injunction struck a proper balance between the competing interests at stake. We granted certiorari, 554 U. S. ___ (2008), and now reverse and vacate the injunction. III A A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. ___, ___ (2008) (slip op., at 12); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-312 (1982). The District Court and the Ninth Circuit concluded that plaintiffs have shown a likelihood of success on the merits of their NEPA claim. The Navy strongly disputes this determination, arguing that plaintiffs' likelihood of success is low because the CEQ reasonably concluded that "emergency circumstances" justified alternative arrangements to NEPA compliance. 40 CFR §1506.11. Plaintiffs' briefs before this Court barely discuss the ground relied upon by the lower courts—that the plain meaning of "emergency circumstances" does not encompass a court order that was "entirely predictable" in light of the parties' litigation history. 518 F.3d, at 681. Instead, plaintiffs contend that the CEQ's actions violated the separation of powers by readjudicating a factual issue already decided by an Article III court. Moreover, they assert that the CEQ's interpretations of NEPA are not entitled to deference because the CEQ has not been given statutory authority to conduct adjudications. The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a "possibility" of irreparable harm. Id., at 696-697; 530 F. Supp. 2d, at 1118 (quoting Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891, 906 (CA9 2007); Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1159 (CA9 2006)). The lower courts held that plaintiffs had met this standard because the scientific studies, declarations, and other evidence in the record established to "a near certainty" that the Navy's training exercises would cause irreparable harm to the environment. 530 F. Supp. 2d, at 1118. The Navy challenges these holdings, arguing that plaintiffs must demonstrate a likelihood of irreparable injury— not just a possibility—in order to obtain preliminary relief. On the facts of this case, the Navy contends that plaintiffs' alleged injuries are too speculative to give rise to irreparable injury, given that ever since the Navy's training program began 40 years ago, there has been no documented case of sonar-related injury to marine mammals in SOCAL. And even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests. For their part, plaintiffs assert that they would prevail under any formulation of the irreparable injury standard, because the District Court found that they had established a "near certainty" of irreparable harm. We agree with the Navy that the Ninth Circuit's "possibility" standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441 (1974); O'Shea v. Littleton, 414 U.S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.1, p. 139 (2d ed. 1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, "the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered"); id., at 155 ("a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury"). Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam). It is not clear that articulating the incorrect standard affected the Ninth Circuit's analysis of irreparable harm. Although the court referred to the "possibility" standard, and cited Circuit precedent along the same lines, it affirmed the District Court's conclusion that plaintiffs had established a "`near certainty'" of irreparable harm. 518 F.3d, at 696-697. At the same time, however, the nature of the District Court's conclusion is itself unclear. The District Court originally found irreparable harm from sonar-training exercises generally. But by the time of the District Court's final decision, the Navy challenged only two of six restrictions imposed by the court. See supra, at 7-8. The District Court did not reconsider the likelihood of irreparable harm in light of the four restrictions not challenged by the Navy. This failure is significant in light of the District Court's own statement that the 12-mile exclusion zone from the coastline—one of the unchallenged mitigation restrictions—"would bar the use of MFA sonar in a significant portion of important marine mammal habitat." 530 F. Supp. 2d, at 1119. We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment. When the Government conducts an activity, "NEPA itself does not mandate particular results." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Instead, NEPA imposes only procedural requirements to "ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Id., at 349. Part of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there may be little if any information about prospective environmental harms and potential mitigating measures. Here, in contrast, the plaintiffs are seeking to enjoin—or substantially restrict— training exercises that have been taking place in SOCAL for the last 40 years. And the latest series of exercises were not approved until after the defendant took a "hard look at environmental consequences," id., at 350 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21 (1976) (internal quotation marks omitted)), as evidenced by the issuance of a detailed, 293-page EA. As explained in the next section, even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. For the same reason, we do not address the lower courts' holding that plaintiffs have also established a likelihood of success on the merits. B A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf, 553 U. S., at __ (slip op., at 12). In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co., 480 U. S., at 542. "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." RomeroB-arcelo, 456 U. S., at 312; see also Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941). In this case, the District Court and the Ninth Circuit significantly understated the burden the preliminary injunction would impose on the Navy's ability to conduct realistic training exercises, and the injunction's consequent adverse impact on the public interest in national defense. This case involves "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force," which are "essentially professional military judgments." Gilligan v. Morgan, 413 U.S. 1, 10 (1973). We "give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." Goldman v. Weinberger, 475 U.S. 503, 507 (1986). As the Court emphasized just last Term, "neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people." Boumediene v. Bush, 553 U. S. ___, ___ (2008) (slip op., at 68). Here, the record contains declarations from some of the Navy's most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Admiral Gary Roughead—the Chief of Naval Operations—stated that during training exercises: "It is important to stress the ship crews in all dimensions of warfare simultaneously. If one of these training elements were impacted—for example, if effective sonar training were not possible—the training value of the other elements would also be degraded . . . ." Pet. App. 342a. Captain Martin May—the Third Fleet's Assistant Chief of Staff for Training and Readiness—emphasized that the use of MFA sonar is "mission-critical." App. 570-571. He described the ability to operate MFA sonar as a "highly perishable skill" that must be repeatedly practiced under realistic conditions. Id., at 577. During training exercises, MFA sonar operators learn how to avoid sound-reducing "clutter" from ocean floor topography and environmental conditions; they also learn how to avoid interference and how to coordinate their efforts with other sonar operators in the strike group. Id., at 574. Several Navy officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court—the 2,200-yard shutdown zone and the requirement that the Navy power down its sonar systems during significant surface ducting conditions. See, e.g., Pet. App. 333a (powering down in presence of surface ducting "unreasonably prevent[s] realistic training"); id., at 356a (shutdown zone would "result in a significant, adverse impact to realistic training"). We accept these officers' assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation. These interests must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court. Plaintiffs have submitted declarations asserting that they take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats. Plaintiffs contend that the Navy's use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs' ability to study and observe the animals. While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President—the Commander in Chief—has determined that training with active sonar is "essential to national security." Pet. App. 232a. The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question. C 1. Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion. The court's entire discussion of these factors consisted of one (albeit lengthy) sentence: "The Court is also satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." Id., at 217a-218a. As the prior Ninth Circuit panel in this case put it, in staying the District Court's original preliminary injunction, "[t]he district court did not give serious consideration to the public interest factor." 502 F.3d, at 863. The District Court's order on remand did nothing to cure this defect, but simply repeated nearly verbatim the same sentence from its previous order. Compare 530 F. Supp. 2d, at 1118, with Pet. App. 217a-218a. The subsequent Ninth Circuit panel framed its opinion as reviewing the District Court's exercise of discretion, 518 F.3d, at 697-699, but that discretion was barely exercised here. The Court of Appeals held that the balance of equities and the public interest favored the plaintiffs, largely based on its view that the preliminary injunction would not in fact impose a significant burden on the Navy's ability to conduct its training exercises and certify its strike groups. Id., at 698-699. The court deemed the Navy's concerns about the preliminary injunction "speculative" because the Navy had not operated under similar procedures before. Ibid. But this is almost always the case when a plaintiff seeks injunctive relief to alter a defendant's conduct. The lower courts failed properly to defer to senior Navy officers' specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy's SOCAL training exercises. See Wright & Miller §2948.2, at 167-68 ("The policy against the imposition of judicial restraints prior to an adjudication of the merits becomes more significant when there is reason to believe that the decree will be burdensome"). 2. The preliminary injunction requires the Navy to shut down its MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. The Ninth Circuit stated that the 2,200-yard shutdown zone would not be overly burdensome because sightings of marine mammals during training exercises are relatively rare. But regardless of the frequency of marine mammal sightings, the injunction will greatly increase the size of the shutdown zone. Pursuant to its exemption from the MMPA, the Navy agreed to reduce the power of its MFA sonar at 1,000 yards and 500 yards, and to completely turn off the system at 200 yards. Pet. App. 222a-230a. The District Court's injunction does not include a graduated power-down, instead requiring a total shutdown of MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. There is an exponential relationship between radius length and surface area (Area = π r2). Increasing the radius of the shutdown zone from 200 to 2,200 yards would accordingly expand the surface area of the shutdown zone by a factor of over 100 (from 125,664 square yards to 15,205,308 square yards). The lower courts did not give sufficient weight to the views of several top Navy officers, who emphasized that because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days' worth of training. Id., at 344a. Limiting the number of sonar shutdowns is particularly important during the Joint Tactical Force Exercises, which usually last for less than two weeks. Ibid. Admiral Bird explained that the 2,200-yard shutdown zone would cause operational commanders to "lose awareness of the tactical situation through the constant stopping and starting of MFA [sonar]." Id., at 332a; see also id., at 356a ("It may take days to get to the pivotal attack in antisubmarine warfare, but only minutes to confound the results upon which certification is based"). Even if there is a low likelihood of a marine mammal sighting, the preliminary injunction would clearly increase the number of disruptive sonar shutdowns the Navy is forced to perform during its SOCAL training exercises. The Court of Appeals also concluded that the 2,200-yard shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar 27 times during its eight prior training exercises in SOCAL; in several of these cases, the Navy turned off its sonar when marine mammals were spotted well beyond the Navy's selfimposed 200-yard shutdown zone. 518 F.3d, at 700, n. 65. Admiral Locklear—the Commander of the Navy's Third Fleet—stated that any shutdowns beyond the 200-yard zone were voluntary avoidance measures that likely took place at tactically insignificant times; the Ninth Circuit discounted this explanation as not supported by the record. Ibid. In reaching this conclusion, the Court of Appeals ignored key portions of Admiral Locklear's declaration, in which he stated unequivocally that commanding officers "would not shut down sonar until legally required to do so if in contact with a submarine." Pet. App. 354a-355a. Similarly, if a commanding officer is in contact with a target submarine, "the CO will be expected to continue to use active sonar unless another ship or helicopter can gain contact or if regulatory reasons dictate otherwise." Id., at 355a. The record supports the Navy's contention that its shutdowns of MFA sonar during prior training exercises only occurred during tactically insignificant times; those voluntary shutdowns do not justify the District Court's imposition of a mandatory 2,200-yard shutdown zone. Lastly, the Ninth Circuit stated that a 2,200-yard shutdown zone was feasible because the Navy had previously adopted a 2,000-meter zone for low-frequency active (LFA) sonar. The Court of Appeals failed to give sufficient weight to the fact that LFA sonar is used for long-range detection of enemy submarines, and thus its use and shutdown involve tactical considerations quite different from those associated with MFA sonar. See App. 508 (noting that equating MFA sonar with LFA sonar "is completely misleading and is like comparing 20 degrees Fahrenheit to 20 degrees Celsius"). 3. The Court of Appeals also concluded that the Navy's training exercises would not be significantly affected by the requirement that it power down MFA sonar by 6 dB during significant surface ducting conditions. Again, we think the Ninth Circuit understated the burden this requirement would impose on the Navy's ability to conduct realistic training exercises. Surface ducting is a phenomenon in which relatively little sound energy penetrates beyond a narrow layer near the surface of the water. When surface ducting occurs, active sonar becomes more useful near the surface but less useful at greater depths. Pet. App. 299a-300a. Dieselelectric submariners are trained to take advantage of these distortions to avoid being detected by sonar. Id., at 333a. The Ninth Circuit determined that the power-down requirement during surface ducting conditions was unlikely to affect certification of the Navy's strike groups because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such conditions. 518 F.3d, at 701-702. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Admiral Bird explained that the 6 dB powerdown requirement makes the training less valuable because it "exposes [sonar operators] to unrealistically lower levels of mutual interference caused by multiple sonar systems operating together by the ships within the Strike Group." Pet. App. 281a (footnote omitted). Although a 6 dB reduction may not seem terribly significant, decibels are measured on a logarithmic scale, so a 6 dB decrease in power equates to a 75% reduction. Id., at 284a-285a. 4. The District Court acknowledged that "`the imposition of these mitigation measures will require the Navy to alter and adapt the way it conducts antisubmarine warfare training—a substantial challenge. Nevertheless, evidence presented to the Court reflects that the Navy has employed mitigation measures in the past, without sacrificing training objectives.'" 527 F. Supp. 2d, at 1238. Apparently no good deed goes unpunished. The fact that the Navy has taken measures in the past to address concerns about marine mammals—or, for that matter, has elected not to challenge four additional restrictions imposed by the District Court in this case, see supra, at 7-8 —hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals concluded its opinion by stating that "the Navy may return to the district court to request relief on an emergency basis" if the preliminary injunction "actually result[s] in an inability to train and certify sufficient naval forces to provide for the national defense." 518 F.3d, at 703. This is cold comfort to the Navy. The Navy contends that the injunction will hinder efforts to train sonar operators under realistic conditions, ultimately leaving strike groups more vulnerable to enemy submarines. Unlike the Ninth Circuit, we do not think the Navy is required to wait until the injunction "actually result[s] in an inability to train . . . sufficient naval forces for the national defense" before seeking its dissolution. By then it may be too late. IV As noted above, we do not address the underlying merits of plaintiffs' claims. While we have authority to proceed to such a decision at this point, see Munaf, 553 U. S., at ___ (slip op., at 13-14), doing so is not necessary here. In addition, reaching the merits is complicated by the fact that the lower courts addressed only one of several issues raised, and plaintiffs have largely chosen not to defend the decision below on that ground.[5] At the same time, what we have said makes clear that it would be an abuse of discretion to enter a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction. An injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course. Romero-Barcelo, 456 U. S., at 313 ("a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law"). The factors examined above—the balance of equities and consideration of the public interest—are pertinent in assessing the propriety of any injunctive relief, preliminary or permanent. See Amoco Production Co., 480 U. S., at 546, n. 12 ("The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success"). Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security. This is particularly true in light of the fact that the training has been going on for 40 years with no documented episode of harm to a marine mammal. A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy's training in the interim. See, e.g., Steffel v. Thompson, 415 U.S. 452, 466 (1974) ("Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction"). In the meantime, we see no basis for jeopardizing national security, as the present injunction does. Plaintiffs confirmed at oral argument that the preliminary injunction was "the whole ball game," Tr. of Oral Arg. 33, and our analysis of the propriety of preliminary relief is applicable to any permanent injunction as well. * * * President Theodore Roosevelt explained that "the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed." President's Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the importance of plaintiffs' ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy's need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy. It is so ordered. JUSTICE BREYER, with whom JUSTICE STEVENS joins as to Part I, concurring in part and dissenting in part. As of December 2006, the United States Navy planned to engage in a series of 14 antisubmarine warfare training exercises off the southern California coast. The Natural Resources Defense Council, Inc., and others (hereinafter NRDC) brought this case in Federal District Court claiming that the National Environmental Policy Act of 1969 (NEPA) requires the Navy to prepare an environmental impact statement (EIS) (assessing the impact of the exercises on marine mammals) prior to its engaging in the exercises. As the case reaches us, the District Court has found that the NRDC will likely prevail on its demand for an EIS; the Navy has agreed to prepare an EIS; the District Court has forbidden the Navy to proceed with the exercises unless it adopts six mitigating measures; and the Navy has agreed to adopt all but two of those measures. The controversy between the parties now concerns the two measures that the Navy is unwilling to adopt. The first concerns the "shutdown zone," a circle with a ship at the center within which the Navy must try to spot marine mammals and shut down its sonar if one is found. The controverted condition would enlarge the radius of that circle from about one-tenth of a mile (200 yards) to one and one-quarter mile (2,200 yards). The second concerns special ocean conditions called "surface ducting conditions." The controverted condition would require the Navy, when it encounters any such condition, to diminish the sonar's power by 75%. The Court of Appeals affirmed the District Court order that contained these two conditions. 518 F.3d 658, 703 (CA9 2008). I We must now decide whether the District Court was legally correct in forbidding the training exercises unless the Navy implemented the two controverted conditions. In doing so, I assume, like the Court, that the NRDC will prevail on its demand for an EIS. (Indeed, the Navy is in the process of preparing one.) And, I would ask whether, in imposing these conditions, the District Court properly "balance[d the] harms." See, e.g., Amoco Production Co. v. Gambell, 480 U.S. 531, 545 (1987). Respondents' (hereinafter plaintiffs) argument favoring the District Court injunction is a strong one. As JUST-ICE GINSBURG well points out, see post, at 4-5 (dissenting opinion), the very point of NEPA's insistence upon the writing of an EIS is to force an agency "carefully" to "consider. . . detailed information concerning significant environmental impacts," while "giv[ing] the public the assurance that the agency `has indeed considered environmental concerns in its decisionmaking process.'" Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA seeks to assure that when Government officials consider taking action that may affect the environment, they do so fully aware of the relevant environmental considerations. An EIS does not force them to make any particular decision, but it does lead them to take environmental considerations into account when they decide whether, or how, to act. Id., at 354. Thus, when a decision to which EIS obligations attach is made without the informed environmental consideration that NEPA requires, much of the harm that NEPA seeks to prevent has already taken place. In this case, for example, the absence of an injunction means that the Navy will proceed with its exercises in the absence of the fuller consideration of environmental effects that an EIS is intended to bring. The absence of an injunction thereby threatens to cause the very environmental harm that a full preaction EIS might have led the Navy to avoid (say, by adopting the two additional mitigation measures that the NRDC proposes). Consequently, if the exercises are to continue, conditions designed to mitigate interim environmental harm may well be appropriate. On the other hand, several features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction imposing the two controverted requirements. First, the evidence of need for the two special conditions is weak or uncertain. The record does show that the exercises as the Navy originally proposed them could harm marine mammals. The District Court found (based on the Navy's study of the matter) that the exercises might cause 466 instances of Level A harm and 170,000 instances of Level B harm. App. to Pet. for Cert. 196a-197a. (The environmental assessment (EA) actually predicted 564 instances of Level A harm. See App. 223-224.) The study defines Level A injury as "any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild" through "destruction or loss of biological tissue," whether "slight to severe." Id., at 160. It defines Level B harm as "`any act that disturbs or is likely to disturb a marine mammal . . . by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered'" and describes it as a "short term" and "temporary" "disturbance." Id., at 161, 175. The raw numbers seem large. But the parties argue about the extent to which they mean likely harm. The Navy says the classifications and estimates err on the side of caution. (When in doubt about the amount of harm to a mammal, the study assumed the harm would qualify as Level A harassment. Id., at 200.) The Navy also points out that, by definition, mammals recover from Level B injuries, often very quickly. It notes that, despite 40 years of naval exercises off the southern California coast, no injured marine mammal has ever been found. App. to Pet. for Cert. 274a-275a. (It adds that dolphins often swim alongside the ships. Id., at 290, 346.) At the same time, plaintiffs point to instances where whales have been found stranded. They add that scientific studies have found a connection between those beachings and the Navy's use of sonar, see, e.g., App. 600-602, and the Navy has even acknowledged one stranding where "U. S. Navy midfrequency sonar has been identified as the most plausible contributory source to the stranding event," id., at 168. Given the uncertainty the figures create in respect to the harm caused by the Navy's original training plans, it would seem important to have before us at least some estimate of the harm likely avoided by the Navy's decision not to contest here four of the six mitigating conditions that the District Court ordered. Without such evidence, it is difficult to assess the relevant harm—that is, the environmental harm likely caused by the Navy's exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place. Second, the Navy has filed multiple affidavits from Navy officials explaining in detail the seriousness of the harm that the delay associated with completion of this EIS (approximately one year) would create in respect to the Navy's ability to maintain an adequate national defense. See generally App. to Pet. for Cert. 260a-357a. Taken by themselves, those affidavits make a strong case for the proposition that insistence upon the two additional mitigating conditions would seriously interfere with necessary defense training. The affidavits explain the importance of training in antisubmarine warfare, id., at 263a; the need to use active sonar to detect enemy submarines, id., at 266a-267a, App. 566; the complexity of a training exercise involving sonar, App. to Pet. for Cert. 343a; the need for realistic conditions when training exercises take place, id., at 299a-300a, App. 566; the "cascading" negative "effect" that delay in one important aspect of a set of coordinated training exercises has upon the Navy's ability "to provide combat ready forces," App. to Pet. for Cert. 343a; the cost and disruption that would accompany the adoption of the two additional mitigating conditions that the NRDC seeks, ibid.; the Navy's resulting inability adequately to train personnel, id., at 278a; the effectiveness of the mammal-protecting measures that the Navy has taken in the past, id., at 285a-298a; and the reasonable likelihood that the mitigating conditions to which it has agreed will prove adequate, id., at 296a. Third, and particularly important in my view, the District Court did not explain why it rejected the Navy's affidavit-supported contentions. In its first opinion enjoining the use of sonar, the District Court simply stated: "The Court is . . . satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using [mid-frequency active (MFA)] sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." Id., at 217a-218a. Following remand from the Court of Appeals, the District Court simply repeated, word for word, this same statement. It said: "The Court is . . . satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur (or the public interest would suffer) if Defendants were prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." 530 F. Supp. 2d 1110, 1118 (CD Cal. 2008). With respect to the imposition of the 2,200 yard shutdown zone, the District Court noted evidence of the harm that MFA sonar poses to marine mammals, and then concluded that "[t]he Court therefore is persuaded that while the 2200 yard shutdown requirement may protect marine mammals from the harshest of sonar-related consequences, it represents a minimal imposition [on] the Navy's training exercises." Id., at 1119. The District Court did not there explain the basis for that conclusion. With respect to the imposition of the surface ducting condition, the District Court said nothing about the Navy's interests at all. Id., at 1120-1121. While a District Court is often free simply to state its conclusion in summary fashion, in this instance neither that conclusion, nor anything else I have found in the District Court's opinion, answers the Navy's documented claims that the two extra conditions the District Court imposed will, in effect, seriously interfere with its ability to carry out necessary training exercises. The first condition requires the Navy to reduce the power of its sonar equipment by 75% when the ship encounters a condition called "surface ducting" that occurs when the presence of layers of water of different temperature make it unusually difficult for sonar operators to determine whether a diesel submarine is hiding below. Rear Admiral John Bird, an expert in submarine warfare, made clear that the 75% power-reduction requirement was equivalent to forbidding any related training. App. to Pet. for Cert. 297a. But he says in paragraph 52 of his declaration: "Training in surface ducting conditions is critical to effective training because sonar operators need to learn how sonar transmissions are altered due to surface ducting and how submarines may take advantage of them." Id., at 299a-300a. The District Court, as far as I can tell, did not even acknowledge in its opinion the Navy's asserted interest in being able to train under these conditions. 530 F. Supp. 2d, at 1120-1121. The second condition requires the Navy to expand the sonar "shutdown" area surrounding a ship (i.e., turn off the sonar if a mammal is spotted in the area) from a circle with a radius of about one-tenth of a mile to a circle with a radius of about one mile and a quarter. Both sides agree that this requirement will lead to more shutdowns. Admiral Gary Roughead, Chief of Naval Operations, states in paragraph 12 of his declaration that this expanded zone requirement "will result in increased interruptions to training exercises, . . . vastly increas[ing] the risk of negating training effectiveness, preventing strike group certification, and disrupting carefully orchestrated deployment plans to meet world-wide operational commitments." App. to Pet. for Cert. 344a. Again, I can find nothing in the District Court's opinion that specifically explains why this is not so. 530 F. Supp. 2d, at 1119-1120. Fourth, the Court of Appeals sought, through its own thorough examination of the record, to supply the missing explanations. But those explanations are not sufficient. In respect to the surface ducting conditions, the Court of Appeals rejected the Navy's contentions on the ground that those conditions are "rar[e]," and the Navy has certified trainings that did not involve any encounter with those conditions. 518 F.3d, at 701-702. I am not certain, however, why the rarity of the condition supports the District Court's conclusion. Rarity argues as strongly for training when the condition is encountered as it argues for the contrary. In respect to the expansion of the "shutdown" area, the Court of Appeals noted that (1) the Navy in earlier exercises had shut down its sonar when marine mammals were sited within about one-half a mile, (2) the Navy has used a larger shutdown area when engaged in exercises with lower frequency sonar equipment, and (3) foreign navies have used larger shutdown areas. Id., at 699-701, and nn. 63, 67. But the Navy's affidavits state that (1) earlier shutdowns when marine mammals were spotted at farther distances "likely occurred during tactically insignificant times," App. to Pet. for Cert. 356a, (2) ships with low frequency sonar (unlike the sonar here at issue) have equipment that makes it easier to monitor the larger area, particularly by significantly reducing the number of monitoring personnel necessarily involved, and (3) foreign navy experience is not relevant given the potentially different military demands upon those navies, App. 508-509. Finally, the Court of Appeals, mirroring a similar District Court suggestion in the language I have quoted, says that "the exercises in southern California are only a subset of the Navy's training activities involving active sonar." 518 F.3d, at 702. It adds that the Navy's study "shows the Navy is still able to conduct its exercises in alternative locations, in reduced number, or through simulation." Ibid., n. 69. The Court of Appeals, however, also concluded that the study "provides reasonably detailed justifications for why the Southern California Operating Area is uniquely suited to these exercises, and demonstrates that the Navy would suffer a certain hardship if the considered alternatives were employed instead." Ibid. Fifth, when the Court of Appeals first heard this case following the District Court's imposition of a broad, absolute injunction, it held that any injunction must be crafted so that the Navy could continue its training exercises. Noting that the Navy had, in the past, been able to use mitigation measures to "reduce the harmful effects of its active sonar," it "vacate[d] the stay and remand[ed] this matter to the district court to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." 508 F.3d 885, 887 (CA9 2007) (emphasis added). For the reasons just stated, neither the District Court nor the Court of Appeals has explained why we should reject the Navy's assertions that it cannot effectively conduct its training exercises under the mitigation conditions imposed by the District Court. I would thus vacate the preliminary injunction imposed by the District Court to the extent it has been challenged by the Navy. Neither the District Court nor the Court of Appeals has adequately explained its conclusion that the balance of the equities tips in favor of plaintiffs. Nor do those parts of the record to which the parties have pointed supply the missing explanation. II Nonetheless, as the Court of Appeals held when it first considered this case, the Navy's past use of mitigation conditions makes clear that the Navy can effectively train under some mitigation conditions. In the ordinary course, I would remand so the District Court could, pursuant to the Court of Appeals' direction, set forth mitigation conditions that will protect the marine wildlife while also enabling the Navy to carry out its exercises. But, at this point, the Navy has informed us that this set of exercises will be complete by January, at the latest, and an EIS will likely be complete at that point, as well. Thus, by the time the District Court would have an opportunity to impose new conditions, the case could very well be moot. In February of this year, the Court of Appeals stayed the injunction imposed by the District Court—but only pending this Court's resolution of the case. The Court of Appeals concluded that "[i]n light of the short time before the Navy is to commence its next exercise, the importance of the Navy's mission to provide for the national defense and the representation by the Chief of Naval Operations that the district court's preliminary injunction in its current form will `unacceptably risk' effective training and strike group certification and thereby interfere with his statutory responsibility . . . to `organiz[e], train[], and equip[] the Navy,'" interim relief was appropriate, and the court then modified the two mitigation conditions at issue. 518 F.3d 704, 705 (CA9 2008). With respect to the 2,200 yard shutdown zone, it required the Navy to suspend its use of the sonar if a marine mammal is detected within 2,200 yards, except when sonar is being used at a "critical point in the exercise," in which case the amount by which the Navy must power down is proportional to the mammal's proximity to the sonar. Id., at 705-706 (internal quotation marks omitted). With respect to surface ducting, the Navy is only required to shut down sonar altogether when a marine mammal is detected within 500 meters and the amount by which it is otherwise required to power down is again proportional to the mammal's proximity to the sonar source. Id., at 705-706. The court believed these conditions would permit the Navy to go forward with its imminently planned exercises while at the same time minimizing the harm to marine wildlife. In my view, the modified conditions imposed by the Court of Appeals in its February stay order reflect the best equitable conditions that can be created in the short time available before the exercises are complete and the EIS is ready. The Navy has been training under these conditions since February, so allowing them to remain in place will, in effect, maintain what has become the status quo. Therefore, I would modify the Court of Appeals' February 29, 2008, order so that the provisional conditions it contains remain in place until the Navy's completion of an acceptable EIS.

"To be prepared for war is one of the most effectual means of preserving peace." 1 Messages and Papers of the Presidents 57 (J. Richardson comp. 1897). So said George Washington in his first Annual Address to Congress, 218 years ago. One of the most important ways the Navy prepares for war is through integrated training exercises at sea. These exercises include training in the use of modern sonar to detect and track enemy submarines, something the Navy has done for the past 40 years. The plaintiffs complained that the Navy's sonar training program harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy's sonar training, even though that court acknowledged that "the record contains no evidence that marine mammals have been harmed" by the Navy's exercises. The Court of Appeals was wrong, and its decision is reversed. I The Navy deploys its forces in "strike groups," which are groups of surface ships, submarines, and aircraft centered around either an aircraft carrier or an amphibious assault ship. App. to Pet. for Cert. (Pet. App.) 316a-317a. Seamless coordination among strike-group assets is critical. Before deploying a strike group, the Navy requires extensive integrated training in analysis and prioritization of threats, execution of military missions, and maintenance of force protection. App. 1-111. Antisubmarine warfare is currently the Pacific Fleet's top war-fighting priority. Pet. App. 270a-271a. Modern diesel-electric submarines pose a significant threat to Navy vessels because they can operate almost silently, making them extremely difficult to detect and track. Potential adversaries of the United States possess at least 300 of these submarines. App. 571. The most effective technology for identifying submerged diesel-electric submarines within their torpedo range is active sonar, which involves emitting pulses of sound underwater and then receiving the acoustic waves that echo off the target. Pet. App. 266a-267a, 274a. Active sonar is a particularly useful tool because it provides both the bearing and the distance of target submarines; it is also sensitive enough to allow the Navy to track enemy submarines that are quieter than the surrounding marine [1] This case concerns the Navy's use of "mid-frequency active" (MFA) sonar, which transmits sound waves at frequencies between 1 kHz and kHz. Not surprisingly, MFA sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. Sonar reception can be affected by countless different factors, including the time of day, water density, salinity, currents, weather conditions, and the contours of the sea floor. at 278a-279a. When working as part of a strike group, sonar operators must be able to coordinate with other Navy ships and planes while avoiding interference. The Navy conducts regular training exercises under realistic conditions to ensure that sonar operators are thoroughly skilled in its use in a variety of situations. The waters off the coast of southern California (SOCAL) are an ideal location for conducting integrated training exercises, as this is the only area on the west coast that is relatively close to land, air, and sea bases, as well as amphibious landing areas. App. 141-142. At issue in this case are the Composite Training Unit Exercises and the Joint Tactical Force Exercises, in which individual naval units (ships, submarines, and aircraft) train together as members of a strike group. A strike group cannot be certified for deployment until it has successfully completed the integrated training exercises, including a demonstration of its ability to operate under simulated hostile In light of the threat posed by enemy submarines, all strike groups must demonstrate proficiency in antisubmarine warfare. Accordingly, the SOCAL exercises include extensive training in detecting, tracking, and neutralizing enemy submarines. The use of MFA sonar during these exercises is "mission-critical," given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power. Sharing the waters in the SOCAL operating area are at least 37 species of marine mammals, including dolphins, whales, and sea lions. The parties strongly dispute the extent to which the Navy's training activities will harm those animals or disrupt their behavioral patterns. The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL for 40 years, without a single documented sonar-related injury to any marine mammal. The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals' behavioral patterns. The plaintiffs are the Natural Resources Defense Council, Jean-Michael Cousteau (an environmental enthusiast and filmmaker), and several other groups devoted to the protection of marine mammals and ocean habitats. They contend that MFA sonar can cause much more serious injuries to marine mammals than the Navy acknowledges, including permanent hearing loss, decompression sickness, and major behavioral disruptions. According to the plaintiffs, several mass strandings of marine mammals (outside of SOCAL) have been "associated" with the use of active sonar. They argue that certain species of marine mammals—such as beaked whales—are uniquely susceptible to injury from active sonar; these injuries would not necessarily be detected by the Navy, given that beaked whales are "very deep divers" that spend little time at the surface. II The procedural history of this case is rather complicated. The Marine Mammal Protection Act of 1 (MMPA), generally prohibits any individual from "taking" a marine mammal, defined as harassing, hunting, capturing, or killing it. 16 U.S. C. 1372(a). The Secretary of Defense may "exempt any action or category of actions" from the MMPA if such actions are "necessary for national defense." In January the Deputy Secretary of Defense—acting for the Secretary—granted the Navy a 2-year exemption from the MMPA for the training exercises at issue in this case. Pet. App. 219a-220a. The exemption was conditioned on the Navy adopting several mitigation procedures, including: (1) training lookouts and officers to watch for marine mammals; (2) requiring at least five lookouts with binoculars on each vessel to watch for anomalies on the water surface (including marine mammals); (3) requiring aircraft and sonar operators to report detected marine mammals in the vicinity of the training exercises; (4) requiring reduction of active sonar transmission levels by 6 dB if a marine mammal is detected within 1,000 yards of the bow of the vessel, or by dB if detected within yards; (5) requiring complete shutdown of active sonar transmission if a marine mammal is detected within 200 yards of the vessel; (6) requiring active sonar to be operated at the "lowest practicable level"; and (7) adopting coordination and reporting procedures. at 222a-230a. The National Environmental Policy Act of 1969 (NEPA), requires federal agencies "to the fullest extent possible" to prepare an environmental impact statement (EIS) for "every major Federal actio[n] significantly affecting the quality of the human " 42 U.S. C. (2000 ed.). An agency is not required to prepare a full EIS if it determines—based on a shorter environmental assessment (EA)—that the proposed action will not have a significant impact on the (a), 1508.13 In February the Navy issued an EA concluding that the 14 SOCAL training exercises scheduled through January 2009 would not have a significant impact on the App. 226-227. The EA divided potential injury to marine mammals into two categories: Level A harassment, defined as the potential destruction or loss of biological tissue (i.e., physical injury), and Level B harassment, defined as temporary injury or disruption of behavioral patterns such as migration, feeding, surfacing, and breeding. The Navy's computer models predicted that the SOCAL training exercises would cause only eight Level A harassments of common dolphins each year, and that even these injuries could be avoided through the Navy's voluntary mitigation measures, given that dolphins travel in large pods easily located by Navy lookouts. The EA also predicted 274 Level B harassments of beaked whales per year, none of which would result in permanent injury. Beaked whales spend little time at the surface, so the precise effect of active sonar on these mammals is unclear. Erring on the side of caution, the Navy classified all projected harassments of beaked whales as Level A. In light of its conclusion that the SOCAL training exercises would not have a significant impact on the environment, the Navy determined that it was unnecessary to prepare a full EIS. See Shortly after the Navy released its EA, the plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the Navy's SOCAL training exercises violated NEPA, the Endangered Species Act of 1973 (ESA), and the Coastal Zone Management Act of 1 (CZMA).[2] The District Court granted plaintiffs' motion for a preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The court held that plaintiffs had "demonstrated a probability of success" on their claims under NEPA and the CZMA. Pet. App. 207a, 215a. The court also determined that equitable relief was appropriate because, under Ninth Circuit precedent, plaintiffs had established at least a "`possibility'" of irreparable harm to the at 217a. Based on scientific studies, declarations from experts, and other evidence in the record, the District Court concluded that there was in fact a "near certainty" of irreparable injury to the environment, and that this injury outweighed any possible harm to the Navy. at 217a-218a. The Navy filed an emergency appeal, and the Ninth Circuit stayed the injunction pending appeal. After hearing oral argument, the Court of Appeals agreed with the District Court that preliminary injunctive relief was appropriate. The appellate court concluded, however, that a blanket injunction prohibiting the Navy from using MFA sonar in SOCAL was overbroad, and remanded the case to the District Court "to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." On remand, the District Court entered a new preliminary injunction allowing the Navy to use MFA sonar only as long as it implemented the following mitigation measures (in addition to the measures the Navy had adopted pursuant to its MMPA exemption): (1) imposing a 12-mile "exclusion zone" from the coastline; (2) using lookouts to conduct additional monitoring for marine mammals; (3) restricting the use of "helicopter-dipping" sonar; (4) limiting the use of MFA sonar in geographic "choke points"; (5) shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel; and (6) powering down MFA sonar by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water. The Navy filed a notice of appeal, challenging only the last two restrictions. The Navy then sought relief from the Executive Branch. The President, pursuant to 16 U.S. C. granted the Navy an exemption from the CZMA. Section 1456(c)(1)(B) permits such exemptions if the activity in question is "in the paramount interest of the United States." The President determined that continuation of the exercises as limited by the Navy was "essential to national security." Pet. App. 232a. He concluded that compliance with the District Court's injunction would "undermine the Navy's ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of strike groups." Simultaneously, the Council on Environmental Quality (CEQ) authorized the Navy to implement "alternative arrangements" to NEPA compliance in light of "emergency circumstances." See[3] The CEQ determined that alternative arrangements were appropriate because the District Court's injunction "create[s] a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable." Pet. App. 238a. Under the alternative arrangements, the Navy would be permitted to conduct its training exercises under the mitigation procedures adopted in conjunction with the exemption from the MMPA. The CEQ also imposed additional notice, research, and reporting requirements. In light of these actions, the Navy then moved to vacate the District Court's injunction with respect to the 2,200-yard shutdown zone and the restrictions on training in surface ducting The District Court refused to do so, and the Court of Appeals affirmed. The Ninth Circuit held that there was a serious question regarding whether the CEQ's interpretation of the "emergency circumstances" regulation was lawful. Specifically, the court questioned whether there was a true "emergency" in this case, given that the Navy has been on notice of its obligation to comply with NEPA from the moment it first planned the SOCAL training exercises. The Court of Appeals concluded that the preliminary injunction was entirely predictable in light of the parties' litigation The court also held that plaintiffs had established a likelihood of success on their claim that the Navy was required to prepare a full EIS for the SOCAL training exercises. The Ninth Circuit agreed with the District Court's holding that the Navy's EA—which resulted in a finding of no significant environmental impact—was "cursory, unsupported by cited evidence, or unconvincing." [4] The Court of Appeals further determined that plaintiffs had carried their burden of establishing a "possibility" of irreparable injury. Even under the Navy's own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals' behavior. at Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy's training exercises was "speculative," since the Navy has never before operated under the procedures required by the District Court. In particular, the court determined that: (1) the 2,200-yard shutdown zone imposed by the District Court was unlikely to affect the Navy's operations, because the Navy often shuts down its MFA sonar systems during the course of training exercises; and (2) the power-down requirement during significant surface ducting conditions was not unreasonable because such conditions are rare, and the Navy has previously certified strike groups that had not trained under such The Ninth Circuit concluded that the District Court's preliminary injunction struck a proper balance between the competing interests at stake. We granted certiorari, 554 U. S. and now reverse and vacate the injunction. III A A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. (slip op., at 12); Amoco Production ; The District Court and the Ninth Circuit concluded that plaintiffs have shown a likelihood of success on the merits of their NEPA claim. The Navy strongly disputes this determination, arguing that plaintiffs' likelihood of success is low because the CEQ reasonably concluded that "emergency circumstances" justified alternative arrangements to NEPA compliance. Plaintiffs' briefs before this Court barely discuss the ground relied upon by the lower courts—that the plain meaning of "emergency circumstances" does not encompass a court order that was "entirely predictable" in light of the parties' litigation Instead, plaintiffs contend that the CEQ's actions violated the separation of powers by readjudicating a factual issue already decided by an Article III court. Moreover, they assert that the CEQ's interpretations of NEPA are not entitled to deference because the CEQ has not been given statutory authority to conduct adjudications. The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a "possibility" of irreparable at -697; ; Earth Island ). The lower courts held that plaintiffs had met this standard because the scientific studies, declarations, and other evidence in the record established to "a near certainty" that the Navy's training exercises would cause irreparable harm to the The Navy challenges these holdings, arguing that plaintiffs must demonstrate a likelihood of irreparable injury— not just a possibility—in order to obtain preliminary relief. On the facts of this case, the Navy contends that plaintiffs' alleged injuries are too speculative to give rise to irreparable injury, given that ever since the Navy's training program began 40 years ago, there has been no documented case of sonar-related injury to marine mammals in SOCAL. And even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests. For their part, plaintiffs assert that they would prevail under any formulation of the irreparable injury standard, because the District Court found that they had established a "near certainty" of irreparable We agree with the Navy that the Ninth Circuit's "possibility" standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los ; Granny Goose Foods, ; ; see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure p. 139 (2d ed. 1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, "the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered"); Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. It is not clear that articulating the incorrect standard affected the Ninth Circuit's analysis of irreparable Although the court referred to the "possibility" standard, and cited Circuit precedent along the same lines, it affirmed the District Court's conclusion that plaintiffs had established a "`near certainty'" of irreparable 518 F.3d, at -697. At the same time, however, the nature of the District Court's conclusion is itself unclear. The District Court originally found irreparable harm from sonar-training exercises generally. But by the time of the District Court's final decision, the Navy challenged only two of six restrictions imposed by the court. See The District Court did not reconsider the likelihood of irreparable harm in light of the four restrictions not challenged by the Navy. This failure is significant in light of the District Court's own statement that the 12-mile exclusion zone from the coastline—one of the unchallenged mitigation restrictions—"would bar the use of MFA sonar in a significant portion of important marine mammal habitat." We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the When the Government conducts an activity, "NEPA itself does not mandate particular results." Instead, NEPA imposes only procedural requirements to "ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Part of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there may be little if any information about prospective environmental harms and potential mitigating measures. Here, in contrast, the plaintiffs are seeking to enjoin—or substantially restrict— training exercises that have been taking place in SOCAL for the last 40 years. And the latest series of exercises were not approved until after the defendant took a "hard look at environmental consequences," at ), as evidenced by the issuance of a detailed, 293-page EA. As explained in the next section, even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. For the same reason, we do not address the lower courts' holding that plaintiffs have also established a likelihood of success on the merits. B A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf, 553 U. S., at (slip op., at 12). In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production 480 U. S., at "In exercising their sound courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." ; see also Railroad Comm'n of In this case, the District Court and the Ninth Circuit significantly understated the burden the preliminary injunction would impose on the Navy's ability to conduct realistic training exercises, and the injunction's consequent adverse impact on the public interest in national defense. This case involves "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force," which are "essentially professional military judgments." We "give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." As the Court emphasized just last Term, "neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people." Boumediene v. Bush, 553 U. S. (slip op., at 68). Here, the record contains declarations from some of the Navy's most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Admiral Gary Roughead—the Chief of Naval Operations—stated that during training exercises: "It is important to stress the ship crews in all dimensions of warfare simultaneously. If one of these training elements were impacted—for example, if effective sonar training were not possible—the training value of the other elements would also be degraded" Pet. App. 342a. Captain Martin May—the Third Fleet's Assistant Chief of Staff for Training and Readiness—emphasized that the use of MFA sonar is "mission-critical." App. 570-571. He described the ability to operate MFA sonar as a "highly perishable skill" that must be repeatedly practiced under realistic During training exercises, MFA sonar operators learn how to avoid sound-reducing "clutter" from ocean floor topography and environmental conditions; they also learn how to avoid interference and how to coordinate their efforts with other sonar operators in the strike group. Several Navy officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court—the 2,200-yard shutdown zone and the requirement that the Navy power down its sonar systems during significant surface ducting See, e.g., Pet. App. 333a (powering down in presence of surface ducting "unreasonably prevent[s] realistic training"); at 356a (shutdown zone would "result in a significant, adverse impact to realistic training"). We accept these officers' assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation. These interests must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court. Plaintiffs have submitted declarations asserting that they take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats. Plaintiffs contend that the Navy's use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs' ability to study and observe the animals. While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President—the Commander in Chief—has determined that training with active sonar is "essential to national security." Pet. App. 232a. The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question. C 1. Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion. The court's entire discussion of these factors consisted of one (albeit lengthy) sentence: "The Court is also satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." at 217a-218a. As the prior Ninth Circuit panel in this case put it, in staying the District Court's original preliminary injunction, "[t]he district court did not give serious consideration to the public interest factor." F.3d, at 863. The District Court's order on remand did nothing to cure this defect, but simply repeated nearly verbatim the same sentence from its previous order. with Pet. App. 217a-218a. The subsequent Ninth Circuit panel framed its opinion as reviewing the District Court's exercise of -699, but that was barely exercised here. The Court of Appeals held that the balance of equities and the public interest favored the plaintiffs, largely based on its view that the preliminary injunction would not in fact impose a significant burden on the Navy's ability to conduct its training exercises and certify its strike groups. The court deemed the Navy's concerns about the preliminary injunction "speculative" because the Navy had not operated under similar procedures before. But this is almost always the case when a plaintiff seeks injunctive relief to alter a defendant's conduct. The lower courts failed properly to defer to senior Navy officers' specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy's SOCAL training exercises. See Wright & Miller at 167-68 ("The policy against the imposition of judicial restraints prior to an adjudication of the merits becomes more significant when there is reason to believe that the decree will be burdensome"). 2. The preliminary injunction requires the Navy to shut down its MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. The Ninth Circuit stated that the 2,200-yard shutdown zone would not be overly burdensome because sightings of marine mammals during training exercises are relatively rare. But regardless of the frequency of marine mammal sightings, the injunction will greatly increase the size of the shutdown zone. Pursuant to its exemption from the MMPA, the Navy agreed to reduce the power of its MFA sonar at 1,000 yards and yards, and to completely turn off the system yards. Pet. App. 222a-230a. The District Court's injunction does not include a graduated power-down, instead requiring a total shutdown of MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. There is an exponential relationship between radius length and surface area (Area = π r2). Increasing the radius of the shutdown zone from 200 to 2,200 yards would accordingly expand the surface area of the shutdown zone by a factor of over 0 (from 125,664 square yards to 15,205,308 square yards). The lower courts did not give sufficient weight to the views of several top Navy officers, who emphasized that because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days' worth of training. at 344a. Limiting the number of sonar shutdowns is particularly important during the Joint Tactical Force Exercises, which usually last for less than two weeks. Admiral Bird explained that the 2,200-yard shutdown zone would cause operational commanders to "lose awareness of the tactical situation through the constant stopping and starting of MFA [sonar]." at 332a; see also at 356a ("It may take days to get to the pivotal attack in antisubmarine warfare, but only minutes to confound the results upon which certification is based"). Even if there is a low likelihood of a marine mammal sighting, the preliminary injunction would clearly increase the number of disruptive sonar shutdowns the Navy is forced to perform during its SOCAL training exercises. The Court of Appeals also concluded that the 2,200-yard shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar 27 times during its eight prior training exercises in SOCAL; in several of these cases, the Navy turned off its sonar when marine mammals were spotted well beyond the Navy's selfimposed 200-yard shutdown zone. n. 65. Admiral Locklear—the Commander of the Navy's Third Fleet—stated that any shutdowns beyond the 200-yard zone were voluntary avoidance measures that likely took place at tactically insignificant times; the Ninth Circuit discounted this explanation as not supported by the record. In reaching this conclusion, the Court of Appeals ignored key portions of Admiral Locklear's declaration, in which he stated unequivocally that commanding officers "would not shut down sonar until legally required to do so if in contact with a submarine." Pet. App. 354a-355a. Similarly, if a commanding officer is in contact with a target submarine, "the CO will be expected to continue to use active sonar unless another ship or helicopter can gain contact or if regulatory reasons dictate otherwise." at 355a. The record supports the Navy's contention that its shutdowns of MFA sonar during prior training exercises only occurred during tactically insignificant times; those voluntary shutdowns do not justify the District Court's imposition of a mandatory 2,200-yard shutdown zone. Lastly, the Ninth Circuit stated that a 2,200-yard shutdown zone was feasible because the Navy had previously adopted a 2,000-meter zone for low-frequency active (LFA) sonar. The Court of Appeals failed to give sufficient weight to the fact that LFA sonar is used for long-range detection of enemy submarines, and thus its use and shutdown involve tactical considerations quite different from those associated with MFA sonar. See App. 508 (noting that equating MFA sonar with LFA sonar "is completely misleading and is like comparing 20 degrees Fahrenheit to 20 degrees Celsius"). 3. The Court of Appeals also concluded that the Navy's training exercises would not be significantly affected by the requirement that it power down MFA sonar by 6 dB during significant surface ducting Again, we think the Ninth Circuit understated the burden this requirement would impose on the Navy's ability to conduct realistic training exercises. Surface ducting is a phenomenon in which relatively little sound energy penetrates beyond a narrow layer near the surface of the water. When surface ducting occurs, active sonar becomes more useful near the surface but less useful at greater depths. Pet. App. 299a-300a. Dieselelectric submariners are trained to take advantage of these distortions to avoid being detected by sonar. at 333a. The Ninth Circuit determined that the power-down requirement during surface ducting conditions was unlikely to affect certification of the Navy's strike groups because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such -702. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Admiral Bird explained that the 6 dB powerdown requirement makes the training less valuable because it "exposes [sonar operators] to unrealistically lower levels of mutual interference caused by multiple sonar systems operating together by the ships within the Strike Group." Pet. App. 281a (footnote omitted). Although a 6 dB reduction may not seem terribly significant, decibels are measured on a logarithmic scale, so a 6 dB decrease in power equates to a 75% reduction. at 284a-285a. 4. The District Court acknowledged that "`the imposition of these mitigation measures will require the Navy to alter and adapt the way it conducts antisubmarine warfare training—a substantial challenge. Nevertheless, evidence presented to the Court reflects that the Navy has employed mitigation measures in the past, without sacrificing training objectives.'" Apparently no good deed goes unpunished. The fact that the Navy has taken measures in the past to address concerns about marine mammals—or, for that matter, has elected not to challenge four additional restrictions imposed by the District Court in this case, see —hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals concluded its opinion by stating that "the Navy may return to the district court to request relief on an emergency basis" if the preliminary injunction "actually result[s] in an inability to train and certify sufficient naval forces to provide for the national defense." This is cold comfort to the Navy. The Navy contends that the injunction will hinder efforts to train sonar operators under realistic conditions, ultimately leaving strike groups more vulnerable to enemy submarines. Unlike the Ninth Circuit, we do not think the Navy is required to wait until the injunction "actually result[s] in an inability to train sufficient naval forces for the national defense" before seeking its dissolution. By then it may be too late. IV As noted above, we do not address the underlying merits of plaintiffs' claims. While we have authority to proceed to such a decision at this point, see Munaf, 553 U. S., at (slip op., at 13-14), doing so is not necessary here. In addition, reaching the merits is complicated by the fact that the lower courts addressed only one of several issues raised, and plaintiffs have largely chosen not to defend the decision below on that ground.[5] At the same time, what we have said makes clear that it would be an abuse of to enter a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction. An injunction is a matter of equitable ; it does not follow from success on the merits as a matter of course. Romero-Barcelo, The factors examined above—the balance of equities and consideration of the public interest—are pertinent in assessing the propriety of any injunctive relief, preliminary or permanent. See Amoco Production n. 12 Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security. This is particularly true in light of the fact that the training has been going on for 40 years with no documented episode of harm to a marine mammal. A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy's training in the interim. See, e.g., In the meantime, we see no basis for jeopardizing national security, as the present injunction does. Plaintiffs confirmed at oral argument that the preliminary injunction was "the whole ball game," Tr. of Oral Arg. 33, and our analysis of the propriety of preliminary relief is applicable to any permanent injunction as well. * * * President Theodore Roosevelt explained that "the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed." President's Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the importance of plaintiffs' ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy's need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy. It is so ordered. JUSTICE BREYER, with whom JUSTICE STEVENS joins as to Part I, concurring in part and dissenting in part. As of December the United States Navy planned to engage in a series of 14 antisubmarine warfare training exercises off the southern California coast. The Natural Resources Defense Council, Inc., and others (hereinafter NRDC) brought this case in Federal District Court claiming that the National Environmental Policy Act of 1969 (NEPA) requires the Navy to prepare an environmental impact statement (EIS) (assessing the impact of the exercises on marine mammals) prior to its engaging in the exercises. As the case reaches us, the District Court has found that the NRDC will likely prevail on its demand for an EIS; the Navy has agreed to prepare an EIS; the District Court has forbidden the Navy to proceed with the exercises unless it adopts six mitigating measures; and the Navy has agreed to adopt all but two of those measures. The controversy between the parties now concerns the two measures that the Navy is unwilling to adopt. The first concerns the "shutdown zone," a circle with a ship at the center within which the Navy must try to spot marine mammals and shut down its sonar if one is found. The controverted condition would enlarge the radius of that circle from about one-tenth of a mile (200 yards) to one and one-quarter mile (2,200 yards). The second concerns special ocean conditions called "surface ducting " The controverted condition would require the Navy, when it encounters any such condition, to diminish the sonar's power by 75%. The Court of Appeals affirmed the District Court order that contained these two I We must now decide whether the District Court was legally correct in forbidding the training exercises unless the Navy implemented the two controverted In doing so, I assume, like the Court, that the NRDC will prevail on its demand for an EIS. (Indeed, the Navy is in the process of preparing one.) And, I would ask whether, in imposing these conditions, the District Court properly "balance[d the] harms." See, e.g., Amoco Production Respondents' (hereinafter plaintiffs) argument favoring the District Court injunction is a strong one. As JUST-ICE GINSBURG well points out, see post, at 4-5 (dissenting opinion), the very point of NEPA's insistence upon the writing of an EIS is to force an agency "carefully" to "consider. detailed information concerning significant environmental impacts," while "giv[ing] the public the assurance that the agency `has indeed considered environmental concerns in its decisionmaking process.'" NEPA seeks to assure that when Government officials consider taking action that may affect the environment, they do so fully aware of the relevant environmental considerations. An EIS does not force them to make any particular decision, but it does lead them to take environmental considerations into account when they decide whether, or how, to act. Thus, when a decision to which EIS obligations attach is made without the informed environmental consideration that NEPA requires, much of the harm that NEPA seeks to prevent has already taken place. In this case, for example, the absence of an injunction means that the Navy will proceed with its exercises in the absence of the fuller consideration of environmental effects that an EIS is intended to bring. The absence of an injunction thereby threatens to cause the very environmental harm that a full preaction EIS might have led the Navy to avoid (say, by adopting the two additional mitigation measures that the NRDC proposes). Consequently, if the exercises are to continue, conditions designed to mitigate interim environmental harm may well be appropriate. On the other hand, several features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction imposing the two controverted requirements. First, the evidence of need for the two special conditions is weak or uncertain. The record does show that the exercises as the Navy originally proposed them could harm marine mammals. The District Court found (based on the Navy's study of the matter) that the exercises might cause 466 instances of Level A harm and 170,000 instances of Level B App. to Pet. for Cert. 196a-197a. (The environmental assessment (EA) actually predicted 564 instances of Level A See App. 223-224.) The study defines Level A injury as "any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild" through "destruction or loss of biological tissue," whether "slight to severe." It defines Level B harm as "`any act that disturbs or is likely to disturb a marine mammal by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered'" and describes it as a "short term" and "temporary" "disturbance." The raw numbers seem large. But the parties argue about the extent to which they mean likely The Navy says the classifications and estimates err on the side of caution. (When in doubt about the amount of harm to a mammal, the study assumed the harm would qualify as Level A harassment.) The Navy also points out that, by definition, mammals recover from Level B injuries, often very quickly. It notes that, despite 40 years of naval exercises off the southern California coast, no injured marine mammal has ever been found. App. to Pet. for Cert. 274a-275a. (It adds that dolphins often swim alongside the ships.) At the same time, plaintiffs point to instances where whales have been found stranded. They add that scientific studies have found a connection between those beachings and the Navy's use of sonar, see, e.g., App. 600-602, and the Navy has even acknowledged one stranding where "U. S. Navy midfrequency sonar has been identified as the most plausible contributory source to the stranding event," Given the uncertainty the figures create in respect to the harm caused by the Navy's original training plans, it would seem important to have before us at least some estimate of the harm likely avoided by the Navy's decision not to contest here four of the six mitigating conditions that the District Court ordered. Without such evidence, it is difficult to assess the relevant harm—that is, the environmental harm likely caused by the Navy's exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place. Second, the Navy has filed multiple affidavits from Navy officials explaining in detail the seriousness of the harm that the delay associated with completion of this EIS (approximately one year) would create in respect to the Navy's ability to maintain an adequate national defense. See generally App. to Pet. for Cert. 260a-357a. Taken by themselves, those affidavits make a strong case for the proposition that insistence upon the two additional mitigating conditions would seriously interfere with necessary defense training. The affidavits explain the importance of training in antisubmarine warfare, at 263a; the need to use active sonar to detect enemy submarines, at 266a-267a, App. 566; the complexity of a training exercise involving sonar, App. to Pet. for Cert. 343a; the need for realistic conditions when training exercises take place, at 299a-300a, App. 566; the "cascading" negative "effect" that delay in one important aspect of a set of coordinated training exercises has upon the Navy's ability "to provide combat ready forces," App. to Pet. for Cert. 343a; the cost and disruption that would accompany the adoption of the two additional mitigating conditions that the NRDC seeks, ibid.; the Navy's resulting inability adequately to train personnel, at 278a; the effectiveness of the mammal-protecting measures that the Navy has taken in the past, at 285a-298a; and the reasonable likelihood that the mitigating conditions to which it has agreed will prove adequate, at 296a. Third, and particularly important in my view, the District Court did not explain why it rejected the Navy's affidavit-supported contentions. In its first opinion enjoining the use of sonar, the District Court simply stated: "The Court is satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using [mid-frequency active (MFA)] sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." at 217a-218a. Following remand from the Court of Appeals, the District Court simply repeated, word for word, this same statement. It said: "The Court is satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur (or the public interest would suffer) if Defendants were prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." With respect to the imposition of the 2,200 yard shutdown zone, the District Court noted evidence of the harm that MFA sonar poses to marine mammals, and then concluded that "[t]he Court therefore is persuaded that while the 2200 yard shutdown requirement may protect marine mammals from the harshest of sonar-related consequences, it represents a minimal imposition [on] the Navy's training exercises." The District Court did not there explain the basis for that conclusion. With respect to the imposition of the surface ducting condition, the District Court said nothing about the Navy's interests at all. While a District Court is often free simply to state its conclusion in summary fashion, in this instance neither that conclusion, nor anything else I have found in the District Court's opinion, answers the Navy's documented claims that the two extra conditions the District Court imposed will, in effect, seriously interfere with its ability to carry out necessary training exercises. The first condition requires the Navy to reduce the power of its sonar equipment by 75% when the ship encounters a condition called "surface ducting" that occurs when the presence of layers of water of different temperature make it unusually difficult for sonar operators to determine whether a diesel submarine is hiding below. Rear Admiral John Bird, an expert in submarine warfare, made clear that the 75% power-reduction requirement was equivalent to forbidding any related training. App. to Pet. for Cert. 297a. But he says in paragraph 52 of his declaration: "Training in surface ducting conditions is critical to effective training because sonar operators need to learn how sonar transmissions are altered due to surface ducting and how submarines may take advantage of them." at 299a-300a. The District Court, as far as I can tell, did not even acknowledge in its opinion the Navy's asserted interest in being able to train under these 530 F. Supp. 2d, The second condition requires the Navy to expand the sonar "shutdown" area surrounding a ship (i.e., turn off the sonar if a mammal is spotted in the area) from a circle with a radius of about one-tenth of a mile to a circle with a radius of about one mile and a quarter. Both sides agree that this requirement will lead to more shutdowns. Admiral Gary Roughead, Chief of Naval Operations, states in paragraph 12 of his declaration that this expanded zone requirement "will result in increased interruptions to training exercises, vastly increas[ing] the risk of negating training effectiveness, preventing strike group certification, and disrupting carefully orchestrated deployment plans to meet world-wide operational commitments." App. to Pet. for Cert. 344a. Again, I can find nothing in the District Court's opinion that specifically explains why this is not so. -1120. Fourth, the Court of Appeals sought, through its own thorough examination of the record, to supply the missing explanations. But those explanations are not sufficient. In respect to the surface ducting conditions, the Court of Appeals rejected the Navy's contentions on the ground that those conditions are "rar[e]," and the Navy has certified trainings that did not involve any encounter with those -702. I am not certain, however, why the rarity of the condition supports the District Court's conclusion. Rarity argues as strongly for training when the condition is encountered as it argues for the contrary. In respect to the expansion of the "shutdown" area, the Court of Appeals noted that (1) the Navy in earlier exercises had shut down its sonar when marine mammals were sited within about one-half a mile, (2) the Navy has used a larger shutdown area when engaged in exercises with lower frequency sonar equipment, and (3) foreign navies have used larger shutdown areas. and nn. 63, 67. But the Navy's affidavits state that (1) earlier shutdowns when marine mammals were spotted at farther distances "likely occurred during tactically insignificant times," App. to Pet. for Cert. 356a, (2) ships with low frequency sonar (unlike the sonar here at issue) have equipment that makes it easier to monitor the larger area, particularly by significantly reducing the number of monitoring personnel necessarily involved, and (3) foreign navy experience is not relevant given the potentially different military demands upon those navies, App. 508-509. Finally, the Court of Appeals, mirroring a similar District Court suggestion in the language I have quoted, says that "the exercises in southern California are only a subset of the Navy's training activities involving active sonar." It adds that the Navy's study "shows the Navy is still able to conduct its exercises in alternative locations, in reduced number, or through simulation." n. 69. The Court of Appeals, however, also concluded that the study "provides reasonably detailed justifications for why the Southern California Operating Area is uniquely suited to these exercises, and demonstrates that the Navy would suffer a certain hardship if the considered alternatives were employed instead." Fifth, when the Court of Appeals first heard this case following the District Court's imposition of a broad, absolute injunction, it held that any injunction must be crafted so that the Navy could continue its training exercises. Noting that the Navy had, in the past, been able to use mitigation measures to "reduce the harmful effects of its active sonar," it "vacate[d] the stay and remand[ed] this matter to the district court to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." For the reasons just stated, neither the District Court nor the Court of Appeals has explained why we should reject the Navy's assertions that it cannot effectively conduct its training exercises under the mitigation conditions imposed by the District Court. I would thus vacate the preliminary injunction imposed by the District Court to the extent it has been challenged by the Navy. Neither the District Court nor the Court of Appeals has adequately explained its conclusion that the balance of the equities tips in favor of plaintiffs. Nor do those parts of the record to which the parties have pointed supply the missing explanation. II Nonetheless, as the Court of Appeals held when it first considered this case, the Navy's past use of mitigation conditions makes clear that the Navy can effectively train under some mitigation In the ordinary course, I would remand so the District Court could, pursuant to the Court of Appeals' direction, set forth mitigation conditions that will protect the marine wildlife while also enabling the Navy to carry out its exercises. But, at this point, the Navy has informed us that this set of exercises will be complete by January, at the latest, and an EIS will likely be complete at that point, as well. Thus, by the time the District Court would have an opportunity to impose new conditions, the case could very well be moot. In February of this year, the Court of Appeals stayed the injunction imposed by the District Court—but only pending this Court's resolution of the case. The Court of Appeals concluded that "[i]n light of the short time before the Navy is to commence its next exercise, the importance of the Navy's mission to provide for the national defense and the representation by the Chief of Naval Operations that the district court's preliminary injunction in its current form will `unacceptably risk' effective training and strike group certification and thereby interfere with his statutory responsibility to `organiz[e], train[], and equip[] the Navy,'" interim relief was appropriate, and the court then modified the two mitigation conditions at issue. With respect to the 2,200 yard shutdown zone, it required the Navy to suspend its use of the sonar if a marine mammal is detected within 2,200 yards, except when sonar is being used at a "critical point in the exercise," in which case the amount by which the Navy must power down is proportional to the mammal's proximity to the sonar. at -706 With respect to surface ducting, the Navy is only required to shut down sonar altogether when a marine mammal is detected within meters and the amount by which it is otherwise required to power down is again proportional to the mammal's proximity to the sonar source. at -706. The court believed these conditions would permit the Navy to go forward with its imminently planned exercises while at the same time minimizing the harm to marine wildlife. In my view, the modified conditions imposed by the Court of Appeals in its February stay order reflect the best equitable conditions that can be created in the short time available before the exercises are complete and the EIS is ready. The Navy has been training under these conditions since February, so allowing them to remain in place will, in effect, maintain what has become the status quo. Therefore, I would modify the Court of Appeals' February 29, order so that the provisional conditions it contains remain in place until the Navy's completion of an acceptable EIS.

Justice Ginsburg

dissenting

Winter v. Natural Resources Defense Council, Inc.

2008-11-12

https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145928/

2008-003

The central question in this action under the National Environmental Policy Act of 1969 (NEPA) was whether the Navy must prepare an environmental impact statement (EIS). The Navy does not challenge its obligation to do so, and it represents that the EIS will be complete in January 2009—one month after the instant exercises conclude. If the Navy had completed the EIS before taking action, as NEPA instructs, the parties and the public could have benefited from the environmental analysis— and the Navy's training could have proceeded without interruption. Instead, the Navy acted first, and thus thwarted the very purpose an EIS is intended to serve. To justify its course, the Navy sought dispensation not from Congress, but from an executive council that lacks authority to countermand or revise NEPA's requirements. I would hold that, in imposing manageable measures to mitigate harm until completion of the EIS, the District Court conscientiously balanced the equities and did not abuse its discretion. I In December 2006, the Navy announced its intent to prepare an EIS to address the potential environmental effects of its naval readiness activities in the Southern California (SOCAL) Range Complex. See 71 Fed. Reg. 76639 (2006). These readiness activities include expansion and intensification of naval training, as well as research, development, and testing of various systems and weapons. Id., at 76639, 76640. The EIS process is underway, and the Navy represents that it will be complete in January 2009. Brief for Petitioners 11; Tr. of Oral Arg. 11. In February 2007, seeking to commence training before completion of the EIS, the Navy prepared an Environmental Assessment (EA) for the 14 exercises it planned to undertake in the interim. See App. L to Pet. for Cert. 235a.[1] On February 12, the Navy concluded the EA with a finding of no significant impact. App. 225-226. The same day, the Navy commenced its training exercises. Id., at 227 ("The Proposed Action is hereby implemented."). On March 22, 2007, the Natural Resources Defense Council (NRDC) filed suit in the U. S. District Court for the Central District of California, seeking declaratory and injunctive relief based on the Navy's alleged violations of NEPA and other environmental statutes. As relevant here, the District Court determined that NRDC was likely to succeed on its NEPA claim and that equitable principles warranted preliminary relief. On August 7, 2007, the court enjoined the Navy's use of mid-frequency active (MFA) sonar during the 11 remaining exercises at issue. On August 31, the Court of Appeals for the Ninth Circuit stayed the injunction pending disposition of the Navy's appeal, and the Navy proceeded with two more exercises. In a November 13 order, the Court of Appeals vacated the stay, stating that NRDC had shown "a strong likelihood of success on the merits" and that preliminary injunctive relief was appropriate. 508 F.3d 885, 886 (2007). The Court of Appeals remanded, however, instructing the District Court to provide mitigation measures under which the Navy could conduct its remaining exercises. On remand, the District Court received briefing from both parties. In addition, the court "toured the USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy's sonar training procedures and the feasibility of the parties' proposed mitigation measures. Counsel for both [parties] were present." 530 F. Supp. 2d 1110, 1112 (2008). On January 3, 2008, the District Court entered a modified preliminary injunction imposing six mitigation measures. The court revised the modified injunction slightly on January 10 in response to filings by the Navy, and four days later, denied the Navy's application for a stay pending appeal. On the following day, January 15, the Council on Environmental Quality (CEQ), an advisory body within the Executive Office of the President, responded to the Navy's request for "alternative arrangements" for NEPA compliance. App. L to Pet. for Cert. 233a. The "arrangements" CEQ set out purported to permit the Navy to continue its training without timely environmental review. Id., at 241a-247a. The Navy accepted the arrangements on the same day. App. 228. The Navy then filed an emergency motion in the Court of Appeals requesting immediate vacatur of the District Court's modified injunction. CEQ's action, the Navy urged, eliminated the injunction's legal foundation. In the alternative, the Navy sought a stay of two aspects of the injunction pending its appeal: the 2,200-yard mandatory shutdown zone and the power-down requirement in significant surface ducting conditions, see ante, at 7-8. While targeting in its stay application only two of the six measures imposed by the District Court, the Navy explicitly reserved the right to challenge on appeal each of the six mitigation measures. Responding to the Navy's emergency motion, the Court of Appeals remanded the matter to allow the District Court to determine in the first instance the effect of the intervening executive action. Pending its own consideration of the Navy's motion, the District Court stayed the injunction, and the Navy conducted its sixth exercise. On February 4, after briefing and oral argument, the District Court denied the Navy's motion. The Navy appealed, reiterating its position that CEQ's action eliminated all justification for the injunction. The Navy also argued that vacatur of the entire injunction was required irrespective of CEQ's action, in part because the "conditions imposed, in particular the 2,200 yard mandatory shutdown zone and the six decibel (75%) power-down in significant surface ducting conditions, severely degrade the Navy's training." Brief for Appellants in No. 08-55054 (CA9), p. 15. In the February 29 decision now under review, the Court of Appeals affirmed the District Court's judgment. 518 F.3d 658, 703 (2008). The Navy has continued training in the meantime and plans to complete its final exercise in December 2008. As the procedural history indicates, the courts below determined that an EIS was required for the 14 exercises. The Navy does not challenge that decision in this Court. Instead, the Navy defends its failure to complete an EIS before launching the exercises based upon CEQ's "alternative arrangements"—arrangements the Navy sought and obtained in order to overcome the lower courts' rulings. As explained below, the Navy's actions undermined NEPA and took an extraordinary course. II NEPA "promotes its sweeping commitment" to environmental integrity "by focusing Government and public attention on the environmental effects of proposed agency action." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). "By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Ibid. The EIS is NEPA's core requirement. Department of Transportation v. Public Citizen, 541 U.S. 752, 757 (2004). This Court has characterized the requirement as "action-forcing." Andrus v. Sierra Club, 442 U.S. 347, 350 (1979) (internal quotation marks omitted). Environmental concerns must be "integrated into the very process of agency decisionmaking" and "interwoven into the fabric of agency planning." Id., at 350-351. In addition to discussing potential consequences, an EIS must describe potential mitigation measures and alternatives to the proposed course of action. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-352 (1989) (citing 40 CFR §§1508.25(b), 1502.14(f), 1502.16(h), 1505.2(c) (1987)). The EIS requirement "ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." 490 U.S., at 349. "Publication of an EIS . . . also serves a larger informational role." Ibid. It demonstrates that an agency has indeed considered environmental concerns, and "perhaps more significantly, provides a springboard for public comment." Ibid. At the same time, it affords other affected governmental bodies "notice of the expected consequences and the opportunity to plan and implement corrective measures in a timely manner." Id., at 350. In light of these objectives, the timing of an EIS is critical. CEQ regulations instruct agencies to "integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values." 40 CFR §1501.2 (1987). An EIS must be prepared "early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made." Andrus, 442 U. S., at 351-352, n. 3 (quoting 40 CFR §1502.5 (1979)). The Navy's publication of its EIS in this case, scheduled to occur after the 14 exercises are completed, defeats NEPA's informational and participatory purposes. The Navy's inverted timing, it bears emphasis, is the very reason why the District Court had to confront the question of mitigation measures at all. Had the Navy prepared a legally sufficient EIS before beginning the SOCAL exercises, NEPA would have functioned as its drafters intended: The EIS process and associated public input might have convinced the Navy voluntarily to adopt mitigation measures, but NEPA itself would not have impeded the Navy's exercises. See Public Citizen, 541 U. S., at 756, 769, n. 2 (noting that NEPA does not mandate particular results, but rather establishes procedural requirements with a "focus on improving agency decisionmaking"). The Navy had other options. Most importantly, it could have requested assistance from Congress. The Government has sometimes obtained congressional authorization to proceed with planned activities without fulfilling NEPA's requirements. See, e.g., Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Pub. L. 106-398, §317, 114 Stat. 1654A-57 (exempting the military from preparing a programmatic EIS for low-level flight training); 42 U.S. C. §10141(c) (exempting the Environmental Protection Agency from preparing an EIS for the development of criteria for handling spent nuclear fuel and high-level radioactive waste); 43 U.S. C. §1652(d) (exempting construction of the trans-Alaska oil pipeline from further NEPA compliance). Rather than resorting to Congress, the Navy "sought relief from the Executive Branch." Ante, at 8. On January 10, 2008, the Navy asked CEQ, adviser to the President, to approve alternative arrangements for NEPA compliance pursuant to 40 CFR §1506.11 (1987). App. L to Pet. for Cert. 233a; see ante, at 8, n. 3. The next day, the Navy submitted supplementary material to CEQ, including the Navy's EA and after-action reports, the District Court's orders, and two analyses by the National Marine Fisheries Service (NMFS). App. L to Pet. for Cert. 237a-238a. Neither the Navy nor CEQ notified NRDC, and CEQ did not request or consider any of the materials underlying the District Court orders it addressed. Four days later, on January 15, the Chairman of CEQ issued a letter to the Secretary of the Navy. Repeating the Navy's submissions with little independent analysis, the letter stated that the District Court's orders posed risks to the Navy's training exercises. See id., at 238a ("You have explained that the training restrictions set forth in the . . . injunctive orders prevent the Navy from providing Strike Groups with adequate proficiency training and create a substantial risk of precluding certification of the Strike Groups as combat ready."). The letter continued: "Discussions between our staffs, your letter and supporting documents, and the classified declaration and briefings I have received, have clearly determined that the Navy cannot ensure the necessary training to certify strike groups for deployment under the terms of the injunctive orders. Based on the record supporting your request . . . CEQ has concluded that the Navy must be able to conduct the [exercises] . . . in a timeframe that does not provide sufficient time to complete an EIS. Therefore, emergency circumstances are present for the nine exercises and alternative arrangements for compliance with NEPA under CEQ regulation 40 C.F.R. §1506.11 are warranted." Id., at 240a. The alternative arrangements CEQ set forth do not vindicate NEPA's objectives. The arrangements provide for "public participation measures," which require the Navy to provide notices of the alternative arrangements. Id., at 242a. The notices must "seek input on the process for reviewing post-exercise assessments" and "include an offer to meet jointly with Navy representatives . . . and CEQ to discuss the alternative arrangements." Id., at 242a-243a. The alternative arrangements also describe the Navy's existing research and mitigation efforts. Id., at 243a-247a. CEQ's hasty decision on a one-sided record is no substitute for the District Court's considered judgment based on a two-sided record.[2] More fundamentally, even an exemplary CEQ review could not have effected the short circuit the Navy sought. CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS. NEPA established CEQ to assist and advise the President on environmental policy, 42 U.S. C. §4342, and a 1977 Executive Order charged CEQ with issuing regulations to federal agencies for implementation of NEPA's procedural provisions, Exec. Order No. 11991, 3 CFR 123 (1977 Comp.). This Court has recognized that CEQ's regulations are entitled to "substantial deference," Robertson, 490 U. S., at 355, and §1506.11 indicates that CEQ may play an important consultative role in emergency circumstances, but we have never suggested that CEQ could eliminate the statute's command. If the Navy sought to avoid its NEPA obligations, its remedy lay in the Legislative Branch. The Navy's alternative course—rapid, self-serving resort to an office in the White House—is surely not what Congress had in mind when it instructed agencies to comply with NEPA "to the fullest extent possible." 42 U.S. C. §4332.[3] III A Flexibility is a hallmark of equity jurisdiction. "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)). Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a "sliding scale," sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3, p. 195 (2d ed. 1995). This Court has never rejected that formulation, and I do not believe it does so today. Equity's flexibility is important in the NEPA context. Because an EIS is the tool for uncovering environmental harm, environmental plaintiffs may often rely more heavily on their probability of success than the likelihood of harm. The Court is correct that relief is not warranted "simply to prevent the possibility of some remote future injury." Ante, at 12 (quoting Wright & Miller, supra, §2948.1, at 155). "However, the injury need not have been inflicted when application is made or be certain to occur; a strong threat of irreparable injury before trial is an adequate basis." Wright & Miller, supra, §2948.1, at 155-156 (footnote omitted). I agree with the District Court that NRDC made the required showing here. B The Navy's own EA predicted substantial and irreparable harm to marine mammals. Sonar is linked to mass strandings of marine mammals, hemorrhaging around the brain and ears, acute spongiotic changes in the central nervous system, and lesions in vital organs. E.g., App. 600-602; 360-362; 478-479. As the Ninth Circuit noted, the EA predicts that the Navy's "use of MFA sonar in the SOCAL exercises will result in 564 instances of physical injury including permanent hearing loss (Level A harassment) and nearly 170,000 behavioral disturbances (Level B harassment), more than 8,000 of which would also involve temporary hearing loss." 518 F.3d, at 696; see App. 223-224. Within those totals, "the EA predicts 436 Level A harassments of Cuvier's beaked whales, of which, according to NOAA, as few as 1,121 may exist in California, Oregon and Washington combined. Likewise, the EA predicts 1,092 Level B harassments of bottlenose dolphins, of which only 5,271 may exist in the California Coastal and Offshore stocks." 518 F.3d, at 691-692. The majority acknowledges the lower courts' findings, ante, at 9, but also states that the EA predicted "only eight Level A harassments of common dolphins each year" and "274 Level B harassments of beaked whales per year, none of which would result in permanent injury," ante, at 6. Those numbers do not fully capture the EA's predictions. The EA classified the harassments of beaked whales as Level A, not Level B. The EA does indeed state that "modeling predicts non-injurious Level B exposures." App. 185. But, as the majority correctly notes, ante, at 6, the EA also states that "all beaked whale exposures are counted as Level A," App. 185. The EA counted the predicted exposures as Level A "[b]y Navy policy developed in conjunction with NMFS." Id., at 200. The record reflects "the known sensitivity of these species to tactical sonar," id., at 365 (National Oceanic and Atmospheric Administration letter), and as the majority acknowledges, beaked whales are difficult to study, ante, at 6. Further, as the Ninth Circuit noted, "the EA . . . maintained that the methodology used was based on the `best available science.'" 518 F.3d, at 669.[4] In my view, this likely harm—170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to a beaked whale population numbering only 1,121—cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy's 14 training exercises. There is no doubt that the training exercises serve critical interests. But those interests do not authorize the Navy to violate a statutory command, especially when recourse to the Legislature remains open. "Of course, military interests do not always trump other considerations, and we have not held that they do." Ante, at 16. In light of the likely, substantial harm to the environment, NRDC's almost inevitable success on the merits of its claim that NEPA required the Navy to prepare an EIS, the history of this litigation, and the public interest, I cannot agree that the mitigation measures the District Court imposed signal an abuse of discretion. Cf. Amoco Production Co. v. Gambell, 480 U.S. 531, 545 (1987) ("Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment."). For the reasons stated, I would affirm the judgment of the Ninth Circuit.

The central question in this action under the National Environmental Policy Act of 1969 (NEPA) was whether the Navy must prepare an environmental impact statement (EIS). The Navy does not challenge its obligation to do so, and it represents that the EIS will be complete in January 2009—one month after the instant exercises conclude. If the Navy had completed the EIS before taking action, as NEPA instructs, the parties and the public could have benefited from the environmental analysis— and the Navy's training could have proceeded without interruption. Instead, the Navy acted first, and thus thwarted the very purpose an EIS is intended to serve. To justify its course, the Navy sought dispensation not from Congress, but from an executive council that lacks authority to countermand or revise NEPA's requirements. I would hold that, in imposing manageable measures to mitigate harm until completion of the EIS, the District Court conscientiously balanced the equities and did not abuse its discretion. I In December 2006, the Navy announced its intent to prepare an EIS to address the potential environmental effects of its naval readiness activities in the Southern California (SOCAL) Range Complex. See (2006). These readiness activities include expansion and intensification of naval training, as well as research, development, and testing of various systems and weapons. The EIS process is underway, and the Navy represents that it will be complete in January 2009. Brief for Petitioners 11; Tr. of Oral Arg. 11. In February seeking to commence training before completion of the EIS, the Navy prepared an Environmental Assessment (EA) for the 14 exercises it planned to undertake in the interim. See App. L to Pet. for Cert. 235a.[1] On February 12, the Navy concluded the EA with a finding of no significant impact. App. 225-226. The same day, the Navy commenced its training exercises. On March 22, the Natural Resources Defense Council (NRDC) filed suit in the U. S. District Court for the Central District of California, seeking declaratory and injunctive relief based on the Navy's alleged violations of NEPA and other environmental statutes. As relevant here, the District Court determined that NRDC was likely to succeed on its NEPA claim and that equitable principles warranted preliminary relief. On August 7, the court enjoined the Navy's use of mid-frequency active (MFA) sonar during the 11 remaining exercises at issue. On August 31, the Court of Appeals for the Ninth Circuit stayed the injunction pending disposition of the Navy's appeal, and the Navy proceeded with two more exercises. In a November 13 order, the Court of Appeals vacated the stay, stating that NRDC had shown "a strong likelihood of success on the merits" and that preliminary injunctive relief was appropriate. The Court of Appeals remanded, however, instructing the District Court to provide mitigation measures under which the Navy could conduct its remaining exercises. On remand, the District Court received briefing from both parties. In addition, the court "toured the USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy's sonar training procedures and the feasibility of the parties' proposed mitigation measures. Counsel for both [parties] were present." On January 3, the District Court entered a modified preliminary injunction imposing six mitigation measures. The court revised the modified injunction slightly on January 10 in response to filings by the Navy, and four days later, denied the Navy's application for a stay pending appeal. On the following day, January 15, the Council on Environmental Quality (CEQ), an advisory body within the Executive Office of the President, responded to the Navy's request for "alternative arrangements" for NEPA compliance. App. L to Pet. for Cert. 233a. The "arrangements" CEQ set out purported to permit the Navy to continue its training without timely environmental review. at 241a-247a. The Navy accepted the arrangements on the same day. App. 228. The Navy then filed an emergency motion in the Court of Appeals requesting immediate vacatur of the District Court's modified injunction. CEQ's action, the Navy urged, eliminated the injunction's legal foundation. In the alternative, the Navy sought a stay of two aspects of the injunction pending its appeal: the 2,200-yard mandatory shutdown zone and the power-down requirement in significant surface ducting conditions, see ante, at 7-8. While targeting in its stay application only two of the six measures imposed by the District Court, the Navy explicitly reserved the right to challenge on appeal each of the six mitigation measures. Responding to the Navy's emergency motion, the Court of Appeals remanded the matter to allow the District Court to determine in the first instance the effect of the intervening executive action. Pending its own consideration of the Navy's motion, the District Court stayed the injunction, and the Navy conducted its sixth exercise. On February 4, after briefing and oral argument, the District Court denied the Navy's motion. The Navy appealed, reiterating its position that CEQ's action eliminated all justification for the injunction. The Navy also argued that vacatur of the entire injunction was required irrespective of CEQ's action, in part because the "conditions imposed, in particular the 2,200 yard mandatory shutdown zone and the six decibel (75%) power-down in significant surface ducting conditions, severely degrade the Navy's training." Brief for Appellants in No. 08-55054 (CA9), p. 15. In the February 29 decision now under review, the Court of Appeals affirmed the District Court's judgment. The Navy has continued training in the meantime and plans to complete its final exercise in December As the procedural history indicates, the courts below determined that an EIS was required for the 14 exercises. The Navy does not challenge that decision in this Court. Instead, the Navy defends its failure to complete an EIS before launching the exercises based upon CEQ's "alternative arrangements"—arrangements the Navy sought and obtained in order to overcome the lower courts' rulings. As explained below, the Navy's actions undermined NEPA and took an extraordinary course. II NEPA "promotes its sweeping commitment" to environmental integrity "by focusing Government and public attention on the environmental effects of proposed agency action." "By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." The EIS is NEPA's core requirement. Department of This Court has characterized the requirement as "action-forcing." Environmental concerns must be "integrated into the very process of agency decisionmaking" and "interwoven into the fabric of agency planning." at -351. In addition to discussing potential consequences, an EIS must describe potential mitigation measures and alternatives to the proposed course of action. See The EIS requirement "ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." "Publication of an EIS also serves a larger informational role." It demonstrates that an agency has indeed considered environmental concerns, and "perhaps more significantly, provides a springboard for public comment." At the same time, it affords other affected governmental bodies "notice of the expected consequences and the opportunity to plan and implement corrective measures in a timely manner." at In light of these objectives, the timing of an EIS is critical. CEQ regulations instruct agencies to "integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values." An EIS must be prepared "early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made." 442 U. S., at n. 3 ). The Navy's publication of its EIS in this case, scheduled to occur after the 14 exercises are completed, defeats NEPA's informational and participatory purposes. The Navy's inverted timing, it bears emphasis, is the very reason why the District Court had to confront the question of mitigation measures at all. Had the Navy prepared a legally sufficient EIS before beginning the SOCAL exercises, NEPA would have functioned as its drafters intended: The EIS process and associated public input might have convinced the Navy voluntarily to adopt mitigation measures, but NEPA itself would not have impeded the Navy's exercises. See Public 769, n. 2 The Navy had other options. Most importantly, it could have requested assistance from Congress. The Government has sometimes obtained congressional authorization to proceed with planned activities without fulfilling NEPA's requirements. See, e.g., Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, 114 Stat. 1654A-57 (exempting the military from preparing a programmatic EIS for low-level flight training); 42 U.S. C. (exempting the Environmental Protection Agency from preparing an EIS for the development of criteria for handling spent nuclear fuel and high-level radioactive waste); 43 U.S. C. (exempting construction of the trans-Alaska oil pipeline from further NEPA compliance). Rather than resorting to Congress, the Navy "sought relief from the Executive Branch." Ante, at 8. On January 10, the Navy asked CEQ, adviser to the President, to approve alternative arrangements for NEPA compliance pursuant to App. L to Pet. for Cert. 233a; see ante, at 8, n. 3. The next day, the Navy submitted supplementary material to CEQ, including the Navy's EA and after-action reports, the District Court's orders, and two analyses by the National Marine Fisheries Service (NMFS). App. L to Pet. for Cert. 237a-238a. Neither the Navy nor CEQ notified NRDC, and CEQ did not request or consider any of the materials underlying the District Court orders it addressed. Four days later, on January 15, the Chairman of CEQ issued a letter to the Secretary of the Navy. Repeating the Navy's submissions with little independent analysis, the letter stated that the District Court's orders posed risks to the Navy's training exercises. See at 238a ("You have explained that the training restrictions set forth in the injunctive orders prevent the Navy from providing Strike Groups with adequate proficiency training and create a substantial risk of precluding certification of the Strike Groups as combat ready."). The letter continued: "Discussions between our staffs, your letter and supporting documents, and the classified declaration and briefings I have received, have clearly determined that the Navy cannot ensure the necessary training to certify strike groups for deployment under the terms of the injunctive orders. Based on the record supporting your request CEQ has concluded that the Navy must be able to conduct the [exercises] in a timeframe that does not provide sufficient time to complete an EIS. Therefore, emergency circumstances are present for the nine exercises and alternative arrangements for compliance with NEPA under CEQ regulation are warranted." at 240a. The alternative arrangements CEQ set forth do not vindicate NEPA's objectives. The arrangements provide for "public participation measures," which require the Navy to provide notices of the alternative arrangements. at 242a. The notices must "seek input on the process for reviewing post-exercise assessments" and "include an offer to meet jointly with Navy representatives and CEQ to discuss the alternative arrangements." at 242a-243a. The alternative arrangements also describe the Navy's existing research and mitigation efforts. at 243a-247a. CEQ's hasty decision on a one-sided record is no substitute for the District Court's considered judgment based on a two-sided record.[2] More fundamentally, even an exemplary CEQ review could not have effected the short circuit the Navy sought. CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS. NEPA established CEQ to assist and advise the President on environmental policy, 42 U.S. C. and a 1977 Executive Order charged CEQ with issuing regulations to federal agencies for implementation of NEPA's procedural provisions, Exec. Order No. 11991, 3 CFR 123 (1977 Comp.). This Court has recognized that CEQ's regulations are entitled to "substantial deference," and indicates that CEQ may play an important consultative role in emergency circumstances, but we have never suggested that CEQ could eliminate the statute's command. If the Navy sought to avoid its NEPA obligations, its remedy lay in the Legislative Branch. The Navy's alternative course—rapid, self-serving resort to an office in the White House—is surely not what Congress had in mind when it instructed agencies to comply with NEPA "to the fullest extent possible." 42 U.S. C. III A Flexibility is a hallmark of equity jurisdiction. "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it." Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a "sliding scale," sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. 11A C. Wright, A. & M. Kane, Federal Practice and Procedure p. 195 (2d ed. 1995). This Court has never rejected that formulation, and I do not believe it does so today. Equity's flexibility is important in the NEPA context. Because an EIS is the tool for uncovering environmental harm, environmental plaintiffs may often rely more heavily on their probability of success than the likelihood of harm. The Court is correct that relief is not warranted "simply to prevent the possibility of some remote future injury." Ante, at 12 (quoting Wright & at 155). "However, the injury need not have been inflicted when application is made or be certain to occur; a strong threat of irreparable injury before trial is an adequate basis." Wright & at 155-156 (footnote omitted). I agree with the District Court that NRDC made the required showing here. B The Navy's own EA predicted substantial and irreparable harm to marine mammals. Sonar is linked to mass strandings of marine mammals, hemorrhaging around the brain and ears, acute spongiotic changes in the central nervous system, and lesions in vital organs. E.g., App. 600-602; 360-362; 478-479. As the Ninth Circuit noted, the EA predicts that the Navy's "use of MFA sonar in the SOCAL exercises will result in 564 instances of physical injury including permanent hearing loss (Level A harassment) and nearly 170,000 behavioral disturbances (Level B harassment), more than 8,000 of which would also involve temporary hearing loss." ; see App. 223-224. Within those totals, "the EA predicts 436 Level A harassments of Cuvier's beaked whales, of which, according to NOAA, as few as 1,121 may exist in California, Oregon and Washington combined. Likewise, the EA predicts 1,092 Level B harassments of bottlenose dolphins, of which only 5,271 may exist in the California Coastal and Offshore stocks." -692. The majority acknowledges the lower courts' findings, ante, at 9, but also states that the EA predicted "only eight Level A harassments of common dolphins each year" and "274 Level B harassments of beaked whales per year, none of which would result in permanent injury," ante, at 6. Those numbers do not fully capture the EA's predictions. The EA classified the harassments of beaked whales as Level A, not Level B. The EA does indeed state that "modeling predicts non-injurious Level B exposures." App. 185. But, as the majority correctly notes, ante, at 6, the EA also states that "all beaked whale exposures are counted as Level A," App. 185. The EA counted the predicted exposures as Level A "[b]y Navy policy developed in conjunction with NMFS." The record reflects "the known sensitivity of these species to tactical sonar," and as the majority acknowledges, beaked whales are difficult to study, ante, at 6. Further, as the Ninth Circuit noted, "the EA maintained that the methodology used was based on the `best available science.'"[4] In my view, this likely harm—170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to a beaked whale population numbering only 1,121—cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy's 14 training exercises. There is no doubt that the training exercises serve critical interests. But those interests do not authorize the Navy to violate a statutory command, especially when recourse to the Legislature remains open. "Of course, military interests do not always trump other considerations, and we have not held that they do." Ante, at 16. In light of the likely, substantial harm to the environment, NRDC's almost inevitable success on the merits of its claim that NEPA required the Navy to prepare an EIS, the history of this litigation, and the public interest, I cannot agree that the mitigation measures the District Court imposed signal an abuse of discretion. Cf. Amoco Production ("Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment."). For the reasons stated, I would affirm the judgment of the Ninth Circuit.

Justice Ginsburg

majority

New York Times Co. v. Tasini

2001-06-25

https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/

https://www.courtlistener.com/api/rest/v3/clusters/118457/

2000-083

This copyright case concerns the rights of freelance authors and a presumptive privilege of their publishers. The litigation was initiated by six freelance authors and relates to articles they contributed to three print periodicals (two newspapers and one magazine). Under agreements with the periodicals' publishers, but without the freelancers' consent, two computer database companies placed copies of the freelancers' articlesÔÇöalong with all other articles from the periodicals in which the freelancers' work appearedÔÇöinto three databases. Whether written by a freelancer or staff member, each article is presented to, and retrievable by, the user in isolation, clear of the context the original print publication presented. The freelance authors' complaint alleged that their copyrights had been infringed by the inclusion of their articles in the databases. The publishers, in response, relied on the *488 privilege of reproduction and distribution accorded them by ž 201(c) of the Copyright Act, which provides: "Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." 17 U.S. C. ž 201(c). Specifically, the publishers maintained that, as copyright owners of collective works, i. e., the original print publications, they had merely exercised "the privilege" ž 201(c) accords them to "reproduc[e] and distribut[e]" the author's discretely copyrighted contribution. In agreement with the Second Circuit, we hold that ž 201(c) does not authorize the copying at issue here. The publishers are not sheltered by ž 201(c), we conclude, because the databases reproduce and distribute articles standing alone and not in context, not "as part of that particular collective work" to which the author contributed, "as part of . . . any revision" thereof, or "as part of . . . any later collective work in the same series." Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors. I A Respondents Jonathan Tasini, Mary Kay Blakely, Barbara Garson, Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford are authors (Authors). Between 1990 and 1993, they wrote the 21 articles (Articles) on which this dispute centers. Tasini, Mifflin, and Blakely contributed 12 Articles to The New York Times, the daily newspaper published by *489 petitioner The New York Times Company (Times). Tasini, Garson, Robbins, and Whitford wrote eight Articles for Newsday, another New York daily paper, published by petitioner Newsday, Inc. (Newsday). Whitford also contributed one Article to Sports Illustrated, a weekly magazine published by petitioner Time, Inc. (Time). The Authors registered copyrights in each of the Articles. The Times, Newsday, and Time (Print Publishers) registered collective work copyrights in each periodical edition in which an Article originally appeared. The Print Publishers engaged the Authors as independent contractors (freelancers) under contracts that in no instance secured consent from an Author to placement of an Article in an electronic database.[1] At the time the Articles were published, all three Print Publishers had agreements with petitioner LEXIS/NEXIS (formerly Mead Data Central Corp.), owner and operator of NEXIS, a computerized database that stores information in a text-only format. NEXIS contains articles from hundreds of journals (newspapers and periodicals) spanning many years. The Print Publishers have licensed to LEXIS/ NEXIS the text of articles appearing in the three periodicals. The licenses authorize LEXIS/NEXIS to copy and sell any portion of those texts. Pursuant to the licensing agreements, the Print Publishers regularly provide LEXIS/NEXIS with a batch of all the articles published in each periodical edition. The Print Publisher codes each article to facilitate computerized retrieval, then transmits it in a separate file. After further coding, LEXIS/NEXIS places the article in the central discs of its database. *490 Subscribers to NEXIS, accessing the system through a computer, may search for articles by author, subject, date, publication, headline, key term, words in text, or other criteria. Responding to a search command, NEXIS scans the database and informs the user of the number of articles meeting the user's search criteria. The user then may view, print, or download each of the articles yielded by the search. The display of each article includes the print publication (e. g., The New York Times), date (September 23, 1990), section (Magazine), initial page number (26), headline or title ("Remembering Jane"), and author (Mary Kay Blakely). Each article appears as a separate, isolated "story"ÔÇöwithout any visible link to the other stories originally published in the same newspaper or magazine edition. NEXIS does not contain pictures or advertisements, and it does not reproduce the original print publication's formatting features such as headline size, page placement (e. g., above or below the fold for newspapers), or location of continuation pages. The Times (but not Newsday or Time) also has licensing agreements with petitioner University Microfilms International (UMI). The agreements authorize reproduction of Times materials on two CDÔÇöROM products, the New York Times OnDisc (NYTO) and General Periodicals OnDisc (GPO). Like NEXIS, NYTO is a text-only system. Unlike NEXIS, NYTO, as its name suggests, contains only the Times. Pursuant to a three-way agreement, LEXIS/ NEXIS provides UMI with computer files containing each article as transmitted by the Times to LEXIS/NEXIS. Like LEXIS/NEXIS, UMI marks each article with special codes. UMI also provides an index of all the articles in NYTO. Articles appear in NYTO in essentially the same way they appear in NEXIS, i. e., with identifying information (author, title, etc.), but without original formatting or accompanying images. *491 GPO contains articles from approximately 200 publications or sections of publications. Unlike NEXIS and NYTO, GPO is an image-based, rather than a text-based, system. The Times has licensed GPO to provide a facsimile of the Times' Sunday Book Review and Magazine. UMI "burns" images of each page of these sections onto CDÔÇöROMs. The CDÔÇö ROMs show each article exactly as it appeared on printed pages, complete with photographs, captions, advertisements, and other surrounding materials. UMI provides an index and abstracts of all the articles in GPO. Articles are accessed through NYTO and GPO much as they are accessed through NEXIS. The user enters a search query using similar criteria (e. g., author, headline, date). The computer program searches available indexes and abstracts, and retrieves a list of results matching the query. The user then may view each article within the search result, and may print the article or download it to a disc. The display of each article provides no links to articles appearing on other pages of the original print publications.[2] B On December 16, 1993, the Authors filed this civil action in the United States District Court for the Southern District of New York. The Authors alleged that their copyrights were infringed when, as permitted and facilitated by the Print Publishers, LEXIS/NEXIS and UMI (Electronic Publishers) placed the Articles in the NEXIS, NYTO, and GPO databases (Databases). The Authors sought declaratory *492 and injunctive relief, and damages. In response to the Authors' complaint, the Print and Electronic Publishers raised the reproduction and distribution privilege accorded collective work copyright owners by 17 U.S. C. ž 201(c). After discovery, both sides moved for summary judgment. The District Court granted summary judgment for the Publishers, holding that ž 201(c) shielded the Database reproductions. 972 F. Supp. 804, 806 (1997). The privilege conferred by ž 201(c) is transferable, the court first concluded, and therefore could be conveyed from the original Print Publishers to the Electronic Publishers. Id., at 816. Next, the court determined, the Databases reproduced and distributed the Authors' works, in ž 201(c)'s words, "as part of . . . [a] revision of that collective work" to which the Authors had first contributed. To qualify as "revisions," according to the court, works need only "preserve some significant original aspect of [collective works]ÔÇöwhether an original selection or an original arrangement." Id., at 821. This criterion was met, in the District Court's view, because the Databases preserved the Print Publishers' "selection of articles" by copying all of the articles originally assembled in the periodicals' daily or weekly issues. Id., at 823. The Databases "highlight[ed]" the connection between the articles and the print periodicals, the court observed, by showing for each article not only the author and periodical, but also the print publication's particular issue and page numbers. Id., at 824 ("[T]he electronic technologies not only copy the publisher defendants' complete original `selection' of articles, they tag those articles in such a way that the publisher defendants' original selection remains evident on line."). The Authors appealed, and the Second Circuit reversed. 206 F.3d 161 (1999). The Court of Appeals granted summary judgment for the Authors on the ground that the Databases were not among the collective works covered by ž 201(c), and specifically, were not "revisions" of the periodicals in which the Articles first appeared. Id., at 167-170. Just as ž 201(c) does not "permit a Publisher to sell a hard *493 copy of an Author's article directly to the public even if the Publisher also offered for individual sale all of the other articles from the particular edition," the court reasoned, so ž 201(c) does not allow a Publisher to "achieve the same goal indirectly" through computer databases. Id., at 168. In the Second Circuit's view, the Databases effectively achieved this result by providing multitudes of "individually retrievable" articles. Ibid. As stated by the Court of Appeals, the Databases might fairly be described as containing "new antholog[ies] of innumerable" editions or publications, but they do not qualify as "revisions" of particular editions of periodicals in the Databases. Id., at 169. Having concluded that ž 201(c) "does not permit the Publishers," acting without the author's consent, "to license individually copyrighted works for inclusion in the electronic databases," the court did not reach the question whether the ž 201(c) privilege is transferable. Id., at 165, and n. 2. We granted certiorari to determine whether the copying of the Authors' Articles in the Databases is privileged by 17 U.S. C. ž 201(c). 531 U.S. 978 (2000). Like the Court of Appeals, we conclude that the ž 201(c) privilege does not override the Authors' copyrights, for the Databases do not reproduce and distribute the Articles as part of a collective work privileged by ž 201(c). Accordingly, and again like the Court of Appeals, we find it unnecessary to determine whether the privilege is transferable. II Under the Copyright Act, as amended in 1976, "[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression .. . from which they can be perceived, reproduced, or otherwise communicated." 17 U.S. C. ž 102(a). When, as in this case, a freelance author has contributed an article to a "collective work" such as a newspaper or magazine, see ž 101 (defining "collective work"), the statute recognizes two distinct copyrighted works: "Copyright in each separate contribution to a collec- *494 tive work is distinct from copyright in the collective work as a whole . . . ." ž 201(c) (emphasis added). Copyright in the separate contribution "vests initially in the author of the contribution" (here, the freelancer). Ibid. Copyright in the collective work vests in the collective author (here, the newspaper or magazine publisher) and extends only to the creative material contributed by that author, not to "the preexisting material employed in the work," ž 103(b). See also Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 358 (1991) (copyright in "compilation"ÔÇöa term that includes "collective works," 17 U.S. C. ž 101ÔÇöis limited to the compiler's original "selection, coordination, and arrangement"). Prior to the 1976 revision, as the courts below recognized, see 206 F.3d, at 168; 972 F. Supp., at 815, authors risked losing their rights when they placed an article in a collective work. Pre-1976 copyright law recognized a freelance author's copyright in a published article only when the article was printed with a copyright notice in the author's name. See Copyright Act of 1909, ž 18, 35 Stat. 1079. When publishers, exercising their superior bargaining power over authors, declined to print notices in each contributor's name, the author's copyright was put in jeopardy. See Kaminstein, Divisibility of Copyrights, Study No. 11, in Copyright Law Revision Studies Nos. 11-13, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 18 (1960). The author did not have the option to assign only the right of publication in the periodical; such a partial assignment was blocked by the doctrine of copyright "indivisibility." See id., at 11. Thus, when a copyright notice appeared only in the publisher's name, the author's work would fall into the public domain, unless the author's copyright, in its entirety, had passed to the publisher. See id., at 18. Such complete transfer might be accomplished by a contract, perhaps one with a provision, not easily enforced, for later retransfer of rights back to the author. See id., at 20-22. Or, absent a specific contract, a court might find that an author had tacitly *495 transferred the entire copyright to a publisher, in turn deemed to hold the copyright in "trust" for the author's benefit. See id., at 18-19; see generally 3 M. Nimmer & D. Nimmer, Copyright ž 10.01[C][2], pp. 10-12 to 10-14 (2000). In the 1976 revision, Congress acted to "clarify and improve [this] confused and frequently unfair legal situation with respect to rights in contributions." H. R. Rep. No. 94ÔÇö 1476, p. 122 (1976) (hereinafter H. R. Rep.).[3] The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete "exclusive rights," 17 U.S. C. ž 106 (1994 ed. and Supp. V),[4] each of which "may be transferred *496 . . . and owned separately," ž 201(d)(2).[5] Congress also provided, in ž 404(a), that "a single notice applicable to the collective work as a whole is sufficient" to protect the rights of freelance contributors. And in ž 201(c), Congress codified the discrete domains of "[c]opyright in each separate contribution to a collective work" and "copyright in the collective work as a whole." Together, ž 404(a) and ž 201(c) "preserve the author's copyright in a contribution even if the contribution does not bear a separate notice in the author's name, and without requiring any unqualified transfer of rights to the owner of the collective work." H. R. Rep. 122. Section 201(c) both describes and circumscribes the "privilege" a publisher acquires regarding an author's contribution to a collective work: "In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." (Emphasis added.) A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only "as part of" any (or all) of three categories of collective works: (a) "that collective work" to which the author contributed her work, (b) "any revision of that collective work," or (c) "any later collective work in the same series." In accord with Congress' prescription, a "publishing company could reprint *497 a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work." H. R. Rep. 122-123. Essentially, ž 201(c) adjusts a publisher's copyright in its collective work to accommodate a freelancer's copyright in her contribution. If there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing initial publication, the freelancer may also sell the article to others. Cf. Stewart v. Abend, 495 U.S. 207, 229 (1990) ("[w]hen an author produces a work which later commands a higher price in the market than the original bargain provided, the copyright statute [i. e., the separate renewal term of former 17 U.S. C. ž 24] is designed to provide the author the power to negotiate for the realized value of the work"); id., at 230 (noting author's "inalienable termination right" under current 17 U.S. C. žž 203, 302 (1994 ed. and Supp. V)). It would scarcely "preserve the author's copyright in a contribution" as contemplated by Congress, H. R. Rep. 122, if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the author's contribution in isolation or within new collective works. See Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 Brooklyn L. Rev. 473, 484 (2000).[6] *498 III In the instant case, the Authors wrote several Articles and gave the Print Publishers permission to publish the Articles in certain newspapers and magazines. It is undisputed that the Authors hold copyrights and, therefore, exclusive rights in the Articles.[7] It is clear, moreover, that the Print and Electronic Publishers have exercised at least some rights that ž 106 initially assigns exclusively to the Authors: LEXIS/NEXIS' central discs and UMI's CDÔÇöROMs "reproduce . . . copies" of the Articles, ž 106(1); UMI, by selling those CDÔÇöROMs, and LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, "distribute copies" of the Articles "to the public by sale," ž 106(3); and the Print Publishers, through contracts licensing the production of copies in the Databases, "authorize" reproduction and distribution of the Articles, ž 106.[8] *499 Against the Authors' charge of infringement, the Publishers do not here contend the Authors entered into an agreement authorizing reproduction of the Articles in the Databases. See supra, at 489, n. 1. Nor do they assert that the copies in the Databases represent "fair use" of the Authors' Articles. See 17 U.S. C. ž 107 ("fair use of a copyrighted work . . . is not an infringement"; four factors identified among those relevant to fair use determination). Instead, the Publishers rest entirely on the privilege described in ž 201(c). Each discrete edition of the periodicals in which the Articles appeared is a "collective work," the Publishers agree. They contend, however, that reproduction and distribution of each Article by the Databases lie within the "privilege of reproducing and distributing the [Articles] as part of . . . [a] revision of that collective work," ž 201(c). The Publishers' encompassing construction of the ž 201(c) privilege is unacceptable, we conclude, for it would diminish the Authors' exclusive rights in the Articles. In determining whether the Articles have been reproduced and distributed "as part of" a "revision" of the collective works in issue, we focus on the Articles as presented to, and perceptible by, the user of the Databases. See ž 102 (copyright protection subsists in original works fixed in any medium "from which they can be perceived, reproduced, or otherwise communicated"); see also ž 101 (1994 ed., Supp. V) (definitions of "copies" and "fixed"); Haemmerli, Commentary: Tasini v. New York Times Co., 22 Colum.-VLA. J. L. & Arts 129, 142-143 (1998). In this case, the three Databases present articles to users clear of the context provided either by the original periodical editions or by any revision of those editions. The Databases first prompt users to search the universe of their contents: thousands or millions of files containing *500 individual articles from thousands of collective works (i. e., editions), either in one series (the Times, in NYTO) or in scores of series (the sundry titles in NEXIS and GPO). When the user conducts a search, each article appears as a separate item within the search result. In NEXIS and NYTO, an article appears to a user without the graphics, formatting, or other articles with which the article was initially published. In GPO, the article appears with the other materials published on the same page or pages, but without any material published on other pages of the original periodical. In either circumstance, we cannot see how the Database perceptibly reproduces and distributes the article "as part of" either the original edition or a "revision" of that edition. One might view the articles as parts of a new compendiumÔÇönamely, the entirety of works in the Database. In that compendium, each edition of each periodical represents only a miniscule fraction of the ever-expanding Database. The Database no more constitutes a "revision" of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a "revision" of that poem. "Revision" denotes a new "version," and a version is, in this setting, a "distinct form of something regarded by its creator or others as one work." Webster's Third New International Dictionary 1944, 2545 (1976). The massive whole of the Database is not recognizable as a new version of its every small part. Alternatively, one could view the Articles in the Databases "as part of" no larger work at all, but simply as individual articles presented individually. That each article bears marks of its origin in a particular periodical (less vivid marks in NEXIS and NYTO, more vivid marks in GPO) suggests the article was previously part of that periodical. But the markings do not mean the article is currently reproduced or distributed as part of the periodical. The Databases' reproduction and distribution of individual ArticlesÔÇösimply as *501 individual Articles ÔÇöwould invade the core of the Authors' exclusive rights under ž 106.[9] The Publishers press an analogy between the Databases, on the one hand, and microfilm and microfiche, on the other. We find the analogy wanting. Microforms typically contain continuous photographic reproductions of a periodical in the medium of miniaturized film. Accordingly, articles appear on the microforms, writ very small, in precisely the position in which the articles appeared in the newspaper. The Times, for example, printed the beginning of Blakely's "Remembering Jane" Article on page 26 of the Magazine in the September 23, 1990, edition; the microfilm version of the Times reproduces that same Article on film in the very same position, within a film reproduction of the entire Magazine, in turn within a reproduction of the entire September 23, 1990, edition. True, the microfilm roll contains multiple editions, and the microfilm user can adjust the machine lens to focus only on the Article, to the exclusion of surrounding material. Nonetheless, the user first encounters the Article in context. In the Databases, by contrast, the Articles appear disconnected from their original context. In NEXIS and NYTO, the user sees the "Jane" Article apart even from the remainder of page 26. In GPO, the user sees the Article within the context of page 26, but clear of the context of page 25 or page 27, the rest of the Magazine, or the remainder of the day's newspaper. In short, unlike microforms, the Databases do not perceptibly reproduce articles as part of the *502 collective work to which the author contributed or as part of any "revision" thereof.[10] Invoking the concept of "media neutrality," the Publishers urge that the "transfer of a work between media" does not "alte[r] the character of" that work for copyright purposes. Brief for Petitioners 23. That is indeed true. See 17 U.S. C. ž 102(a) (copyright protection subsists in original works "fixed in any tangible medium of expression"). But unlike the conversion of newsprint to microfilm, the transfer of articles to the Databases does not represent a mere conversion of intact periodicals (or revisions of periodicals) from one medium to another. The Databases offer users individual articles, not intact periodicals. In this case, media neutrality should protect the Authors' rights in the individual Articles to the extent those Articles are now presented individually, outside the collective work context, within the Databases' new media.[11] For the purpose at handÔÇödetermining whether the Authors' copyrights have been infringedÔÇöan analogy to an *503 imaginary library may be instructive.[12] Rather than maintaining intact editions of periodicals, the library would contain separate copies of each article. Perhaps these copies would exactly reproduce the periodical pages from which the articles derive (if the model is GPO); perhaps the copies would contain only typescript characters, but still indicate the original periodical's name and date, as well as the article's headline and page number (if the model is NEXIS or NYTO). The library would store the folders containing the articles in a file room, indexed based on diverse criteria, and containing articles from vast numbers of editions. In response to patron requests, an inhumanly speedy librarian would search the room and provide copies of the articles matching patron-specified criteria. Viewing this strange library, one could not, consistent with ordinary English usage, characterize the articles "as part of" a "revision" of the editions in which the articles first appeared. In substance, however, the Databases differ from the file room only to the extent they aggregate articles in electronic packages (the LEXIS/NEXIS central discs or UMI CDÔÇöROMs), while the file room stores articles in spatially separate files. The crucial fact is that the Databases, like the hypothetical library, store and retrieve articles separately within a vast domain of diverse texts. Such a storage and retrieval system effectively overrides the Authors' exclusive *504 right to control the individual reproduction and distribution of each Article, 17 U.S. C. žž 106(1), (3). Cf. Ryan v. Carl Corp., 23 F. Supp. 2d 1146 (ND Cal. 1998) (holding copy shop in violation of ž 201(c)). The Publishers claim the protection of ž 201(c) because users can manipulate the Databases to generate search results consisting entirely of articles from a particular periodical edition. By this logic, ž 201(c) would cover the hypothetical library if, in response to a request, that library's expert staff assembled all of the articles from a particular periodical edition. However, the fact that a third party can manipulate a database to produce a noninfringing document does not mean the database is not infringing. Under ž 201(c), the question is not whether a user can generate a revision of a collective work from a database, but whether the database itself perceptibly presents the author's contribution as part of a revision of the collective work. That result is not accomplished by these Databases. The Publishers finally invoke Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). That decision, however, does not genuinely aid their argument. Sony held that the "sale of copying equipment" does not constitute contributory infringement if the equipment is "capable of substantial noninfringing uses." Id., at 442. The Publishers suggest that their Databases could be liable only under a theory of contributory infringement, based on enduser conduct, which the Authors did not plead. The Electronic Publishers, however, are not merely selling "equipment"; they are selling copies of the Articles. And, as we have explained, it is the copies themselves, without any manipulation by users, that fall outside the scope of the ž 201(c) privilege. IV The Publishers warn that a ruling for the Authors will have "devastating" consequences. Brief for Petitioners 49. The Databases, the Publishers note, provide easy access to *505 complete newspaper texts going back decades. A ruling for the Authors, the Publishers suggest, will punch gaping holes in the electronic record of history. The Publishers' concerns are echoed by several historians, see Brief for Ken Burns et al. as Amici Curiae, but discounted by several other historians, see Brief for Ellen Schrecker et al. as Amici Curiae; Brief for Authors' Guild, Inc., Jacques Barzun et al. as Amici Curiae. Notwithstanding the dire predictions from some quarters, see also post, at 520 (Stevens, J., dissenting), it hardly follows from today's decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue. See 17 U.S. C. ž 502(a) (court "may" enjoin infringement); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, n. 10 (1994) (goals of copyright law are "not always best served by automatically granting injunctive relief"). The parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors' works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution. See, e. g., 17 U.S. C. ž 118(b); Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 4-6, 10-12 (1979) (recounting history of blanket music licensing regimes and consent decrees governing their operation).[13] In any event, speculation about *506 future harms is no basis for this Court to shrink authorial rights Congress established in ž 201(c). Agreeing with the Court of Appeals that the Publishers are liable for infringement, we leave remedial issues open for initial airing and decision in the District Court. * * * We conclude that the Electronic Publishers infringed the Authors' copyrights by reproducing and distributing the Articles in a manner not authorized by the Authors and not privileged by ž 201(c). We further conclude that the Print Publishers infringed the Authors' copyrights by authorizing the Electronic Publishers to place the Articles in the Databases and by aiding the Electronic Publishers in that endeavor. We therefore affirm the judgment of the Court of Appeals. It is so ordered.

This copyright case concerns the rights of freelance authors and a presumptive privilege of their publishers. The litigation was initiated by six freelance authors and relates to articles they contributed to three print periodicals (two newspapers and one magazine). Under agreements with the periodicals' publishers, but without the freelancers' consent, two computer database companies placed copies of the freelancers' articlesÔÇöalong with all other articles from the periodicals in which the freelancers' work appearedÔÇöinto three databases. Whether written by a freelancer or staff member, each article is presented to, and retrievable by, the user in isolation, clear of the context the original print publication presented. The freelance authors' complaint alleged that their copyrights had been infringed by the inclusion of their articles in the databases. The publishers, in response, relied on the *488 privilege of reproduction and distribution accorded them by ž 201(c) of the Copyright Act, which provides: "Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." 17 U.S. C. ž 201(c). Specifically, the publishers maintained that, as copyright owners of collective works, i. e., the original print publications, they had merely exercised "the privilege" ž 201(c) accords them to "reproduc[e] and distribut[e]" the author's discretely copyrighted contribution. In agreement with the Second Circuit, we hold that ž 201(c) does not authorize the copying at issue here. The publishers are not sheltered by ž 201(c), we conclude, because the databases reproduce and distribute articles standing alone and not in context, not "as part of that particular collective work" to which the author contributed, "as part of any revision" thereof, or "as part of any later collective work in the same series." Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors. I A Respondents Jonathan Tasini, Mary Kay Blakely, Barbara Garson, Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford are authors (Authors). Between 1990 and 1993, they wrote the 21 articles (Articles) on which this dispute centers. Tasini, Mifflin, and Blakely contributed 12 Articles to The New York Times, the daily newspaper published by *489 petitioner The New York Times Company (Times). Tasini, Garson, Robbins, and Whitford wrote eight Articles for Newsday, another New York daily paper, published by petitioner Newsday, Inc. (Newsday). Whitford also contributed one Article to Sports Illustrated, a weekly magazine published by petitioner Time, Inc. (Time). The Authors registered copyrights in each of the Articles. The Times, Newsday, and Time (Print Publishers) registered collective work copyrights in each periodical edition in which an Article originally appeared. The Print Publishers engaged the Authors as independent contractors (freelancers) under contracts that in no instance secured consent from an Author to placement of an Article in an electronic database.[1] At the time the Articles were published, all three Print Publishers had agreements with petitioner LEXIS/NEXIS (formerly Mead Data Central Corp.), owner and operator of NEXIS, a computerized database that stores information in a text-only format. NEXIS contains articles from hundreds of journals (newspapers and periodicals) spanning many years. The Print Publishers have licensed to LEXIS/ NEXIS the text of articles appearing in the three periodicals. The licenses authorize LEXIS/NEXIS to copy and sell any portion of those texts. Pursuant to the licensing agreements, the Print Publishers regularly provide LEXIS/NEXIS with a batch of all the articles published in each periodical edition. The Print Publisher codes each article to facilitate computerized retrieval, then transmits it in a separate file. After further coding, LEXIS/NEXIS places the article in the central discs of its database. *490 Subscribers to NEXIS, accessing the system through a computer, may search for articles by author, subject, date, publication, headline, key term, words in text, or other criteria. Responding to a search command, NEXIS scans the database and informs the user of the number of articles meeting the user's search criteria. The user then may view, print, or download each of the articles yielded by the search. The display of each article includes the print publication (e. g., The New York Times), date section (Magazine), initial page number (26), headline or title ("Remembering Jane"), and author (Mary Kay Blakely). Each article appears as a separate, isolated "story"ÔÇöwithout any visible link to the other stories originally published in the same newspaper or magazine edition. NEXIS does not contain pictures or advertisements, and it does not reproduce the original print publication's formatting features such as headline size, page placement (e. g., above or below the fold for newspapers), or location of continuation pages. The Times (but not Newsday or Time) also has licensing agreements with petitioner University Microfilms International (UMI). The agreements authorize reproduction of Times materials on two CDÔÇöROM products, the New York Times OnDisc (NYTO) and General Periodicals OnDisc (GPO). Like NEXIS, NYTO is a text-only system. Unlike NEXIS, NYTO, as its name suggests, contains only the Times. Pursuant to a three-way agreement, LEXIS/ NEXIS provides UMI with computer files containing each article as transmitted by the Times to LEXIS/NEXIS. Like LEXIS/NEXIS, UMI marks each article with special codes. UMI also provides an index of all the articles in NYTO. Articles appear in NYTO in essentially the same way they appear in NEXIS, i. e., with identifying information (author, title, etc.), but without original formatting or accompanying images. *491 GPO contains articles from approximately 200 publications or sections of publications. Unlike NEXIS and NYTO, GPO is an image-based, rather than a text-based, system. The Times has licensed GPO to provide a facsimile of the Times' Sunday Book Review and Magazine. UMI "burns" images of each page of these sections onto CDÔÇöROMs. The CDÔÇö ROMs show each article exactly as it appeared on printed pages, complete with photographs, captions, advertisements, and other surrounding materials. UMI provides an index and abstracts of all the articles in GPO. Articles are accessed through NYTO and GPO much as they are accessed through NEXIS. The user enters a search query using similar criteria (e. g., author, headline, date). The computer program searches available indexes and abstracts, and retrieves a list of results matching the query. The user then may view each article within the search result, and may print the article or download it to a disc. The display of each article provides no links to articles appearing on other pages of the original print publications.[2] B On December 16, 1993, the Authors filed this civil action in the United States District Court for the Southern District of New York. The Authors alleged that their copyrights were infringed when, as permitted and facilitated by the Print Publishers, LEXIS/NEXIS and UMI (Electronic Publishers) placed the Articles in the NEXIS, NYTO, and GPO databases (Databases). The Authors sought declaratory *492 and injunctive relief, and damages. In response to the Authors' complaint, the Print and Electronic Publishers raised the reproduction and distribution privilege accorded collective work copyright owners by 17 U.S. C. ž 201(c). After discovery, both sides moved for summary judgment. The District Court granted summary judgment for the Publishers, holding that ž 201(c) shielded the Database reproductions. The privilege conferred by ž 201(c) is transferable, the court first concluded, and therefore could be conveyed from the original Print Publishers to the Electronic Publishers. Next, the court determined, the Databases reproduced and distributed the Authors' works, in ž 201(c)'s words, "as part of [a] revision of that collective work" to which the Authors had first contributed. To qualify as "revisions," according to the court, works need only "preserve some significant original aspect of [collective works]ÔÇöwhether an original selection or an original arrangement." This criterion was met, in the District Court's view, because the Databases preserved the Print Publishers' "selection of articles" by copying all of the articles originally assembled in the periodicals' daily or weekly issues. The Databases "highlight[ed]" the connection between the articles and the print periodicals, the court observed, by showing for each article not only the author and periodical, but also the print publication's particular issue and page numbers. The Authors appealed, and the Second Circuit reversed. The Court of Appeals granted summary judgment for the Authors on the ground that the Databases were not among the collective works covered by ž 201(c), and specifically, were not "revisions" of the periodicals in which the Articles first appeared. Just as ž 201(c) does not "permit a Publisher to sell a hard *493 copy of an Author's article directly to the public even if the Publisher also offered for individual sale all of the other articles from the particular edition," the court reasoned, so ž 201(c) does not allow a Publisher to "achieve the same goal indirectly" through computer databases. In the Second Circuit's view, the Databases effectively achieved this result by providing multitudes of "individually retrievable" articles. As stated by the Court of Appeals, the Databases might fairly be described as containing "new antholog[ies] of innumerable" editions or publications, but they do not qualify as "revisions" of particular editions of periodicals in the Databases. Having concluded that ž 201(c) "does not permit the Publishers," acting without the author's consent, "to license individually copyrighted works for inclusion in the electronic databases," the court did not reach the question whether the ž 201(c) privilege is transferable. and n. 2. We granted certiorari to determine whether the copying of the Authors' Articles in the Databases is privileged by 17 U.S. C. ž 201(c). Like the Court of Appeals, we conclude that the ž 201(c) privilege does not override the Authors' copyrights, for the Databases do not reproduce and distribute the Articles as part of a collective work privileged by ž 201(c). Accordingly, and again like the Court of Appeals, we find it unnecessary to determine whether the privilege is transferable. II Under the Copyright Act, as amended in 1976, "[c]opyright protection subsists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated." 17 U.S. C. ž 102(a). When, as in this case, a freelance author has contributed an article to a "collective work" such as a newspaper or magazine, see ž 101 (defining "collective work"), the statute recognizes two distinct copyrighted works: "Copyright in each separate contribution to a collec- *494 tive work is distinct from copyright in the collective work as a whole" ž 201(c) (emphasis added). Copyright in the separate contribution "vests initially in the author of the contribution" (here, the freelancer). Copyright in the collective work vests in the collective author (here, the newspaper or magazine publisher) and extends only to the creative material contributed by that author, not to "the preexisting material employed in the work," ž 103(b). See also Feist Publications, Prior to the 1976 revision, as the courts below recognized, see 206 F.3d, ; authors risked losing their rights when they placed an article in a collective work. Pre-1976 copyright law recognized a freelance author's copyright in a published article only when the article was printed with a copyright notice in the author's name. See Copyright Act of 1909, ž 18, When publishers, exercising their superior bargaining power over authors, declined to print notices in each contributor's name, the author's copyright was put in jeopardy. See Kaminstein, Divisibility of Copyrights, Study No. 11, in Copyright Law Revision Studies Nos. 11-13, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 18 (1960). The author did not have the option to assign only the right of publication in the periodical; such a partial assignment was blocked by the doctrine of copyright "indivisibility." See Thus, when a copyright notice appeared only in the publisher's name, the author's work would fall into the public domain, unless the author's copyright, in its entirety, had passed to the publisher. See Such complete transfer might be accomplished by a contract, perhaps one with a provision, not easily enforced, for later retransfer of rights back to the author. See Or, absent a specific contract, a court might find that an author had tacitly *495 transferred the entire copyright to a publisher, in turn deemed to hold the copyright in "trust" for the author's benefit. See -19; see generally 3 M. Nimmer & D. Nimmer, Copyright ž 10.01[C][2], pp. 10-12 to 10-14 In the 1976 revision, Congress acted to "clarify and improve [this] confused and frequently unfair legal situation with respect to rights in contributions." H. R. Rep. No. 94ÔÇö 1476, p. 122 (1976) (hereinafter H. R. Rep.).[3] The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete "exclusive rights," 17 U.S. C. ž 106 (1994 ed. and Supp. V),[4] each of which "may be transferred *496 and owned separately," ž 201(d)(2).[5] Congress also provided, in ž 404(a), that "a single notice applicable to the collective work as a whole is sufficient" to protect the rights of freelance contributors. And in ž 201(c), Congress codified the discrete domains of "[c]opyright in each separate contribution to a collective work" and "copyright in the collective work as a whole." Together, ž 404(a) and ž 201(c) "preserve the author's copyright in a contribution even if the contribution does not bear a separate notice in the author's name, and without requiring any unqualified transfer of rights to the owner of the collective work." H. R. Rep. 122. Section 201(c) both describes and circumscribes the "privilege" a publisher acquires regarding an author's contribution to a collective work: "In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." (Emphasis added.) A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only "as part of" any (or all) of three categories of collective works: (a) "that collective work" to which the author contributed her work, (b) "any revision of that collective work," or (c) "any later collective work in the same series." In accord with Congress' prescription, a "publishing company could reprint *497 a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work." H. R. Rep. 122-123. Essentially, ž 201(c) adjusts a publisher's copyright in its collective work to accommodate a freelancer's copyright in her contribution. If there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing initial publication, the freelancer may also sell the article to others. Cf. ("[w]hen an author produces a work which later commands a higher price in the market than the original bargain provided, the copyright statute [i. e., the separate renewal term of former 17 U.S. C. ž 24] is designed to provide the author the power to negotiate for the realized value of the work"); (noting author's "inalienable termination right" under current 17 U.S. C. žž 203, 302 (1994 ed. and Supp. V)). It would scarcely "preserve the author's copyright in a contribution" as contemplated by Congress, H. R. Rep. 122, if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the author's contribution in isolation or within new collective works. See Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 Brooklyn L. Rev. 473, 484[6] *498 III In the instant case, the Authors wrote several Articles and gave the Print Publishers permission to publish the Articles in certain newspapers and magazines. It is undisputed that the Authors hold copyrights and, therefore, exclusive rights in the Articles.[7] It is clear, moreover, that the Print and Electronic Publishers have exercised at least some rights that ž 106 initially assigns exclusively to the Authors: LEXIS/NEXIS' central discs and UMI's CDÔÇöROMs "reproduce copies" of the Articles, ž 106(1); UMI, by selling those CDÔÇöROMs, and LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, "distribute copies" of the Articles "to the public by sale," ž 106(3); and the Print Publishers, through contracts licensing the production of copies in the Databases, "authorize" reproduction and distribution of the Articles, ž 106.[8] *499 Against the Authors' charge of infringement, the Publishers do not here contend the Authors entered into an agreement authorizing reproduction of the Articles in the Databases. See Nor do they assert that the copies in the Databases represent "fair use" of the Authors' Articles. See 17 U.S. C. ž 107 ("fair use of a copyrighted work is not an infringement"; four factors identified among those relevant to fair use determination). Instead, the Publishers rest entirely on the privilege described in ž 201(c). Each discrete edition of the periodicals in which the Articles appeared is a "collective work," the Publishers agree. They contend, however, that reproduction and distribution of each Article by the Databases lie within the "privilege of reproducing and distributing the [Articles] as part of [a] revision of that collective work," ž 201(c). The Publishers' encompassing construction of the ž 201(c) privilege is unacceptable, we conclude, for it would diminish the Authors' exclusive rights in the Articles. In determining whether the Articles have been reproduced and distributed "as part of" a "revision" of the collective works in issue, we focus on the Articles as presented to, and perceptible by, the user of the Databases. See ž 102 (copyright protection subsists in original works fixed in any medium "from which they can be perceived, reproduced, or otherwise communicated"); see also ž 101 (1994 ed., Supp. V) (definitions of "copies" and "fixed"); Haemmerli, Commentary: Tasini v. New York Times Co., 22 Colum.-VLA. J. L. & Arts 129, 142-143 In this case, the three Databases present articles to users clear of the context provided either by the original periodical editions or by any revision of those editions. The Databases first prompt users to search the universe of their contents: thousands or millions of files containing *500 individual articles from thousands of collective works (i. e., editions), either in one series (the Times, in NYTO) or in scores of series (the sundry titles in NEXIS and GPO). When the user conducts a search, each article appears as a separate item within the search result. In NEXIS and NYTO, an article appears to a user without the graphics, formatting, or other articles with which the article was initially published. In GPO, the article appears with the other materials published on the same page or pages, but without any material published on other pages of the original periodical. In either circumstance, we cannot see how the Database perceptibly reproduces and distributes the article "as part of" either the original edition or a "revision" of that edition. One might view the articles as parts of a new compendiumÔÇönamely, the entirety of works in the Database. In that compendium, each edition of each periodical represents only a miniscule fraction of the ever-expanding Database. The Database no more constitutes a "revision" of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a "revision" of that poem. "Revision" denotes a new "version," and a version is, in this setting, a "distinct form of something regarded by its creator or others as one work." Webster's Third New International Dictionary 1944, 2545 (1976). The massive whole of the Database is not recognizable as a new version of its every small part. Alternatively, one could view the Articles in the Databases "as part of" no larger work at all, but simply as individual articles presented individually. That each article bears marks of its origin in a particular periodical (less vivid marks in NEXIS and NYTO, more vivid marks in GPO) suggests the article was previously part of that periodical. But the markings do not mean the article is currently reproduced or distributed as part of the periodical. The Databases' reproduction and distribution of individual ArticlesÔÇösimply as *501 individual Articles ÔÇöwould invade the core of the Authors' exclusive rights under ž 106.[9] The Publishers press an analogy between the Databases, on the one hand, and microfilm and microfiche, on the other. We find the analogy wanting. Microforms typically contain continuous photographic reproductions of a periodical in the medium of miniaturized film. Accordingly, articles appear on the microforms, writ very small, in precisely the position in which the articles appeared in the newspaper. The Times, for example, printed the beginning of Blakely's "Remembering Jane" Article on page 26 of the Magazine in the September 23, 1990, edition; the microfilm version of the Times reproduces that same Article on film in the very same position, within a film reproduction of the entire Magazine, in turn within a reproduction of the entire September 23, 1990, edition. True, the microfilm roll contains multiple editions, and the microfilm user can adjust the machine lens to focus only on the Article, to the exclusion of surrounding material. Nonetheless, the user first encounters the Article in context. In the Databases, by contrast, the Articles appear disconnected from their original context. In NEXIS and NYTO, the user sees the "Jane" Article apart even from the remainder of page 26. In GPO, the user sees the Article within the context of page 26, but clear of the context of page 25 or page 27, the rest of the Magazine, or the remainder of the day's newspaper. In short, unlike microforms, the Databases do not perceptibly reproduce articles as part of the *502 collective work to which the author contributed or as part of any "revision" thereof.[10] Invoking the concept of "media neutrality," the Publishers urge that the "transfer of a work between media" does not "alte[r] the character of" that work for copyright purposes. Brief for Petitioners 23. That is indeed true. See 17 U.S. C. ž 102(a) (copyright protection subsists in original works "fixed in any tangible medium of expression"). But unlike the conversion of newsprint to microfilm, the transfer of articles to the Databases does not represent a mere conversion of intact periodicals (or revisions of periodicals) from one medium to another. The Databases offer users individual articles, not intact periodicals. In this case, media neutrality should protect the Authors' rights in the individual Articles to the extent those Articles are now presented individually, outside the collective work context, within the Databases' new media.[11] For the purpose at handÔÇödetermining whether the Authors' copyrights have been infringedÔÇöan analogy to an *503 imaginary library may be instructive.[12] Rather than maintaining intact editions of periodicals, the library would contain separate copies of each article. Perhaps these copies would exactly reproduce the periodical pages from which the articles derive (if the model is GPO); perhaps the copies would contain only typescript characters, but still indicate the original periodical's name and date, as well as the article's headline and page number (if the model is NEXIS or NYTO). The library would store the folders containing the articles in a file room, indexed based on diverse criteria, and containing articles from vast numbers of editions. In response to patron requests, an inhumanly speedy librarian would search the room and provide copies of the articles matching patron-specified criteria. Viewing this strange library, one could not, consistent with ordinary English usage, characterize the articles "as part of" a "revision" of the editions in which the articles first appeared. In substance, however, the Databases differ from the file room only to the extent they aggregate articles in electronic packages (the LEXIS/NEXIS central discs or UMI CDÔÇöROMs), while the file room stores articles in spatially separate files. The crucial fact is that the Databases, like the hypothetical library, store and retrieve articles separately within a vast domain of diverse texts. Such a storage and retrieval system effectively overrides the Authors' exclusive *504 right to control the individual reproduction and distribution of each Article, 17 U.S. C. žž 106(1), (3). Cf. The Publishers claim the protection of ž 201(c) because users can manipulate the Databases to generate search results consisting entirely of articles from a particular periodical edition. By this logic, ž 201(c) would cover the hypothetical library if, in response to a request, that library's expert staff assembled all of the articles from a particular periodical edition. However, the fact that a third party can manipulate a database to produce a noninfringing document does not mean the database is not infringing. Under ž 201(c), the question is not whether a user can generate a revision of a collective work from a database, but whether the database itself perceptibly presents the author's contribution as part of a revision of the collective work. That result is not accomplished by these Databases. The Publishers finally invoke Sony Corp. of That decision, however, does not genuinely aid their argument. Sony held that the "sale of copying equipment" does not constitute contributory infringement if the equipment is "capable of substantial noninfringing uses." The Publishers suggest that their Databases could be liable only under a theory of contributory infringement, based on enduser conduct, which the Authors did not plead. The Electronic Publishers, however, are not merely selling "equipment"; they are selling copies of the Articles. And, as we have explained, it is the copies themselves, without any manipulation by users, that fall outside the scope of the ž 201(c) privilege. IV The Publishers warn that a ruling for the Authors will have "devastating" consequences. Brief for Petitioners 49. The Databases, the Publishers note, provide easy access to *505 complete newspaper texts going back decades. A ruling for the Authors, the Publishers suggest, will punch gaping holes in the electronic record of history. The Publishers' concerns are echoed by several historians, see Brief for Ken Burns et al. as Amici Curiae, but discounted by several other historians, see Brief for Ellen Schrecker et al. as Amici Curiae; Brief for Authors' Guild, Inc., Jacques Barzun et al. as Amici Curiae. Notwithstanding the dire predictions from some quarters, see also post, at 520 (Stevens, J., dissenting), it hardly follows from today's decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue. See 17 U.S. C. ž 502(a) (court "may" enjoin infringement); The parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors' works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution. See, e. g., 17 U.S. C. ž 118(b); Broadcast Music,[13] In any event, speculation about *506 future harms is no basis for this Court to shrink authorial rights Congress established in ž 201(c). Agreeing with the Court of Appeals that the Publishers are liable for infringement, we leave remedial issues open for initial airing and decision in the District Court. * * * We conclude that the Electronic Publishers infringed the Authors' copyrights by reproducing and distributing the Articles in a manner not authorized by the Authors and not privileged by ž 201(c). We further conclude that the Print Publishers infringed the Authors' copyrights by authorizing the Electronic Publishers to place the Articles in the Databases and by aiding the Electronic Publishers in that endeavor. We therefore affirm the judgment of the Court of Appeals. It is so ordered.

Justice Stevens

dissenting

New York Times Co. v. Tasini

2001-06-25

https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/

https://www.courtlistener.com/api/rest/v3/clusters/118457/

2000-083

This case raises an issue of first impression concerning the meaning of the word "revision" as used in ž 201(c) of the 1976 revision of the Copyright Act of 1909 (1976 Act). Ironically, the Court today seems unwilling to acknowledge that changes in a collective work far less extensive than those made to prior copyright law by the 1976 "revision" do not merit the same characterization. To explain my disagreement with the Court's holding, I shall first identify Congress' principal goals in passing the 1976 Act's changes in the prior law with respect to collective works. I will then discuss two analytically separate questions *507 that are blended together in the Court's discussion of revisions. The first is whether the electronic versions of the collective works created by the owners of the copyright in those works (Print Publishers or publishers) are "revision[s]" of those works within the meaning of 17 U.S. C. ž 201(c). In my judgment they definitely are. The second is whether the aggregation by LEXIS/NEXIS and UMI (Electronic Databases) of the revisions with other editions of the same periodical or with other periodicals within a single database changes the equation. I think it does not. Finally, I will consider the implications of broader copyright policy for the issues presented in this case. I As the majority correctly observes, prior to 1976, an author's decision to publish her individual article as part of a collective work was a perilous one. Although pre-1976 copyright law recognized the author's copyright in an individual article that was included within a collective work, those rights could be lost if the publisher refused to print the article with a copyright notice in the author's name. 3 M. Nimmer & D. Nimmer, Nimmer on Copyright ž 10.01[C][2], p. 10-12 (2000). This harsh rule was, from the author's point of view, exacerbated by the pre-1976 doctrine of copyright "indivisibility," which prevented an author from assigning only limited publication rights to the publisher of a collective work while holding back all other rights to herself.[1]Ibid. The indivisibility of copyright, in combination with the danger of losing copyright protection, put significant pressure on an author seeking to preserve her copyright in the contribution to *508 transfer the entire copyright over to the publisher in trust. See Kaminstein, Divisibility of Copyrights, Study No. 11, in Copyright Law Revision Studies Nos. 11-13, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 18-22 (1960) (hereinafter Kaminstein).[2] Such authors were often at the mercy of publishers when they tried to reclaim their copyright. Id., at 21.[3] The 1976 Act's extensive revisions of the copyright law had two principal goals with respect to the rights of freelance authors whose writings appeared as part of larger collective works. First, as the legislative history of ž 201(c) unambiguously reveals, one of its most significant aims was to "preserve the author's copyright in a contribution even if the contribution does not bear a separate notice in the author's name, and without requiring any unqualified transfer of rights to the owner of the collective work." H. R. Rep. No. 94-1476, p. 122 (1976) (hereinafter H. R. Rep.) (discussing the purpose of ž 201(c)). Indeed, ž 404(a) states that "a single notice applicable to the collective work as a whole is sufficient" to protect the author's rights. The second significant change effected by the 1976 Act clarified the scope of the privilege granted to the publisher of a collective work. While pre-1976 law had the effect of encouraging an author to transfer her entire copyright to the *509 publisher of a collective work, ž 201(c) creates the opposite incentive, stating that, absent some agreement to the contrary, the publisher acquires from the author only "the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."[4] Congress intended this limitation on what the author is presumed to give away primarily to keep publishers from "revis[ing] the contribution itself or includ[ing] it in a new anthology or an entirely different magazine or other collective work. " H. R. Rep. 122-123.[5] *510 The majority is surely correct that the 1976 Act's new approach to collective works was an attempt to "`clarify and improve the . . . confused and frequently unfair legal situation' " that existed under the prior regime. Id., at 122. It is also undoubtedly true that the drafters of the 1976 Act hoped to "enhance the author's position vis-Ó-vis the patron." Ante, at 495, n. 3. It does not follow, however, that Congress' efforts to "preserve the author's copyright in a contribution," H. R. Rep. 122, can only be honored by a finding in favor of the respondent authors. Indeed, the conclusion that the petitioners' actions were lawful is fully consistent with both of Congress' principal goals for collective works in the 1976 Act. First, neither the publication of the collective works by the Print Publishers nor their transfer to the Electronic Databases had any impact on the legal status of the copyrights of the respondents' individual contributions.[6] By virtue of the 1976 Act, respondents remain the owners of the copyright in their individual works. Moreover, petitioners neither modified respondents' individual contributions nor, as I will show in Part II, published them in a "new anthology or an entirely different magazine or other collective work. " Id., at 122ÔÇö 123 (emphasis added). Because I do not think it is at all obvious that the decision the majority reaches today is a result clearly intended by the 1976 Congress, I disagree with the Court's conclusion that a ruling in petitioners' favor *511 would "shrink authorial rights" that "Congress [has] established." Ante, at 506 (emphasis added). II Not only is petitioners' position consistent with Congress' general goals in the 1976 Act, it is also consistent with the text of ž 201(c). That provision allows the publisher of a collective work to "reproduc[e] and distribut[e] the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." The central question in this case, then, is whether petitioners are correct when they argue that publication of the respondents' articles in the various Electronic Databases at issue in this case is nothing more than "reproduc[tion] and distribut[ion] [of] the contribution as part of . . . revision[s] of [the original] collective work[s]" in which respondents' articles appeared. I agree with petitioners that neither the conversion of the Print Publishers' collective works from printed to electronic form, nor the transmission of those electronic versions of the collective works to the Electronic Databases, nor even the actions of the Electronic Databases once they receive those electronic versions does anything to deprive those electronic versions of their status as mere "revision[s]" of the original collective works. A proper analysis of this case benefits from an incremental approach. Accordingly, I begin by discussing an issue the majority largely ignores: whether a collection of articles from a single edition of the New York Times (i. e., the batch of files the Print Publishers periodically send to the Electronic Databases) constitutes a "revision" of an individual edition of the paper. In other words, does a single article within such a collection exist as "part of" a "revision"? Like the majority, I believe that the crucial inquiry is whether the article appears within the "context" of the original collective work. Ante, at 502. But this question simply raises the further issue of precisely how much "context" is enough. *512 The record indicates that what is sent from the New York Times to the Electronic Databases (with the exception of General Periodicals OnDisc (GPO)) is simply a collection of ASCII text files representing the editorial content of the New York Times for a particular day.[7] App. 73a. Each individual ASCII file contains the text of a single article as well as additional coding intended to help readers identify the context in which the article originally appeared and to facilitate database searches. Thus, for example, to the original text of an article, the New York Times adds information on the article's "headline, byline and title," "the section of the paper in which the article had originally appeared," and "the page in the paper or periodical on which the article had first appeared." Id., at 75aÔÇö76a.[8] I see no compelling reason why a collection of files corresponding to a single edition of the New York Times, standing alone, cannot constitute a "revision" of that day's New York Times. It might be argued, as respondents appear to do, that the presentation of each article within its own electronic file makes it impossible to claim that the collection of files as a whole amounts to a "revision." Brief for Respondents Tasini et al. 34. But the conversion of the text of the overall collective work into separate electronic files should not, by itself, decide the question. After all, one of the hallmarks of copyright policy, as the majority recognizes, ante, at 502, is the principle of media neutrality. See H. R. Rep. 53. No one doubts that the New York Times has the right to reprint its issues in Braille, in a foreign language, or in *513 microform, even though such revisions might look and feel quite different from the original. Such differences, however, would largely result from the different medium being employed. Similarly, the decision to convert the single collective work newspaper into a collection of individual ASCII files can be explained as little more than a decision that reflects the different nature of the electronic medium. Just as the paper version of the New York Times is divided into "sections" and "pages" in order to facilitate the reader's navigation and manipulation of large batches of newsprint, so too the decision to subdivide the electronic version of that collective work into individual article files facilitates the reader's use of the electronic information. The barebones nature of ASCII text would make trying to wade through a single ASCII file containing the entire content of a single edition of the New York Times an exercise in frustration.[9] Although the Court does not separately discuss the question whether the groups of files that the New York Times sends to the Electronic Databases constitute "revision[s]," its reasoning strongly suggests that it would not accept such a characterization. The majority, for example, places significant emphasis on the differences between the various Electronic Databases and microform, a medium that admittedly qualifies as a revision under ž 201(c).[10] As with the conversion of individual editions into collections of separate article files, however, many of the differences between the *514 electronic versions and microform are necessitated by the electronic medium. The Court therefore appears to back away from principles of media neutrality when it implicitly criticizes ASCII-text files for their inability to reproduce "Remembering Jane" "in the very same position, within a film reproduction of the entire Magazine, in turn within a reproduction of the entire September 23, 1990, edition." Ante, at 501.[11] In contrast, I think that a proper respect for media neutrality suggests that the New York Times, reproduced as a collection of individual ASCII files, should be treated as a "revision" of the original edition, as long as each article explicitly refers to the original collective work and as long as substantially the rest of the collective work is, at the same time, readily accessible to the reader of the individual file. In this case, no one disputes that the first pieces of information a user sees when looking at an individual ASCII article file are the name of the publication in which the article appeared, the edition of that publication, and the location of the article within that edition. I agree with the majority that such labeling alone is insufficient to establish that the individual file exists as "part of" a revision of the original collective work. See ante, at 500-501. But such labeling is not all there is in the group of files sent to the Electronic Databases. In addition to the labels, the batch of electronic files contains the entire editorial content of the original edition of the New York Times for that day. That is, while I might agree that a single article, standing alone, even when coded with identifying information (e. g., publication, edition date, *515 headline, etc.), should not be characterized as a "part of" a larger collective work, I would not say the same about an individual article existing as "part of" a collection of articles containing all the editorial content of that day's New York Times. This is all the more true because, as the District Court correctly noted, it is the Print Publishers' selection process, the editorial process by which the staff of the New York Times, for example, decides which articles will be included in "All the News That's Fit to Print," that is the most important creative element they contribute to the collective works they publish. 972 F. Supp. 804, 823 (SDNY 1997).[12] While such superficial features as page placement and column width are lost in ASCII format, the Print Publishers' all-important editorial selection is wholly preserved in the collection of individual article files sent to the Electronic Databases. To see why an electronic version of the New York Times made up of a group of individual ASCII article files, standing alone, may be considered a ž 201(c) revision, suppose that, instead of transmitting to NEXIS the articles making up a particular day's edition, the New York Times saves all of the individual files on a single floppy disk, labels that disk "New York Times, October 31, 2000," and sells copies of the disk to users as the electronic version of that day's New York Times. The disk reproduces the creative, editorial selection of that edition of the New York Times. The reader, after all, has at his fingertips substantially all of the relevant content of the October 31 edition of the collective work. Moreover, each individual article makes explicit reference to that selection by including tags that remind the reader that it is a part of the New York Times for October 31, 2000. Such a disk might well constitute "that particular collective work"; it would surely qualify as a "revision" of the original collective *516 work. Yet all the features identified as essential by the majority and by the respondents would still be lacking. An individual looking at one of the articles contained on the disk would still see none of the original formatting context and would still be unable to flip the page. Once one accepts the premise that a disk containing all the files from the October 31, 2000, New York Times can constitute a "revision," there is no reason to treat any differently the same set of files, stored in a folder on the hard disk of a computer at the New York Times. Thus, at least before it is republished by the Electronic Databases, the collection of files that the New York Times transmits to them constitutes a revision, in electronic form, of a particular edition of the New York Times. III The next question, then, is whether anything that the Electronic Databases do to the transmitted "revision" strips it of that status. The heart of the Court's reasoning in this respect, as I understand it, is that, once received and processed by Electronic Databases, the data transmitted by the New York Times cannot be viewed as "revisions" within the meaning of ž 201(c) because of the way that data is stored and made available to the public by those Databases. First, the Court points to the fact that "the three Databases present articles to users clear of the context provided either by the original periodical editions or by any revision of those editions." Ante, at 499. I have already addressed these formatting concerns. Second, and not wholly unrelated to the first point, however, the Court appears to think that the commingling of my hypothetical collection of ASCII article files from the October 31, 2000, New York Times with similar collections of files from other editions of the New York Times (or from other periodicals) within one database would deprive that collection of revision status. See ante, at 501, n. 9. Even if my imaginary floppy disk could, in isolation, be considered a revision, the majority might *517 say, that status would be lost if the floppy disk were to contain, not only the files from the October 31, 2000, New York Times, but also from the New York Times for every other day in 2000 (and other years) and from hundreds of other periodicals. I disagree. If my hypothetical October 31, 2000, floppy disk can be a revision, I do not see why the inclusion of other editions and other periodicals is any more significant than the placement of a single edition of the New York Times in a large public library or in a bookstore. Each individual file still reminds the reader that he is viewing "part of" a particular collective work. And the entire editorial content of that work still exists at the reader's fingertips.[13] It is true that, once the revision of the October 31, 2000, New York Times is surrounded by the additional content, it can be conceptualized as existing as part of an even larger collective work (e. g., the entire NEXIS database). See ante, at 500. The question then becomes whether this ability to conceive of a revision of a collective work as existing within a larger "collective work" changes the status of the original revision. Section 201(c)'s requirement that the article be published only as "part of . . . any revision of that collective work " does not compel any particular answer to that question. A microfilm of the New York Times for October 31, 2000, does not cease to be a revision of that individual collective work simply because it is stored on the same roll of film as other editions of the Times or on a library shelf containing hundreds of other microfilm periodicals. Nor does ž 201(c) compel the counterintuitive conclusion that the microfilm version of the Times would cease to be a revision simply because its publishers might choose to sell it on rolls of film that contained a year's editions of both the New York Times and the Herald-Tribune. Similarly, the placement of *518 our hypothetical electronic revision of the October 31, 2000, New York Times within a larger electronic database does nothing to alter either the nature of our original electronic revision or the relationship between that revision and the individual articles that exist as "part of" it. Finally, the mere fact that an individual user may either view or print copies of individual articles stored on the Electronic Databases does not change the nature of the revisions contained within those databases. The same media-specific necessities that allow the publishers to store and make available the original collective work as a collection of individual digital files make it reasonable for the Electronic Databases to enable the user to download or print only those files in which the user has a particular interest. But this is no different from microfilm. Just as nothing intrinsic in the nature of microfilm dictates to a user how much or how little of a microform edition of the New York Times she must copy, nothing intrinsic in the Electronic Databases dictates to a user how much (or how little) of a particular edition of the New York Times to view or print. It is up to the user in each instance to decide whether to employ the publisher's product in a manner that infringes either the publisher's or the author's copyright. And to the extent that the user's decision to make a copy of a particular article violates the author's copyright in that article, such infringing third-party behavior should not be attributed to the database.[14] See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984). IV My reading of "revision," as encompassing products like the Electronic Databases, is not the only possible answer to *519 the complex questions presented by this case. It is, nevertheless, one that is consistent with the statutory text and entirely faithful to the statute's purposes. Respect for the policies motivating its enactment, to which I now turn, makes it wrong for the Court to reject this reading of ž 201(c). It is likely that the Congress that enacted the 1976 revision of the law of copyright did not anticipate the developments that occurred in the 1980's which gave rise to the practices challenged in this litigation. See Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 Harv. L. Rev. 977, 979 (1993) (in 1976, "Congress . . . decided to avoid grappling with technological issues that obviously required more study than the legislative process was then willing to give them").[15] Thus, in resolving ambiguities in the relevant text of the statute, we should be mindful of the policies underlying copyright law. Macaulay wrote that copyright is "a tax on readers for the purpose of giving a bounty to writers." T. Macaulay, Speeches on Copyright 11 (A. Thorndike ed. 1915). That tax restricts the dissemination of writings, but only insofar as necessary to encourage their production, the bounty's basic objective. See U. S. Const., Art. I, ž 8, cl. 8. In other words, "[t]he primary purpose of copyright is not to reward the author, but is rather to secure `the general benefits derived by the public from the labors of authors.' " 1 M. Nimmer & D. Nimmer, Copyright ž 1.03[A] (2000) (quoting Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932)); see also Breyer, The Uneasy Case for Copyright: A Study of *520 Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 282 (1970) (discussing the twin goals of copyright lawÔÇöprotecting the reader's desire for access to ideas and providing incentives for authors to produce them). The majority's decision today unnecessarily subverts this fundamental goal of copyright law in favor of a narrow focus on "authorial rights." Ante, at 506. Although the desire to protect such rights is certainly a laudable sentiment,[16] copyright law demands that "private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (emphasis added). The majority discounts the effect its decision will have on the availability of comprehensive digital databases, ante, at 504-505, but I am not as confident. As petitioners' amici have persuasively argued, the difficulties of locating individual freelance authors and the potential of exposure to statutory damages may well have the effect of forcing electronic archives to purge freelance pieces from their databases.[17] "The omission of these materials from electronic collections, for any reason on a large scale or even an occasional basis, undermines the principal benefits that electronic archives offer historiansÔÇöefficiency, accuracy and comprehensiveness." [18] Brief for Ken Burns et al. as Amici Curiae 13. *521 Moreover, it is far from clear that my position even deprives authors of much of anything (with the exception of perhaps the retrospective statutory damages that may well result from their victory today).[19] Imagine, for example, that one of the contributions at issue in this case were a copyrighted version of John Keats' Ode on a Grecian Urn, published on page 29 of our hypothetical October 31, 2000, New York Times. Even under my reading of ž 201(c), Keats retains valuable copyright protection. No matter how well received his ode might be, it is unlikelyÔÇöalthough admittedly possibleÔÇöthat it could be marketed as a stand-alone work of art. The ode, however, would be an obvious candidate for inclusion in an anthology of works by romantic poets, in a collection of poems by the same author, or even in "a 400-page novel quoting a [poem] in passing," ante, at 500. The author's copyright would protect his right to compensation for any such use. Cf. Stewart v. Abend, 495 U.S. 207, 228 (1990) (discussing the value to authors of derivative works). Moreover, the value of the ode surely would be enhanced, not decreased, by the accessibility and readership of the October 31, 2000, edition of the New York Times. The ready availability of that edition, both at the time of its first publication and subsequently in libraries and electronic databases, would be a benefit, not an injury, to most authors. Keats would benefit from the poem's continued availability to database users, by his identification as the author of the piece, and by the database's indication of the fact that the poem first appeared in a prestigious periodical on a certain date. He would not care one whit whether the database indicated *522 the formatting context of the page on which the poem appeared. What is overwhelmingly clear is that maximizing the readership of the ode would enhance the value of his remaining copyright uses. Nor is it clear that Keats will gain any prospective benefits from a victory in this case. As counsel for petitioners represented at oral argument, since 1995, the New York Times has required freelance authors to grant the Times "electronic rights" to articles. Tr. of Oral Arg. 7. And the inclusion of such a term has had no effect on the compensation authors receive. See ibid. This is understandable because, even if one accepts the majority's characterization of the Electronic Databases as collections of freestanding articles, demand for databases like NEXIS probably does not reflect a "demand for a freelance article standing alone," ante, at 497, to which the publishers are greedily helping themselves. Cf. Ryan v. Carl Corp., 23 F. Supp. 2d 1146, 1150-1151 (ND Cal. 1998) ("[T]he value added by the publisher to a reproduced article is significant"). Instead, it seems far more likely that demand for the Electronic Databases reflects demand for a product that will provide a user with the means to quickly search through scores of complete periodicals. The comments of historian Douglas Brinkley are instructive in this respect: "`As an historian, when I want to write a biography, if I'm going to write a biography of Bill Clinton, the first thing I would do would be to index The New York Times. I would work through [the] microfiche and get any time Bill Clinton's name ever appeared in The New York Times. I'd get a copy of that. So, you'd have boxes of files. So for each month, here's Clinton this month. . . .You then would fill that in with . . . other obvious books or articles from Foreign Affairs or For- eign Policy or The New Yorker, or the like and you'd start getting your first biography of Bill Clinton.' " Panel Discussion: The Observer's View (D. Brinkley, M. *523 Frankel, H. Sidey), White House Historical Association (Nov. 16, 2000) (CÔÇöSPAN Archives No. 160577) (quoted in Brief for Ken Burns et al. as Amici Curiae 17). Users like Douglas Brinkley do not go to NEXIS because it contains a score of individual articles by Jonathan Tasini.[20] Rather, they go to NEXIS because it contains a comprehensive and easily searchable collection of (intact) periodicals. *524 See id., at 8 ("The efficiency, accuracy, reliability, comprehensiveness and immediacy of access offered by searchable fulltext digital archives are but a few of the benefits historians and other researchers have reaped from the advancement in the technology of information"). Because it is likely that Congress did not consider the question raised by this case when drafting ž 201(c), because I think the District Court's reading of that provision is reasonable and consistent with the statute's purposes, and because the principal goals of copyright policy are better served by that reading, I would reverse the judgment of the Court of Appeals. The majority is correct that we cannot know in advance the effects of today's decision on the comprehensiveness of electronic databases. We can be fairly certain, however, that it will provide little, if any, benefit to either authors or readers.

This case raises an issue of first impression concerning the meaning of the word "revision" as used in ž 201(c) of the 1976 revision of the Copyright Act of 1909 (1976 Act). Ironically, the Court today seems unwilling to acknowledge that changes in a collective work far less extensive than those made to prior copyright law by the 1976 "revision" do not merit the same characterization. To explain my disagreement with the Court's holding, I shall first identify Congress' principal goals in passing the 1976 Act's changes in the prior law with respect to collective works. I will then discuss two analytically separate questions *507 that are blended together in the Court's discussion of revisions. The first is whether the electronic versions of the collective works created by the owners of the copyright in those works (Print Publishers or publishers) are "revision[s]" of those works within the meaning of 17 U.S. C. ž 201(c). In my judgment they definitely are. The second is whether the aggregation by LEXIS/NEXIS and UMI (Electronic Databases) of the revisions with other editions of the same periodical or with other periodicals within a single database changes the equation. I think it does not. Finally, I will consider the implications of broader copyright policy for the issues presented in this case. I As the majority correctly observes, prior to 1976, an author's decision to publish her individual article as part of a collective work was a perilous one. Although pre-1976 copyright law recognized the author's copyright in an individual article that was included within a collective work, those rights could be lost if the publisher refused to print the article with a copyright notice in the author's name. 3 M. Nimmer & D. Nimmer, Nimmer on Copyright ž 10.01[C][2], p. 10-12 (2000). This harsh rule was, from the author's point of view, exacerbated by the pre-1976 doctrine of copyright "indivisibility," which prevented an author from assigning only limited publication rights to the publisher of a collective work while holding back all other rights to herself.[1]Ibid. The indivisibility of copyright, in combination with the danger of losing copyright protection, put significant pressure on an author seeking to preserve her copyright in the contribution to *508 transfer the entire copyright over to the publisher in trust. See Kaminstein, Divisibility of Copyrights, Study No. 11, in Copyright Law Revision Studies Nos. 11-13, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 18-22 (1960) (hereinafter Kaminstein).[2] Such authors were often at the mercy of publishers when they tried to reclaim their copyright.[3] The 1976 Act's extensive revisions of the copyright law had two principal goals with respect to the rights of freelance authors whose writings appeared as part of larger collective works. First, as the legislative history of ž 201(c) unambiguously reveals, one of its most significant aims was to "preserve the author's copyright in a contribution even if the contribution does not bear a separate notice in the author's name, and without requiring any unqualified transfer of rights to the owner of the collective work." H. R. Rep. No. 94-1476, p. 122 (1976) (hereinafter H. R. Rep.) (discussing the purpose of ž 201(c)). Indeed, ž 404(a) states that "a single notice applicable to the collective work as a whole is sufficient" to protect the author's rights. The second significant change effected by the 1976 Act clarified the scope of the privilege granted to the publisher of a collective work. While pre-1976 law had the effect of encouraging an author to transfer her entire copyright to the *509 publisher of a collective work, ž 201(c) creates the opposite incentive, stating that, absent some agreement to the contrary, the publisher acquires from the author only "the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."[4] Congress intended this limitation on what the author is presumed to give away primarily to keep publishers from "revis[ing] the contribution itself or includ[ing] it in a new anthology or an entirely different magazine or other collective work. " H. R. Rep. 122-123.[5] *510 The majority is surely correct that the 1976 Act's new approach to collective works was an attempt to "`clarify and improve the confused and frequently unfair legal situation' " that existed under the prior regime. It is also undoubtedly true that the drafters of the 1976 Act hoped to "enhance the author's position vis-Ó-vis the patron." Ante, at 495, n. 3. It does not follow, however, that Congress' efforts to "preserve the author's copyright in a contribution," H. R. Rep. 122, can only be honored by a finding in favor of the respondent authors. Indeed, the conclusion that the petitioners' actions were lawful is fully consistent with both of Congress' principal goals for collective works in the 1976 Act. First, neither the publication of the collective works by the Print Publishers nor their transfer to the Electronic Databases had any impact on the legal status of the copyrights of the respondents' individual contributions.[6] By virtue of the 1976 Act, respondents remain the owners of the copyright in their individual works. Moreover, petitioners neither modified respondents' individual contributions nor, as I will show in Part II, published them in a "new anthology or an entirely different magazine or other collective work. " ÔÇö 123 Because I do not think it is at all obvious that the decision the majority reaches today is a result clearly intended by the 1976 Congress, I disagree with the Court's conclusion that a ruling in petitioners' favor *511 would "shrink authorial rights" that "Congress [has] established." Ante, at 506 II Not only is petitioners' position consistent with Congress' general goals in the 1976 Act, it is also consistent with the text of ž 201(c). That provision allows the publisher of a collective work to "reproduc[e] and distribut[e] the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." The central question in this case, then, is whether petitioners are correct when they argue that publication of the respondents' articles in the various Electronic Databases at issue in this case is nothing more than "reproduc[tion] and distribut[ion] [of] the contribution as part of revision[s] of [the original] collective work[s]" in which respondents' articles appeared. I agree with petitioners that neither the conversion of the Print Publishers' collective works from printed to electronic form, nor the transmission of those electronic versions of the collective works to the Electronic Databases, nor even the actions of the Electronic Databases once they receive those electronic versions does anything to deprive those electronic versions of their status as mere "revision[s]" of the original collective works. A proper analysis of this case benefits from an incremental approach. Accordingly, I begin by discussing an issue the majority largely ignores: whether a collection of articles from a single edition of the New York Times (i. e., the batch of files the Print Publishers periodically send to the Electronic Databases) constitutes a "revision" of an individual edition of the paper. In other words, does a single article within such a collection exist as "part of" a "revision"? Like the majority, I believe that the crucial inquiry is whether the article appears within the "context" of the original collective work. Ante, at 502. But this question simply raises the further issue of precisely how much "context" is enough. *512 The record indicates that what is sent from the New York Times to the Electronic Databases (with the exception of General Periodicals OnDisc (GPO)) is simply a collection of ASCII text files representing the editorial content of the New York Times for a particular day.[7] App. 73a. Each individual ASCII file contains the text of a single article as well as additional coding intended to help readers identify the context in which the article originally appeared and to facilitate database searches. Thus, for example, to the original text of an article, the New York Times adds information on the article's "headline, byline and title," "the section of the paper in which the article had originally appeared," and "the page in the paper or periodical on which the article had first appeared." at 75aÔÇö76a.[8] I see no compelling reason why a collection of files corresponding to a single edition of the New York Times, standing alone, cannot constitute a "revision" of that day's New York Times. It might be argued, as respondents appear to do, that the presentation of each article within its own electronic file makes it impossible to claim that the collection of files as a whole amounts to a "revision." Brief for Respondents Tasini et al. 34. But the conversion of the text of the overall collective work into separate electronic files should not, by itself, decide the question. After all, one of the hallmarks of copyright policy, as the majority recognizes, ante, at 502, is the principle of media neutrality. See H. R. Rep. 53. No one doubts that the New York Times has the right to reprint its issues in Braille, in a foreign language, or in *513 microform, even though such revisions might look and feel quite different from the original. Such differences, however, would largely result from the different medium being employed. Similarly, the decision to convert the single collective work newspaper into a collection of individual ASCII files can be explained as little more than a decision that reflects the different nature of the electronic medium. Just as the paper version of the New York Times is divided into "sections" and "pages" in order to facilitate the reader's navigation and manipulation of large batches of newsprint, so too the decision to subdivide the electronic version of that collective work into individual article files facilitates the reader's use of the electronic information. The barebones nature of ASCII text would make trying to wade through a single ASCII file containing the entire content of a single edition of the New York Times an exercise in frustration.[9] Although the Court does not separately discuss the question whether the groups of files that the New York Times sends to the Electronic Databases constitute "revision[s]," its reasoning strongly suggests that it would not accept such a characterization. The majority, for example, places significant emphasis on the differences between the various Electronic Databases and microform, a medium that admittedly qualifies as a revision under ž 201(c).[10] As with the conversion of individual editions into collections of separate article files, however, many of the differences between the *514 electronic versions and microform are necessitated by the electronic medium. The Court therefore appears to back away from principles of media neutrality when it implicitly criticizes ASCII-text files for their inability to reproduce "Remembering Jane" "in the very same position, within a film reproduction of the entire Magazine, in turn within a reproduction of the entire September 23, 1990, edition." Ante, at 501.[11] In contrast, I think that a proper respect for media neutrality suggests that the New York Times, reproduced as a collection of individual ASCII files, should be treated as a "revision" of the original edition, as long as each article explicitly refers to the original collective work and as long as substantially the rest of the collective work is, at the same time, readily accessible to the reader of the individual file. In this case, no one disputes that the first pieces of information a user sees when looking at an individual ASCII article file are the name of the publication in which the article appeared, the edition of that publication, and the location of the article within that edition. I agree with the majority that such labeling alone is insufficient to establish that the individual file exists as "part of" a revision of the original collective work. See ante, at 500-501. But such labeling is not all there is in the group of files sent to the Electronic Databases. In addition to the labels, the batch of electronic files contains the entire editorial content of the original edition of the New York Times for that day. That is, while I might agree that a single article, standing alone, even when coded with identifying information (e. g., publication, edition date, *515 headline, etc.), should not be characterized as a "part of" a larger collective work, I would not say the same about an individual article existing as "part of" a collection of articles containing all the editorial content of that day's New York Times. This is all the more true because, as the District Court correctly noted, it is the Print Publishers' selection process, the editorial process by which the staff of the New York Times, for example, decides which articles will be included in "All the News That's Fit to Print," that is the most important creative element they contribute to the collective works they publish.[12] While such superficial features as page placement and column width are lost in ASCII format, the Print Publishers' all-important editorial selection is wholly preserved in the collection of individual article files sent to the Electronic Databases. To see why an electronic version of the New York Times made up of a group of individual ASCII article files, standing alone, may be considered a ž 201(c) revision, suppose that, instead of transmitting to NEXIS the articles making up a particular day's edition, the New York Times saves all of the individual files on a single floppy disk, labels that disk "New York Times, October 31, 2000," and sells copies of the disk to users as the electronic version of that day's New York Times. The disk reproduces the creative, editorial selection of that edition of the New York Times. The reader, after all, has at his fingertips substantially all of the relevant content of the October 31 edition of the collective work. Moreover, each individual article makes explicit reference to that selection by including tags that remind the reader that it is a part of the New York Times for October 31, 2000. Such a disk might well constitute "that particular collective work"; it would surely qualify as a "revision" of the original collective *516 work. Yet all the features identified as essential by the majority and by the respondents would still be lacking. An individual looking at one of the articles contained on the disk would still see none of the original formatting context and would still be unable to flip the page. Once one accepts the premise that a disk containing all the files from the October 31, 2000, New York Times can constitute a "revision," there is no reason to treat any differently the same set of files, stored in a folder on the hard disk of a computer at the New York Times. Thus, at least before it is republished by the Electronic Databases, the collection of files that the New York Times transmits to them constitutes a revision, in electronic form, of a particular edition of the New York Times. III The next question, then, is whether anything that the Electronic Databases do to the transmitted "revision" strips it of that status. The heart of the Court's reasoning in this respect, as I understand it, is that, once received and processed by Electronic Databases, the data transmitted by the New York Times cannot be viewed as "revisions" within the meaning of ž 201(c) because of the way that data is stored and made available to the public by those Databases. First, the Court points to the fact that "the three Databases present articles to users clear of the context provided either by the original periodical editions or by any revision of those editions." Ante, at 499. I have already addressed these formatting concerns. Second, and not wholly unrelated to the first point, however, the Court appears to think that the commingling of my hypothetical collection of ASCII article files from the October 31, 2000, New York Times with similar collections of files from other editions of the New York Times (or from other periodicals) within one database would deprive that collection of revision status. See ante, at 501, n. 9. Even if my imaginary floppy disk could, in isolation, be considered a revision, the majority might *517 say, that status would be lost if the floppy disk were to contain, not only the files from the October 31, 2000, New York Times, but also from the New York Times for every other day in 2000 (and other years) and from hundreds of other periodicals. I disagree. If my hypothetical October 31, 2000, floppy disk can be a revision, I do not see why the inclusion of other editions and other periodicals is any more significant than the placement of a single edition of the New York Times in a large public library or in a bookstore. Each individual file still reminds the reader that he is viewing "part of" a particular collective work. And the entire editorial content of that work still exists at the reader's fingertips.[13] It is true that, once the revision of the October 31, 2000, New York Times is surrounded by the additional content, it can be conceptualized as existing as part of an even larger collective work (e. g., the entire NEXIS database). See ante, at 500. The question then becomes whether this ability to conceive of a revision of a collective work as existing within a larger "collective work" changes the status of the original revision. Section 201(c)'s requirement that the article be published only as "part of any revision of that collective work " does not compel any particular answer to that question. A microfilm of the New York Times for October 31, 2000, does not cease to be a revision of that individual collective work simply because it is stored on the same roll of film as other editions of the Times or on a library shelf containing hundreds of other microfilm periodicals. Nor does ž 201(c) compel the counterintuitive conclusion that the microfilm version of the Times would cease to be a revision simply because its publishers might choose to sell it on rolls of film that contained a year's editions of both the New York Times and the Herald-Tribune. Similarly, the placement of *518 our hypothetical electronic revision of the October 31, 2000, New York Times within a larger electronic database does nothing to alter either the nature of our original electronic revision or the relationship between that revision and the individual articles that exist as "part of" it. Finally, the mere fact that an individual user may either view or print copies of individual articles stored on the Electronic Databases does not change the nature of the revisions contained within those databases. The same media-specific necessities that allow the publishers to store and make available the original collective work as a collection of individual digital files make it reasonable for the Electronic Databases to enable the user to download or print only those files in which the user has a particular interest. But this is no different from microfilm. Just as nothing intrinsic in the nature of microfilm dictates to a user how much or how little of a microform edition of the New York Times she must copy, nothing intrinsic in the Electronic Databases dictates to a user how much (or how little) of a particular edition of the New York Times to view or print. It is up to the user in each instance to decide whether to employ the publisher's product in a manner that infringes either the publisher's or the author's copyright. And to the extent that the user's decision to make a copy of a particular article violates the author's copyright in that article, such infringing third-party behavior should not be attributed to the database.[14] See Sony Corp. of IV My reading of "revision," as encompassing products like the Electronic Databases, is not the only possible answer to *519 the complex questions presented by this case. It is, nevertheless, one that is consistent with the statutory text and entirely faithful to the statute's purposes. Respect for the policies motivating its enactment, to which I now turn, makes it wrong for the Court to reject this reading of ž 201(c). It is likely that the Congress that enacted the 1976 revision of the law of copyright did not anticipate the developments that occurred in the 1980's which gave rise to the practices challenged in this litigation. See Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?,[15] Thus, in resolving ambiguities in the relevant text of the statute, we should be mindful of the policies underlying copyright law. Macaulay wrote that copyright is "a tax on readers for the purpose of giving a bounty to writers." T. Macaulay, Speeches on Copyright 11 (A. Thorndike ed. 1915). That tax restricts the dissemination of writings, but only insofar as necessary to encourage their production, the bounty's basic objective. See U. S. Const., Art. I, ž 8, cl. 8. In other words, "[t]he primary purpose of copyright is not to reward the author, but is rather to secure `the general benefits derived by the public from the labors of authors.' " 1 M. Nimmer & D. Nimmer, Copyright ž 1.03[A] (2000) ); see also Breyer, The Uneasy Case for Copyright: A Study of *520 Copyright in Books, Photocopies, and Computer Programs, The majority's decision today unnecessarily subverts this fundamental goal of copyright law in favor of a narrow focus on "authorial rights." Ante, at 506. Although the desire to protect such rights is certainly a laudable sentiment,[16] copyright law demands that "private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." Twentieth Century Music The majority discounts the effect its decision will have on the availability of comprehensive digital databases, ante, at 504-505, but I am not as confident. As petitioners' amici have persuasively argued, the difficulties of locating individual freelance authors and the potential of exposure to statutory damages may well have the effect of forcing electronic archives to purge freelance pieces from their databases.[17] "The omission of these materials from electronic collections, for any reason on a large scale or even an occasional basis, undermines the principal benefits that electronic archives offer historiansÔÇöefficiency, accuracy and comprehensiveness." [18] Brief for Ken Burns et al. as Amici Curiae 13. *521 Moreover, it is far from clear that my position even deprives authors of much of anything (with the exception of perhaps the retrospective statutory damages that may well result from their victory today).[19] Imagine, for example, that one of the contributions at issue in this case were a copyrighted version of John Keats' Ode on a Grecian Urn, published on page 29 of our hypothetical October 31, 2000, New York Times. Even under my reading of ž 201(c), Keats retains valuable copyright protection. No matter how well received his ode might be, it is unlikelyÔÇöalthough admittedly possibleÔÇöthat it could be marketed as a stand-alone work of art. The ode, however, would be an obvious candidate for inclusion in an anthology of works by romantic poets, in a collection of poems by the same author, or even in "a 400-page novel quoting a [poem] in passing," ante, at 500. The author's copyright would protect his right to compensation for any such use. Cf. Moreover, the value of the ode surely would be enhanced, not decreased, by the accessibility and readership of the October 31, 2000, edition of the New York Times. The ready availability of that edition, both at the time of its first publication and subsequently in libraries and electronic databases, would be a benefit, not an injury, to most authors. Keats would benefit from the poem's continued availability to database users, by his identification as the author of the piece, and by the database's indication of the fact that the poem first appeared in a prestigious periodical on a certain date. He would not care one whit whether the database indicated *522 the formatting context of the page on which the poem appeared. What is overwhelmingly clear is that maximizing the readership of the ode would enhance the value of his remaining copyright uses. Nor is it clear that Keats will gain any prospective benefits from a victory in this case. As counsel for petitioners represented at oral argument, since 1995, the New York Times has required freelance authors to grant the Times "electronic rights" to articles. Tr. of Oral Arg. 7. And the inclusion of such a term has had no effect on the compensation authors receive. See This is understandable because, even if one accepts the majority's characterization of the Electronic Databases as collections of freestanding articles, demand for databases like NEXIS probably does not reflect a "demand for a freelance article standing alone," ante, at 497, to which the publishers are greedily helping themselves. Cf. Instead, it seems far more likely that demand for the Electronic Databases reflects demand for a product that will provide a user with the means to quickly search through scores of complete periodicals. The comments of historian Douglas Brinkley are instructive in this respect: "`As an historian, when I want to write a biography, if I'm going to write a biography of Bill Clinton, the first thing I would do would be to index The New York Times. I would work through [the] microfiche and get any time Bill Clinton's name ever appeared in The New York Times. I'd get a copy of that. So, you'd have boxes of files. So for each month, here's Clinton this month.You then would fill that in with other obvious books or articles from Foreign Affairs or For- eign Policy or The New Yorker, or the like and you'd start getting your first biography of Bill Clinton.' " Panel Discussion: The Observer's View (D. Brinkley, M. *523 Frankel, H. Sidey), White House Historical Association (Nov. 16, 2000) (CÔÇöSPAN Archives No. 160577) (quoted in Brief for Ken Burns et al. as Amici Curiae 17). Users like Douglas Brinkley do not go to NEXIS because it contains a score of individual articles by Jonathan Tasini.[20] Rather, they go to NEXIS because it contains a comprehensive and easily searchable collection of (intact) periodicals. *524 See Because it is likely that Congress did not consider the question raised by this case when drafting ž 201(c), because I think the District Court's reading of that provision is reasonable and consistent with the statute's purposes, and because the principal goals of copyright policy are better served by that reading, I would reverse the judgment of the Court of Appeals. The majority is correct that we cannot know in advance the effects of today's decision on the comprehensiveness of electronic databases. We can be fairly certain, however, that it will provide little, if any, benefit to either authors or readers.

Justice O'Connor

majority

Meghrig v. KFC Western, Inc.

1996-03-19

https://www.courtlistener.com/opinion/118007/meghrig-v-kfc-western-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118007/

1995-033

We consider whether § 7002 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S. C. § 6972, authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that does not, at the time of suit, continue to pose an endangerment to health or the environment. We conclude that it does not. I Respondent KFC Western, Inc. (KFC), owns and operates a "Kentucky Fried Chicken" restaurant on a parcel of property in Los Angeles. In 1988, KFC discovered during the course of a construction project that the property was contaminated with petroleum. The County of Los Angeles Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of the oil-tainted soil. Three years later, KFC brought this suit under the citizen suit provision of RCRA, 90 Stat. 2825, as amended, 42 *482 U. S. C. § 6972(a),[*] seeking to recover these cleanup costs from petitioners Alan and Margaret Meghrig. KFC claimed that the contaminated soil was a "solid waste" covered by RCRA, see 42 U.S. C. § 6903(27), that it had previously posed an "imminent and substantial endangerment to health or the environment," see § 6972(a)(1)(B), and that the Meghrigs were responsible for "equitable restitution" of KFC's cleanup costs under § 6972(a) because, as prior owners of the property, they had contributed to the waste's "past or present handling, storage, treatment, transportation, or disposal." See App. 12-19 (first amended complaint). The District Court held that § 6972(a) does not permit recovery of past cleanup costs and that § 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an "imminent and substantial endangerment to health or the environment" at the time suit is filed, and dismissed KFC's complaint. App. to Pet. for Cert. A21-A23. The Court of Appeals for the Ninth Circuit reversed, over a dissent, 49 F.3d 518, 524-528 (1995) (Brunetti, J.), finding that a district court had authority under § 6972(a) to award restitution of past cleanup costs, id., at 521-523, and *483 that a private party can proceed with a suit under § 6972(a)(1)(B) upon an allegation that the waste at issue presented an "imminent and substantial endangerment" at the time it was cleaned up, id., at 520-521. The Ninth Circuit's conclusion regarding the remedies available under RCRA conflicts with the decision of the Court of Appeals for the Eighth Circuit in Furrer v. Brown, 62 F.3d 1092, 1100-1101 (1995), and its interpretation of the "imminent endangerment" requirement represents a novel application of federal statutory law. We granted certiorari to address the conflict between the Circuits and to consider the correctness of the Ninth Circuit's interpretation of RCRA, 515 U.S. 1192 (1995), and now reverse. II RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. See Chicago v. Environmental Defense Fund, 511 U.S. 328, 331-332 (1994). Unlike the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42 U.S. C. § 9601 et seq. , RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards. Cf. General Electric Co. v. Litton Industrial Automation Systems, Inc., 920 F.2d 1415, 1422 (CA8 1990) (the "two. . . main purposes of CERCLA" are "prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party"). RCRA's primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, "so as to minimize the present and future threat to human health and the environment." 42 U.S. C. § 6902(b). Chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental *484 Protection Agency (EPA), see §§ 6928, 6973, but like other environmental laws, RCRA contains a citizen suit provision, § 6972, which permits private citizens to enforce its provisions in some circumstances. Two requirements of § 6972(a) defeat KFC's suit against the Meghrigs. The first concerns the necessary timing of a citizen suit brought under § 6972(a)(1)(B): That section permits a private party to bring suit against certain responsible persons, including former owners, "who ha[ve] contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." (Emphasis added.) The second defines the remedies a district court can award in a suit brought under § 6972(a)(1)(B): Section 6972(a) authorizes district courts "to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste . . . , to order such person to take such other action as may be necessary, or both." (Emphasis added.) It is apparent from the two remedies described in § 6972(a) that RCRA's citizen suit provision is not directed at providing compensation for past cleanup efforts. Under a plain reading of this remedial scheme, a private citizen suing under § 6972(a)(1)(B) could seek a mandatory injunction, i. e., one that orders a responsible party to "take action" by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i. e., one that "restrains" a responsible party from further violating RCRA. Neither remedy, however, is susceptible of the interpretation adopted by the Ninth Circuit, as neither contemplates the award of past cleanup costs, whether these are denominated "damages" or "equitable restitution." In this regard, a comparison between the relief available under RCRA's citizen suit provision and that which Congress *485 has provided in the analogous, but not parallel, provisions of CERCLA is telling. CERCLA was passed several years after RCRA went into effect, and it is designed to address many of the same toxic waste problems that inspired the passage of RCRA. Compare 42 U.S. C. § 6903(5) (RCRA definition of "hazardous waste") and § 6903(27) (RCRA definition of "solid waste") with § 9601(14) (CERCLA provision incorporating certain "hazardous substance[s]," but specifically excluding petroleum). CERCLA differs markedly from RCRA, however, in the remedies it provides. CERCLA's citizen suit provision mimics § 6972(a) in providing district courts with the authority "to order such action as may be necessary to correct the violation" of any CERCLA standard or regulation. 42 U.S. C. § 9659(c). But CERCLA expressly permits the Government to recover "all costs of removal or remedial action," § 9607(a)(4)(A), and it expressly permits the recovery of any "necessary costs of response, incurred by any . . . person consistent with the national contingency plan," § 9607(a)(4)(B). CERCLA also provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable" for these response costs. See § 9613(f)(1). Congress thus demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and that the language used to define the remedies under RCRA does not provide that remedy. That RCRA's citizen suit provision was not intended to provide a remedy for past cleanup costs is further apparent from the harm at which it is directed. Section 6972(a)(1)(B) permits a private party to bring suit only upon a showing that the solid or hazardous waste at issue "may present an imminent and substantial endangerment to health or the environment." The meaning of this timing restriction is plain: An endangerment can only be "imminent" if it "threaten[s] to occur immediately," Webster's New International Dictionary of English Language 1245 (2d ed. 1934), and the reference *486 to waste which "may present" imminent harm quite clearly excludes waste that no longer presents such a danger. As the Ninth Circuit itself intimated in Price v. United States Navy, 39 F.3d 1011, 1019 (1994), this language "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later." It follows that § 6972(a) was designed to provide a remedy that ameliorates present or obviates the risk of future "imminent" harms, not a remedy that compensates for past cleanup efforts. Cf. § 6902(b) (national policy behind RCRA is "to minimize the present and future threat to human health and the environment"). Other aspects of RCRA's enforcement scheme strongly support this conclusion. Unlike CERCLA, RCRA contains no statute of limitations, compare § 9613(g)(2) (limitations period in suits under CERCLA § 9607), and it does not require a showing that the response costs being sought are reasonable, compare §§ 9607(a)(4)(A) and (B) (costs recovered under CERCLA must be "consistent with the national contingency plan"). If Congress had intended § 6972(a) to function as a cost-recovery mechanism, the absence of these provisions would be striking. Moreover, with one limited exception, see Hallstrom v. Tillamook County, 493 U.S. 20, 26-27 (1989) (noting exception to notice requirement "when there is a danger that hazardous waste will be discharged"), a private party may not bring suit under § 6972(a)(1)(B) without first giving 90 days' notice to the Administrator of the EPA, to "the State in which the alleged endangerment may occur," and to potential defendants, see §§ 6972(b)(2)(A)(i)— (iii). And no citizen suit can proceed if either the EPA or the State has commenced, and is diligently prosecuting, a separate enforcement action, see §§ 6972(b)(2)(B) and (C). Therefore, if RCRA were designed to compensate private parties for their past cleanup efforts, it would be a wholly irrational mechanism for doing so. Those parties with insubstantial problems, problems that neither the State nor *487 the Federal Government feel compelled to address, could recover their response costs, whereas those parties whose waste problems were sufficiently severe as to attract the attention of Government officials would be left without a recovery. Though it agrees that KFC's complaint is defective for failing properly to allege an "imminent and substantial endangerment," the Government (as amicus ) nonetheless joins KFC in arguing that § 6972(a) does not in all circumstances preclude an award of past cleanup costs. See Brief for United States as Amicus Curiae 22-28. The Government posits a situation in which suit is properly brought while the waste at issue continues to pose an imminent endangerment, and suggests that the plaintiff in such a case could seek equitable restitution of money previously spent on cleanup efforts. Echoing a similar argument made by KFC, see Brief for Respondent 11-19, the Government does not rely on the remedies expressly provided in § 6972(a), but rather cites a line of cases holding that district courts retain inherent authority to award any equitable remedy that is not expressly taken away from them by Congress. See, e. g., Porter v. Warner Holding Co., 328 U.S. 395 (1946); Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967); Hecht Co. v. Bowles, 321 U.S. 321 (1944). RCRA does not prevent a private party from recovering its cleanup costs under other federal or state laws, see § 6972(f) (preserving remedies under statutory and common law), but the limited remedies described in § 6972(a), along with the stark differences between the language of that section and the cost recovery provisions of CERCLA, amply demonstrate that Congress did not intend for a private citizen to be able to undertake a cleanup and then proceed to recover its costs under RCRA. As we explained in Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 14 (1981), where Congress has provided "elaborate enforcement provisions" for remedying the violation *488 of a federal statute, as Congress has done with RCRA and CERCLA, "it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under" the statute. "`[I]t 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.' " Id., at 14-15 (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)). Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, cf. United States v. Price, 688 F.2d 204, 211-213 (CA3 1982) (requiring funding of a diagnostic study is an appropriate form of relief in a suit brought by the Administrator under § 6973), or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process, we agree with the Meghrigs that a private party cannot recover the cost of a past cleanup effort under RCRA, and that KFC's complaint is defective for the reasons stated by the District Court. Section 6972(a) does not contemplate the award of past cleanup costs, and § 6972(a)(1)(B) permits a private party to bring suit only upon an allegation that the contaminated site presently poses an "imminent and substantial endangerment to health or the environment," and not upon an allegation that it posed such an endangerment at some time in the past. The judgment of the Ninth Circuit is reversed. It is so ordered.

We consider whether 7002 of the Resource Conservation and Recovery Act of 76 (RCRA), 42 U.S. C. 6972, authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that does not, at the time of suit, continue to pose an endangerment to health or the environment. We conclude that it does not. I Respondent KFC Western, Inc. (KFC), owns and operates a "Kentucky Fried Chicken" restaurant on a parcel of property in Los Angeles. In 88, KFC discovered during the course of a construction project that the property was contaminated with petroleum. The County of Los Angeles Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of the oil-tainted soil. Three years later, KFC brought this suit under the citizen suit provision of RCRA, as amended, 42 *482 U. S. C. 6972(a),[*] seeking to recover these cleanup costs from petitioners Alan and Margaret Meghrig. KFC claimed that the contaminated soil was a "solid waste" covered by RCRA, see 42 U.S. C. 6903(27), that it had previously posed an "imminent and substantial endangerment to health or the environment," see 6972(a)(1)(B), and that the Meghrigs were responsible for "equitable restitution" of KFC's cleanup costs under 6972(a) because, as prior owners of the property, they had contributed to the waste's "past or present handling, storage, treatment, transportation, or disposal." See App. 12- (first amended complaint). The District Court held that 6972(a) does not permit recovery of past cleanup costs and that 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an "imminent and substantial endangerment to health or the environment" at the time suit is filed, and dismissed KFC's complaint. App. to Pet. for Cert. A21-A23. The Court of Appeals for the Ninth Circuit reversed, over a dissent, finding that a district court had authority under 6972(a) to award restitution of past cleanup costs, and *483 that a private party can proceed with a suit under 6972(a)(1)(B) upon an allegation that the waste at issue presented an "imminent and substantial endangerment" at the time it was cleaned up, The Ninth Circuit's conclusion regarding the remedies available under RCRA conflicts with the decision of the Court of Appeals for the Eighth Circuit in and its interpretation of the "imminent endangerment" requirement represents a novel application of federal statutory law. We granted certiorari to address the conflict between the Circuits and to consider the correctness of the Ninth Circuit's interpretation of RCRA, and now reverse. II RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. See Unlike the Comprehensive Environmental Response, Compensation, and Liability Act of 80 (CERCLA), as amended, 42 U.S. C. 9601 et seq. RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards. Cf. General Electric RCRA's primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, "so as to minimize the present and future threat to human health and the environment." 42 U.S. C. 6902(b). Chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental *484 Protection Agency (EPA), see 6928, 6973, but like other environmental laws, RCRA contains a citizen suit provision, 6972, which permits private citizens to enforce its provisions in some circumstances. Two requirements of 6972(a) defeat KFC's suit against the Meghrigs. The first concerns the necessary timing of a citizen suit brought under 6972(a)(1)(B): That section permits a private party to bring suit against certain responsible persons, including former owners, "who ha[ve] contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." (Emphasis added.) The second defines the remedies a district court can award in a suit brought under 6972(a)(1)(B): Section 6972(a) authorizes district courts "to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste to order such person to take such other action as may be necessary, or both." (Emphasis added.) It is apparent from the two remedies described in 6972(a) that RCRA's citizen suit provision is not directed at providing compensation for past cleanup efforts. Under a plain reading of this remedial scheme, a private citizen suing under 6972(a)(1)(B) could seek a mandatory injunction, i. e., one that orders a responsible party to "take action" by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i. e., one that "restrains" a responsible party from further violating RCRA. Neither remedy, however, is susceptible of the interpretation adopted by the Ninth Circuit, as neither contemplates the award of past cleanup costs, whether these are denominated "damages" or "equitable restitution." In this regard, a comparison between the relief available under RCRA's citizen suit provision and that which Congress *485 has provided in the analogous, but not parallel, provisions of CERCLA is telling. CERCLA was passed several years after RCRA went into effect, and it is designed to address many of the same toxic waste problems that inspired the passage of RCRA. Compare 42 U.S. C. 6903(5) (RCRA definition of "hazardous waste") and 6903(27) (RCRA definition of "solid waste") with 9601() (CERCLA provision incorporating certain "hazardous substance[s]," but specifically excluding petroleum). CERCLA differs markedly from RCRA, however, in the remedies it provides. CERCLA's citizen suit provision mimics 6972(a) in providing district courts with the authority "to order such action as may be necessary to correct the violation" of any CERCLA standard or regulation. 42 U.S. C. 9659(c). But CERCLA expressly permits the Government to recover "all costs of removal or remedial action," 9607(a)(4)(A), and it expressly permits the recovery of any "necessary costs of response, incurred by any person consistent with the national contingency plan," 9607(a)(4)(B). CERCLA also provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable" for these response costs. See 9613(f)(1). Congress thus demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and that the language used to define the remedies under RCRA does not provide that remedy. That RCRA's citizen suit provision was not intended to provide a remedy for past cleanup costs is further apparent from the harm at which it is directed. Section 6972(a)(1)(B) permits a private party to bring suit only upon a showing that the solid or hazardous waste at issue "may present an imminent and substantial endangerment to health or the environment." The meaning of this timing restriction is plain: An endangerment can only be "imminent" if it "threaten[s] to occur immediately," Webster's New International Dictionary of English Language 1245 (2d ed. 34), and the reference *486 to waste which "may present" imminent harm quite clearly excludes waste that no longer presents such a danger. As the Ninth Circuit itself intimated in this language "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later." It follows that 6972(a) was designed to provide a remedy that ameliorates present or obviates the risk of future "imminent" harms, not a remedy that compensates for past cleanup efforts. Cf. 6902(b) (national policy behind RCRA is "to minimize the present and future threat to human health and the environment"). Other aspects of RCRA's enforcement scheme strongly support this conclusion. Unlike CERCLA, RCRA contains no statute of limitations, compare 9613(g)(2) (limitations period in suits under CERCLA 9607), and it does not require a showing that the response costs being sought are reasonable, compare 9607(a)(4)(A) and (B) (costs recovered under CERCLA must be "consistent with the national contingency plan"). If Congress had intended 6972(a) to function as a cost-recovery mechanism, the absence of these provisions would be striking. Moreover, with one limited exception, see a private party may not bring suit under 6972(a)(1)(B) without first giving 90 days' notice to the Administrator of the EPA, to "the State in which the alleged endangerment may occur," and to potential defendants, see 6972(b)(2)(A)(i)— (iii). And no citizen suit can proceed if either the EPA or the State has commenced, and is diligently prosecuting, a separate enforcement action, see 6972(b)(2)(B) and (C). Therefore, if RCRA were designed to compensate private parties for their past cleanup efforts, it would be a wholly irrational mechanism for doing so. Those parties with insubstantial problems, problems that neither the State nor *487 the Federal Government feel compelled to address, could recover their response costs, whereas those parties whose waste problems were sufficiently severe as to attract the attention of Government officials would be left without a recovery. Though it agrees that KFC's complaint is defective for failing properly to allege an "imminent and substantial endangerment," the Government (as amicus ) nonetheless joins KFC in arguing that 6972(a) does not in all circumstances preclude an award of past cleanup costs. See Brief for United States as Amicus Curiae 22-28. The Government posits a situation in which suit is properly brought while the waste at issue continues to pose an imminent endangerment, and suggests that the plaintiff in such a case could seek equitable restitution of money previously spent on cleanup efforts. Echoing a similar argument made by KFC, see Brief for Respondent 11-, the Government does not rely on the remedies expressly provided in 6972(a), but rather cites a line of cases holding that district courts retain inherent authority to award any equitable remedy that is not expressly taken away from them by Congress. See, e. g., ; Wyandotte Transp. ; Hecht RCRA does not prevent a private party from recovering its cleanup costs under other federal or state laws, see 6972(f) (preserving remedies under statutory and common law), but the limited remedies described in 6972(a), along with the stark differences between the language of that section and the cost recovery provisions of CERCLA, amply demonstrate that Congress did not intend for a private citizen to be able to undertake a cleanup and then proceed to recover its costs under RCRA. As we explained in Middlesex County Sewerage where Congress has provided "elaborate enforcement provisions" for remedying the violation *488 of a federal statute, as Congress has done with RCRA and CERCLA, "it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under" the statute. "`[I]t 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.' " at -15 ). Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, cf. United (CA3 82) (requiring funding of a diagnostic study is an appropriate form of relief in a suit brought by the Administrator under 6973), or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process, we agree with the Meghrigs that a private party cannot recover the cost of a past cleanup effort under RCRA, and that KFC's complaint is defective for the reasons stated by the District Court. Section 6972(a) does not contemplate the award of past cleanup costs, and 6972(a)(1)(B) permits a private party to bring suit only upon an allegation that the contaminated site presently poses an "imminent and substantial endangerment to health or the environment," and not upon an allegation that it posed such an endangerment at some time in the past. The judgment of the Ninth Circuit is reversed. It is so ordered.

Justice Alito

majority

Mac's Shell Service, Inc. v. Shell Oil Products Co.

2010-03-02

https://www.courtlistener.com/opinion/1730/macs-shell-service-inc-v-shell-oil-products-co/

https://www.courtlistener.com/api/rest/v3/clusters/1730/

2009-027

The Petroleum Marketing Practices Act (PMPA or Act), 92 Stat. 322, 15 U.S. C. §2801 et seq., limits the circum stances in which petroleum franchisors may “terminate” a franchise or “fail to renew” a franchise relationship. §2802. In these consolidated cases, service-station fran chisees brought suit under the Act, alleging that a fran chisor had constructively “terminate[d]” their franchises and had constructively “fail[ed] to renew” their franchise relationships. They asserted these claims even though the conduct of which they complained had not compelled any of them to abandon their franchises and even though they had been offered and had accepted renewal agreements. We hold that a franchisee cannot recover for constructive termination under the PMPA if the franchisor’s allegedly 2 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court wrongful conduct did not compel the franchisee to aban don its franchise. Additionally, we conclude that a fran chisee who signs and operates under a renewal agreement with a franchisor may not maintain a claim for construc tive nonrenewal. We therefore reverse in part and affirm in part. I A Petroleum refiners and distributors supply motor fuel to the public through service stations that often are operated by independent franchisees. In the typical franchise arrangement, the franchisor leases the service-station premises to the franchisee, grants the franchisee the right to use the franchisor’s trademark, and agrees to sell motor fuel to the franchisee for resale. Franchise agreements remain in effect for a stated term, after which the parties can opt to renew the franchise relationship by executing a new agreement. Enacted in 1978, the PMPA was a response to wide spread concern over increasing numbers of allegedly un fair franchise terminations and nonrenewals in the petro leum industry. See, e.g., Comment, 1980 Duke L. J. 522, 524–531. The Act establishes minimum federal standards governing the termination and nonrenewal of petroleum franchises. Under the Act’s operative provisions, a fran chisor may “terminate” a “franchise” during the term stated in the franchise agreement and may “fail to renew” a “franchise relationship” at the conclusion of that term only if the franchisor provides written notice and takes the action in question for a reason specifically recognized in the statute. 15 U.S. C. §§2802, 2804. Consistent with the typical franchise arrangement, a “franchise” is defined as “any contract” that authorizes a franchisee to use the franchisor’s trademark, as well as any associated agree ment providing for the supply of motor fuel or authorizing Cite as: 559 U. S. ____ (2010) 3 Opinion of the Court the franchisee to occupy a service station owned by the franchisor.1 §2801(1). The Act defines a “franchise rela tionship” in more general terms: the parties’ “respective motor fuel marketing or distribution obligations and re sponsibilities” that result from the franchise arrangement. §2801(2). To enforce these provisions, a franchisee may bring suit in federal court against any franchisor that fails to comply with the Act’s restrictions on terminations and nonrenew als. See §2805. Successful franchisees can benefit from a wide range of remedies, including compensatory and punitive damages, reasonable attorney’s fees and expert costs, and equitable relief. See §2805(b), (d). The Act also requires district courts to grant preliminary injunctive relief to aggrieved franchisees, if there are “sufficiently serious questions going to the merits” that present “a fair ground for litigation” and the balance of hardships favors such relief. §2805(b)(2). B This litigation involves a dispute between Shell Oil Company (Shell), a petroleum franchisor, and several Shell franchisees in Massachusetts.2 Pursuant to their franchise agreements with Shell, each franchisee was required to pay Shell monthly rent for use of the service station premises. For many years, Shell offered the fran chisees a rent subsidy that reduced the monthly rent by a set amount for every gallon of motor fuel a franchisee sold above a specified threshold. Shell renewed the subsidy annually through notices that “explicitly provided for —————— 1 Courts sometimes describe these three types of agreements as the “statutory elements” of a petroleum franchise. See, e.g., Marcoux v. Shell Oil Prods. Co., 524 F.3d 33, 37, n. 1 (CA1 2008). 2 Shell Oil Products Company LLC, another party in this litigation, is a wholly owned subsidiary of Shell Oil Company. See Brief for Peti tioners in No. 08–372, p. iii. 4 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court cancellation [of the rent subsidy] with thirty days’ notice.” Marcoux v. Shell Oil Prods. Co., 524 F.3d 33, 38 (CA1 2008). Nonetheless, Shell representatives made various oral representations to the franchisees “that the [s]ubsidy or something like it would always exist.” Ibid. In 1998, Shell joined with two other oil companies to create Motiva Enterprises LLC (Motiva), a joint venture that combined the companies’ petroleum-marketing opera tions in the eastern United States. Id., at 37. Shell as signed to Motiva its rights and obligations under the relevant franchise agreements. Motiva, in turn, took two actions that led to this lawsuit. First, effective January 1, 2000, Motiva ended the volume-based rent subsidy, thus increasing the franchisees’ rent. Id., at 38. Second, as each franchise agreement expired, Motiva offered the franchisees new agreements that contained a different formula for calculating rent. For some (but not all) of the franchisees, annual rent was greater under the new formula. C In July 2001, 63 Shell franchisees (hereinafter dealers) filed suit against Shell and Motiva in Federal District Court. Their complaint alleged that Motiva’s discontinua tion of the rent subsidy constituted a breach of contract under state law. Additionally, the dealers asserted two claims under the PMPA. First, they maintained that Shell and Motiva, by eliminating the rent subsidy, had “con structively terminated” their franchises in violation of the Act. Second, they claimed that Motiva’s offer of new fran chise agreements that calculated rent using a different formula amounted to a “constructive nonrenewal” of their franchise relationships.3 —————— 3 The dealers also claimed that Shell and Motiva had violated the Uniform Commercial Code, as adopted in Massachusetts, by setting unreasonable prices under the open-price terms of their fuel-supply Cite as: 559 U. S. ____ (2010) 5 Opinion of the Court After a 2-week trial involving eight of the dealers, the jury found against Shell and Motiva on all claims. Both before and after the jury’s verdict, Shell and Motiva moved for judgment as a matter of law on the dealers’ two PMPA claims. They argued that they could not be found liable for constructive termination under the Act because none of the dealers had abandoned their franchises in response to Motiva’s elimination of the rent subsidy––something Shell and Motiva said was a necessary element of any construc tive termination claim. Similarly, they argued that the dealers’ constructive nonrenewal claims necessarily failed because seven of the eight dealers had signed and oper ated under renewal agreements with Motiva, and the eighth had sold his franchise prior to the expiration of his franchise agreement. The District Court denied these motions, and Shell and Motiva appealed. The First Circuit affirmed in part and reversed in part. In affirming the judgment on the dealers’ constructive termination claims, the Court of Appeals held that a fran chisee is not required to abandon its franchise to recover for constructive termination under the PMPA. See 524 F.3d, at 45–47. Instead, the court ruled, a simple breach of contract by an assignee of a franchise agreement can amount to constructive termination under the Act, so long as the breach resulted in “such a material change that it effectively ended the lease, even though the [franchisee] continued to operate [its franchise].” Id., at 46 (internal quotation marks omitted). Turning to the dealers’ con structive nonrenewal claims, the First Circuit agreed with Shell and Motiva that a franchisee cannot maintain a claim for unlawful nonrenewal under the PMPA “where the franchisee has signed and operates under the renewal —————— agreements with the dealers. The jury found in favor of the dealers on this claim, and the Court of Appeals affirmed. 524 F.3d, at 51. That issue is not before us. 6 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court agreement complained of.” Id., at 49. The court thus reversed the judgment on those claims. We granted certiorari. See 557 U. S. ___ (2009). II The first question we are asked to decide is whether a service-station franchisee may recover for constructive termination under the PMPA when the franchisor’s alleg edly wrongful conduct did not force the franchisee to abandon its franchise. For the reasons that follow, we conclude that a necessary element of any constructive termination claim under the Act is that the franchisor’s conduct forced an end to the franchisee’s use of the fran chisor’s trademark, purchase of the franchisor’s fuel, or occupation of the franchisor’s service station.4 A When given its ordinary meaning, the text of the PMPA prohibits only that franchisor conduct that has the effect of ending a franchise. As relevant here, the Act provides that “no franchisor . . . may . . . terminate any franchise,” except for an enumerated reason and after providing written notice. 15 U.S. C. §2802(a)–(b). The Act specifies that “[t]he term ‘termination’ includes cancellation,” §2801(17), but it does not further define the term “termi nate” or the incorporated term “cancel.” We therefore give —————— 4 Becauseresolving this question is sufficient to decide these cases, we need not address Shell and Motiva’s alternative argument that the PMPA does not embrace claims for constructive termination at all. Several Courts of Appeals have held that the Act does create a cause of action for constructive termination. See, e.g., 524 F.3d, at 44–45 (case below); Clark v. BP Oil Co., 137 F.3d 386, 390–391 (CA6 1998); Shukla v. BP Exploration & Oil, Inc., 115 F.3d 849, 852–853 (CA11 1997). Others have reserved judgment on the issue. See, e.g., Abrams Shell v. Shell Oil Co., 343 F.3d 482, 486–488 (CA5 2003); Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co. of Cal., 153 F.3d 938, 948 (CA9 1998). We leave the question for another day. Cite as: 559 U. S. ____ (2010) 7 Opinion of the Court those terms their ordinary meanings. See Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995). The word “terminate” ordinarily means “put an end to.” Webster’s New International Dictionary 2605 (2d ed. 1957); see also The Random House Dictionary of the Eng lish Language 1465 (1967). The term “cancel” carries a similar meaning: to “annul or destroy.” Webster’s, supra, at 389; see also Random House, supra, at 215 (“to make void; revoke; annul”). The object of the verb “terminate” is the noun “franchise,” a term the Act defines as “any con tract” for the provision of one (or more) of the three ele ments of a typical petroleum franchise. §2801(1). Thus, when given its ordinary meaning, the Act is violated only if an agreement for the use of a trademark, purchase of motor fuel, or lease of a premises is “put [to] an end” or “annul[ed] or destroy[ed].” Conduct that does not force an end to the franchise, in contrast, is not prohibited by the Act’s plain terms. The same conclusion follows even if Congress was using the words “terminate” and “cancel” in their technical, rather than ordinary, senses. When Congress enacted the PMPA, those terms had established meanings under the Uniform Commercial Code.5 Under both definitions, —————— 5 The difference between a “termination” and a “cancellation” under the Uniform Commercial Code relates to how the contracting party justifies its ending of the contractual relationship. A “termination” occurs when “either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach.” U. C. C. §2–106(3) (1972 ed.). By contrast, a “cancellation” occurs when “either party puts an end to the contract for breach by the other.” §2–106(4). That difference might well explain why Congress felt compelled to specify that “cancellation[s],” no less than “termination[s],” are covered by the Act. Prior to the PMPA, franchisors often leveraged their greater bargaining power to end franchise agreements for minor or technical breaches by the franchisee. See, e.g., Chestnut Hill Gulf, Inc. v. Cumberland Farms, Inc., 940 F.2d 744, 746–747 (CA1 1991). By specifying that the Act covers “cancellation[s]” as well as “termina 8 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court however, a “termination” or “cancellation” occurs only when a contracting party “puts an end to the contract.” U. C. C. §2–106(3)–(4) (1972 ed.); see also U. C. C. §2– 106(3)–(4), 1 U. L. A. 695, 695–696 (2004). Thus, a fran chisee who continues operating a franchise—occupying the same premises, receiving the same fuel, and using the same trademark—has not had the franchise “termi nate[d]” in either the ordinary or technical sense of the word. Requiring franchisees to abandon their franchises before claiming constructive termination is also consistent with the general understanding of the doctrine of constructive termination. As applied in analogous legal contexts—both now and at the time Congress enacted the PMPA—a plaintiff must actually sever a particular legal relationship in order to maintain a claim for constructive termination. For example, courts have long recognized a theory of constructive discharge in the field of employment law. See Pennsylvania State Police v. Suders, 542 U.S. 129, 141– 143 (2004) (tracing the doctrine to the 1930’s). To recover for constructive discharge, however, an employee gener ally is required to quit his or her job. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 1449 (4th ed. 2007); 3 L. Larson, Labor and Employment Law §59.05[8] (2009); 2 EEOC Compliance Manual §612.9(a) (2008); cf. Suders, supra, at 141–143, 148; Young v. South western Savings & Loan Assn., 509 F.2d 140, 144 (CA5 1975); Muller v. United States Steel Corp., 509 F.2d 923, 929 (CA10 1975). Similarly, landlord-tenant law has long recognized the concept of constructive eviction. See Ra pacz, Origin and Evolution of Constructive Eviction in the United States, 1 DePaul L. Rev. 69 (1951). The general —————— tion[s],” Congress foreclosed any argument that a termination for breach is not covered by the Act because it is technically a “cancella tion” rather than a “termination.” Cite as: 559 U. S. ____ (2010) 9 Opinion of the Court rule under that doctrine is that a tenant must actually move out in order to claim constructive eviction. See id., at 75; Glendon, The Transformation of American Land lord-Tenant Law, 23 Boston College L. Rev. 503, 513–514 (1982); 1 H. Tiffany, Real Property §§141, 143 (3d ed. 1939).6 As generally understood in these and other contexts, a termination is deemed “constructive” because it is the plaintiff, rather than the defendant, who formally puts an end to the particular legal relationship—not because there is no end to the relationship at all. There is no reason why a different understanding should apply to constructive termination claims under the PMPA. At the time when it enacted the statute, Congress presumably was aware of how courts applied the doctrine of constructive termina tion in these analogous legal contexts. See Fitzgerald v. Barnstable School Comm., 555 U. S. ___, ___ (2009) (slip op, at 11–12). And in the absence of any contrary evi dence, we think it reasonable to interpret the Act in a way that is consistent with this well-established body of law. The Court of Appeals was of the view that analogizing to doctrines of constructive termination in other contexts was inappropriate because “sunk costs, optimism, and the —————— 6 Before Congress enacted the PMPA, at least one court, it is true, had held that a tenant asserting constructive eviction could obtain declaratory relief without abandoning the premises—although the court observed that the tenant still would have to abandon the premises in order to obtain rescission. See Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 129–130, 163 N.E.2d 4, 7–8 (1959). But as even the dealers concede, see Tr. of Oral Arg. 37–38, the clear majority of authority required a tenant to leave the premises before claiming constructive eviction. For similar reasons, the Second Restatement of Property is of no help to the dealers. Although it would allow a tenant to bring a constructive eviction claim without moving out, it noted that this proposition was “contrary to the present weight of judicial authority.” 1 Restatement (Second) of Property §6.1, Reporter’s Note 1, p. 230 (1976). 10 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court habit of years might lead franchisees to try to make the new arrangements work, even when the terms have changed so materially as to make success impossible.” 524 F.3d, at 46. But surely these same factors compel em ployees and tenants—no less than service-station franchi sees—to try to make their changed arrangements work. Nonetheless, courts have long required plaintiffs asserting such claims to show an actual severance of the relevant legal relationship. We see no reason for a different rule here. Additionally, allowing franchisees to obtain PMPA relief for conduct that does not force an end to a franchise would extend the reach of the Act much further than its text and structure suggest. Prior to 1978, the regulation of petro leum franchise agreements was largely a matter of state law. See Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 861 (CA7 2002); Comment, 32 Emory L. J. 273, 277– 283 (1983). In enacting the PMPA, Congress did not regulate every aspect of the petroleum franchise relation ship but instead federalized only the two parts of that relationship with which it was most concerned: the cir cumstances in which franchisors may terminate a fran chise or decline to renew a franchise relationship. See 15 U.S. C. §2802; Dersch Energies, supra, at 861–862. Con gress left undisturbed state-law regulation of other types of disputes between petroleum franchisors and franchi sees. See §2806(a) (pre-empting only those state laws governing franchise terminations or nonrenewals). The dealers would have us interpret the PMPA in a manner that ignores the Act’s limited scope. On their view, and in the view of the Court of Appeals, the PMPA prohibits, not just unlawful terminations and nonrenew als, but also certain serious breaches of contract that do not cause an end to the franchise. See Brief for Respon dents in No. 08–372, pp. 28–35 (hereinafter Respondents’ Brief); 524 F.3d, at 44–47. Reading the Act to prohibit Cite as: 559 U. S. ____ (2010) 11 Opinion of the Court simple breaches of contract, however, would be inconsis tent with the Act’s limited purpose and would further expand federal law into a domain traditionally reserved for the States. Without a clearer indication that Congress intended to federalize such a broad swath of the law gov erning petroleum franchise agreements, we decline to adopt an interpretation of the Act that would have such sweeping consequences. See, e.g., United States v. Bass, 404 U.S. 336, 349 (1971).7 Finally, important practical considerations inform our decision. Adopting the dealers’ reading of the PMPA would require us to articulate a standard for identifying those breaches of contract that should be treated as effec tively ending a franchise, even though the franchisee in fact continues to use the franchisor’s trademark, purchase the franchisor’s fuel, and occupy the service-station prem ises.8 We think any such standard would be indetermi nate and unworkable. How is a court to determine —————— 7 Adopting such a broad reading of the PMPA also would have serious implications for run-of-the-mill franchise disputes. The Act requires courts to award attorney’s fees and expert-witness fees in any case in which a plaintiff recovers more than nominal damages. See 15 U.S. C. §2805(d)(1)(C). The Act also permits punitive damages, §2805(d)(1)(B), a remedy ordinarily not available in breach-of-contract actions, see Barnes v. Gorman, 536 U.S. 181, 187–188 (2002). Accepting the dealers’ reading of the statute, therefore, would turn everyday contract disputes into high-stakes affairs. 8 The First Circuit, for example, approved of a test that asks whether the breach resulted in “such a material change that it effectively ended the lease, even though the plaintiffs continued to operate [their fran chises].” 524 F.3d, at 46 (internal quotation marks omitted). That standard, it seems to us, does little more than restate the relevant question. While we do not decide whether the PMPA contemplates claims for constructive termination, we observe that the Court of Appeals’ unwillingness or inability to establish a more concrete stan dard underscores the difficulties and inherent contradictions involved in crafting a standard for finding a “termination” when no termination has in fact occurred. 12 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court whether a breach is serious enough effectively to end a franchise when the franchisee is still willing and able to continue its operations? And how is a franchisor to know in advance which breaches a court will later determine to have been so serious? The dealers have not provided answers to these questions. Nor could they. Any standard for identifying when a simple breach of contract amounts to a PMPA termination, when all three statutory elements remain operational, simply evades coherent formulation. B The dealers suggest that this interpretation of the PMPA fails to provide franchisees with much-needed protection from unfair and coercive franchisor conduct that does not force an end to the franchise. That argu ment, however, ignores the fact that franchisees still have state-law remedies available to them. The pre-emptive scope of the PMPA is limited: The Act pre-empts only those state or local laws that govern the termination of petroleum franchises or the nonrenewal of petroleum franchise relationships. See 15 U.S. C. §2806(a). Outside of those areas, therefore, franchisees can still rely on state-law remedies to address wrongful franchisor conduct that does not have the effect of ending the franchise. Indeed, that happened in this very lawsuit. The dealers argued in the District Court that Motiva’s elimination of the rent subsidy not only constructively terminated their franchises in violation of the PMPA but also amounted to a breach of contract under state law. The jury found in their favor on their state-law claims and awarded them almost $1.3 million in damages. See App. 376–379. Thus, the dealers’ own experience demonstrates that franchisees do not need a PMPA remedy to have meaningful protec tion from abusive franchisor conduct. The dealers also charge that this interpretation of the PMPA cannot be correct because it renders other provi Cite as: 559 U. S. ____ (2010) 13 Opinion of the Court sions of the Act meaningless. Respondents’ Brief 21–22, 24–25. While we agree that we normally should construe statutes “in a manner that gives effect to all of their provi sions,” we believe our interpretation is faithful to this “well-established principl[e] of statutory interpretation.” United States ex rel. Eisenstein v. City of New York, 556 U. S. ___, ___ (2009) (slip op., at 5) To begin, the dealers insist that our reading of the term “terminate” will require franchisees to go out of business before they can obtain preliminary relief and thus will render useless the Act’s preliminary injunction mecha nism. We disagree. To obtain a preliminary injunction, it is true, a franchisee must show, among other things, that “the franchise of which he is a party has been terminated.” 15 U.S. C. §2805(b)(2)(A)(i) (emphasis added). But that does not necessarily mean that a franchisee must go out of business before obtaining an injunction. For example, in cases of actual termination, the Act requires franchisors to provide franchisees with written notice of termination well in advance of the date on which the termination “takes effect.” §2804(a). A franchisee that receives notice of termination “has been terminated” within the meaning of §2805(b)(2)(A)(i), even though the termination “takes effect” on a later date, just as an employee who receives notice of discharge can be accurately described as having been discharged, even though the employee’s last day at work may perhaps be weeks later. Thus, franchisees that receive notice of impending termination can invoke the protections of the Act’s preliminary injunction mechanism well before having to go out of business.9 Contrary to the —————— 9 The Government reads the Act to permit a dealer to seek prelimi nary injunctive relief if a franchisor announces its “intent to engage in conduct that would leave the franchisee no reasonable alternative but to abandon” one (or more) of the franchise elements. Brief for United States as Amicus Curiae 21. Because we do not decide whether the PMPA permits constructive termination claims at all, see n. 4, supra, 14 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court dealers’ assertions, therefore, our interpretation of the Act gives meaningful effect to the PMPA’s preliminary injunc tion provisions. Our interpretation also gives effect to the Act’s alterna tive statute-of-limitations accrual dates. The 1-year limi tations period governing PMPA claims runs from the later of either (1) “the date of termination of the franchise” or (2) “the date the franchisor fails to comply with the re quirements of” the Act. §2805(a). Some violations of the PMPA, however, cannot occur until after a franchise has been terminated. See, e.g., §2802(d)(1) (franchisor must share with a franchisee certain parts of a condemnation award when the termination was the result of a condem nation or taking); §2802(d)(2) (franchisor must grant a franchisee a right of first refusal if the franchise was terminated due to the destruction of the service station and the station subsequently is rebuilt). The second ac crual date listed in §2805(a), therefore, shows only that the limitations period runs from the date of these types of post-termination violations. It does not suggest that Congress intended franchisees to maintain claims under the PMPA to redress franchisor conduct that does not force an end to the franchise. * * * We therefore hold that a necessary element of any con structive termination claim under the PMPA is that the complained-of conduct forced an end to the franchisee’s use of the franchisor’s trademark, purchase of the franchi sor’s fuel, or occupation of the franchisor’s service station. Because none of the dealers in this litigation abandoned any element of their franchise operations in response to Motiva’s elimination of the rent subsidy,10 they cannot —————— we need not address this argument. 10 After Motiva withdrew the rent subsidy, seven of the dealers con tinued operating their franchises for the full terms of their franchise Cite as: 559 U. S. ____ (2010) 15 Opinion of the Court maintain a constructive termination claim on the basis of that conduct. III The second question we are asked to decide is whether a franchisee who is offered and signs a renewal agreement can nonetheless maintain a claim for “constructive nonre newal” under the PMPA. For reasons similar to those given above, we agree with the Court of Appeals that a franchisee that chooses to accept a renewal agreement cannot thereafter assert a claim for unlawful nonrenewal under the Act.11 The plain text of the statute leaves no room for a fran chisee to claim that a franchisor has unlawfully declined —————— agreements and then signed new agreements that did not include the subsidy. See App. 161, 164, 316–321 (Mac’s Shell Service, Inc.); id., at 138–139, 314–315 (Cynthia Karol); id., at 154–155, 310–311 (Akmal, Inc.); id., at 185–186, 268–269 (Sid Prashad); id., at 190, 312–313 (J & M Avramidis, Inc.); id., at 179–182, 322–323 (RAM Corp., Inc.); id., at 148–153, 324–325 (John A. Sullivan). These dealers necessarily cannot establish that the elimination of the subsidy “terminate[d]” their franchises “prior to the conclusion of the term” stated in their franchise agreements. 15 U.S. C. §2802(a)(1). Whether they ceased operations after their franchise agreements expired, moreover, is irrelevant. Indeed, in the Court of Appeals, the dealers abandoned any claim for constructive termination based on the subsequent franchise agree ments. See Appellees’ Brief in No. 05–2770 etc. (CA1), p. 40, n. 29. One dealer did leave his franchise before his franchise agreement expired. App. 204, 330–331 (Stephen Pisarczyk). But that dealer not only continued to operate for seven months after the subsidy ended, id., at 204, but also during that period entered into an agreement with Motiva to extend the term of his franchise agreement, id., at 330–331. Moreover, that dealer had been planning to leave the service-station business before Motiva eliminated the subsidy, and he never claimed that his decision to leave had anything to do with Motiva’s rent policies. See id., at 202–207. 11 As is true with respect to the dealers’ constructive termination claims, it is not necessary for us to decide in these cases whether the Act at all recognizes claims for “constructive nonrenewal.” We there fore do not express a view on that question. 16 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court to renew a franchise relationship—constructively or oth erwise—when the franchisee has in fact accepted a new franchise agreement. As relevant here, a franchisor vio lates the PMPA only when it “fail[s] to renew” a franchise relationship for a reason not provided for in the Act or after not providing the required notice. See 15 U.S. C. §2802. The Act defines the term “fail to renew,” in turn, as a “failure to reinstate, continue, or extend the franchise relationship.” §2801(14). Thus, the threshold require ment of any unlawful nonrenewal action—a requirement the franchisee bears the burden of establishing, see §2805(c)—is that the franchisor did not “reinstate, con tinue, or renew” the franchise relationship once a fran chise agreement expired. But if a franchisee signs a re newal agreement, the franchisor clearly has “reinstate[d], continue[d], or extend[ed]” the franchise relationship. True, the franchisee might find some of the terms in the new agreement objectionable. But the Act prohibits only unlawful “fail[ures] to renew” a franchise relationship, not renewals of a franchise relationship on terms that are less than favorable to the franchisee. A franchisee that signs a renewal agreement, in short, cannot carry the threshold burden of showing a “nonrenewal of the franchise rela tionship,” §2805(c), and thus necessarily cannot establish that the franchisor has violated the Act. The dealers point out that several of them signed their renewal agreements “under protest,” and they argue that they thereby explicitly preserved their ability to assert a claim for unlawful nonrenewal under the PMPA. That argument misunderstands the legal significance of signing a renewal agreement. Signing a renewal agreement does not constitute a waiver of a franchisee’s legal rights— something that signing “under protest” can sometimes help avoid. See, e.g., U. C. C. §1–207, 1 U. L. A. 318. Instead, signing a renewal agreement negates the very possibility of a violation of the PMPA. When a franchisee Cite as: 559 U. S. ____ (2010) 17 Opinion of the Court signs a renewal agreement—even “under protest”—there has been no “fail[ure] to renew,” and thus the franchisee has no cause of action under the Act. See 15 U.S. C. §2805(a). The Act’s structure and purpose confirm this interpreta tion. By requiring franchisors to renew only the “franchise relationship,” as opposed to the same franchise agreement, see §2802; see also §2801(2), the PMPA contemplates that franchisors can respond to market demands by proposing new and different terms at the expiration of a franchise agreement. To that end, the Act authorizes franchisors to decline to renew a franchise relationship if the franchisee refuses to accept changes or additions that are proposed “in good faith and in the normal course of business” and that are not designed to convert the service station to direct operation by the franchisor. §2802(b)(3)(A). Addi tionally, the Act creates a procedural mechanism for re solving disputes over the legality of proposed new terms. If the parties cannot agree, the franchisor has the option of either modifying the objectionable terms or pursuing nonrenewal, in which case it must provide the franchisee with written notice well in advance of the date when the nonrenewal takes effect. §2804(a)(2). Once the franchisee receives notice of nonrenewal, it can seek a preliminary injunction under the Act’s relaxed injunctive standard, maintaining the status quo while a court determines the lawfulness of the proposed changes. See §2805(b)(2); supra, at 13.12 —————— 12 The availability of preliminary injunctive relief under the Act also explains why the dealers are wrong to suggest that our holding will force franchisees “to choose between accepting an unlawful and coercive contract in order to stay in business [or] rejecting it and going out of business in order to preserve a cause of action.” Respondents’ Brief 51 (internal quotation marks omitted). A franchisee presented with “unlawful and coercive” terms can simply reject those terms and, if the franchisor pursues nonrenewal, seek a preliminary injunction under 18 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court Allowing franchisees to pursue nonrenewal claims even after they have signed renewal agreements would under mine this procedural mechanism and, in the process, would frustrate franchisors’ ability to propose new terms. Under the dealers’ theory, franchisees have no incentive to object to burdensome new terms and seek a preliminary injunction if a franchisor pursues nonrenewal. Instead, a franchisee could simply sign the new franchise agreement and decide later whether to sue under the PMPA. Fran chisees would then have the option of either continuing to operate under the new agreement or, if the terms of the agreement later proved unfavorable, bringing suit under the PMPA alleging that the newly imposed terms are unlawful. And because the PMPA has a 1-year statute of limitations, see §2805(a), franchisees would retain that option for the entire first year of a new franchise agree ment. Accepting the dealers’ argument, therefore, would cast a cloud of uncertainty over all renewal agreements and could chill franchisors from proposing new terms in response to changing market conditions and consumer needs. Finally, accepting the dealers’ argument would greatly expand the PMPA’s reach. Under the balance struck by the plain text of the statute, a franchisee faced with objec tionable new terms must decide whether challenging those terms is worth risking the nonrenewal of the franchise relationship; if the franchisee rejects the terms and the —————— the Act once the franchisee receives notice of nonrenewal. Indeed, the PMPA substantially relaxes the normal standard for obtaining prelimi nary-injunctive relief, §2805(b)(2)(A)(ii), thus allowing a franchisee with anything close to a meritorious claim to obtain relief. It is possible, of course, that a franchisor could fail to renew a fran chise relationship without providing the statutorily required notice. But in that circumstance, a franchisee would not only have a surefire claim for unlawful nonrenewal, see §2802(b)(1)(A), but also presumably could seek a preliminary injunction forcing the franchisor to resume providing the franchise elements for the duration of the litigation. Cite as: 559 U. S. ____ (2010) 19 Opinion of the Court franchisor seeks nonrenewal, the franchisee runs the risk that a court will ultimately determine that the proposed terms were lawful under the PMPA. See §2802(b)(3)(A). That risk acts as a restraint, limiting the scope of franchi sor liability under the Act to that with which Congress was most concerned: the imposition of arbitrary and un reasonable new terms on a franchisee that are designed to force an end to the petroleum franchise relationship. See, e.g., ibid.; Comment, 32 Emory L. J., at 277–283. Allow ing franchisees both to sign a franchise agreement and to pursue a claim under the PMPA would eliminate that restraint and thus permit franchisees to challenge a much broader range of franchisor conduct—conduct to which the dealer might object but not consider so serious as to risk the nonrenewal of the franchise by mounting a legal chal lenge. As explained, the PMPA was enacted to address the narrow areas of franchise terminations and nonre newals, not to govern every aspect of the petroleum fran chise relationship. See supra, at 10; Dersch Energies, 314 F.3d, at 861. We thus decline to adopt an interpretation that would expand the Act in such a fashion.13 * * * We hold that a franchisee who is offered and signs a renewed franchise agreement cannot maintain a claim for unlawful nonrenewal under the PMPA. We therefore affirm the judgment of the Court of Appeals with respect —————— 13 It also is worth noting that, although the concept of “constructive nonrenewal” does not arise frequently in other areas of the law, the little authority on this concept supports our conclusion that a plaintiff who signs a new agreement cannot maintain a claim for constructive nonrenewal. See American Cas. Co. of Reading, Pa. v. Baker, 22 F.3d 880, 892–894 (CA9 1994) (insured who accepts a successor insurance policy cannot maintain a claim for constructive nonrenewal of the previous policy); American Cas. Co. of Reading, Pa. v. Continisio, 17 F.3d 62, 65–66 (CA3 1994) (same); Adams v. Greenwood, 10 F.3d 568, 572 (CA8 1993) (same). 20 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court to the dealers’ nonrenewal claims. IV The judgment of the Court of Appeals is reversed in part and affirmed in part. The cases are remanded for further proceedings consistent with this opinion. It is so ordered

The Petroleum Marketing Practice Act (PMPA or Act), 15 U.S. C. et eq., limit the circum tance in which petroleum franchior may “terminate” a franchie or “fail to renew” a franchie relationhip. In thee conolidated cae, ervice-tation fran chiee brought uit under the Act, alleging that a fran chior had contructively “terminate[d]” their franchie and had contructively “fail[ed] to renew” their franchie relationhip. They aerted thee claim even though the conduct of which they complained had not compelled any of them to abandon their franchie and even though they had been offered and had accepted renewal agreement. We hold that a franchiee cannot recover for contructive termination under the PMPA if the franchior’ allegedly 2 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court wrongful conduct did not compel the franchiee to aban don it franchie. Additionally, we conclude that a fran chiee who ign and operate under a renewal agreement with a franchior may not maintain a claim for contruc tive nonrenewal. We therefore revere in part and affirm in part. I A Petroleum refiner and ditributor upply motor fuel to the public through ervice tation that often are operated by independent franchiee. In the typical franchie arrangement, the franchior leae the ervice-tation premie to the franchiee, grant the franchiee the right to ue the franchior’ trademark, and agree to ell motor fuel to the franchiee for reale. Franchie agreement remain in effect for a tated term, after which the partie can opt to renew the franchie relationhip by executing a new agreement. Enacted in 1978, the PMPA wa a repone to wide pread concern over increaing number of allegedly un fair franchie termination and nonrenewal in the petro leum indutry. See, Comment, 1980 Duke L. J. 522, 52–531. The Act etablihe minimum federal tandard governing the termination and nonrenewal of petroleum franchie. Under the Act’ operative proviion, a fran chior may “terminate” a “franchie” during the term tated in the franchie agreement and may “fail to renew” a “franchie relationhip” at the concluion of that term only if the franchior provide written notice and take the action in quetion for a reaon pecifically recognized in the tatute. 15 U.S. C. 280. Conitent with the typical franchie arrangement, a “franchie” i defined a “any contract” that authorize a franchiee to ue the franchior’ trademark, a well a any aociated agree ment providing for the upply of motor fuel or authorizing Cite a: 559 U. S. (2010) 3 Opinion of the Court the franchiee to occupy a ervice tation owned by the franchior.1 (1). The Act define a “franchie rela tionhip” in more general term: the partie’ “repective motor fuel marketing or ditribution obligation and re ponibilitie” that reult from the franchie arrangement. (2). To enforce thee proviion, a franchiee may bring uit in federal court againt any franchior that fail to comply with the Act’ retriction on termination and nonrenew al. See Succeful franchiee can benefit from a wide range of remedie, including compenatory and punitive damage, reaonable attorney’ fee and expert cot, and equitable relief. See (d). The Act alo require ditrict court to grant preliminary injunctive relief to aggrieved franchiee, if there are “ufficiently eriou quetion going to the merit” that preent “a fair ground for litigation” and the balance of hardhip favor uch relief. B Thi litigation involve a dipute between Shell Oil Company (Shell), a petroleum franchior, and everal Shell franchiee in Maachuett.2 Puruant to their franchie agreement with Shell, each franchiee wa required to pay Shell monthly rent for ue of the ervice tation premie. For many year, Shell offered the fran chiee a rent ubidy that reduced the monthly rent by a et amount for every gallon of motor fuel a franchiee old above a pecified threhold. Shell renewed the ubidy annually through notice that “explicitly provided for —————— 1 Court ometime decribe thee three type of agreement a the “tatutory element” of a petroleum franchie. See, Marcoux v. Shell Oil Prod. Co., 2 Shell Oil Product Company LLC, another party in thi litigation, i a wholly owned ubidiary of Shell Oil Company. See Brief for Peti tioner in No. 08–372, p. iii. MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court cancellation [of the rent ubidy] with thirty day’ notice.” Nonethele, Shell repreentative made variou oral repreentation to the franchiee “that the []ubidy or omething like it would alway exit.” In Shell joined with two other oil companie to create Motiva Enterprie LLC (Motiva), a joint venture that combined the companie’ petroleum-marketing opera tion in the eatern United State. Shell a igned to Motiva it right and obligation under the relevant franchie agreement. Motiva, in turn, took two action that led to thi lawuit. Firt, effective January 1, 2000, Motiva ended the volume-baed rent ubidy, thu increaing the franchiee’ rent. at Second, a each franchie agreement expired, Motiva offered the franchiee new agreement that contained a different formula for calculating rent. For ome (but not all) of the franchiee, annual rent wa greater under the new formula. C In July 2001, 63 Shell franchiee (hereinafter dealer) filed uit againt Shell and Motiva in Federal Ditrict Court. Their complaint alleged that Motiva’ dicontinua tion of the rent ubidy contituted a breach of contract under tate law. Additionally, the dealer aerted two claim under the PMPA. Firt, they maintained that Shell and Motiva, by eliminating the rent ubidy, had “con tructively terminated” their franchie in violation of the Act. Second, they claimed that Motiva’ offer of new fran chie agreement that calculated rent uing a different formula amounted to a “contructive nonrenewal” of their franchie relationhip.3 —————— 3 The dealer alo claimed that Shell and Motiva had violated the Uniform Commercial Code, a adopted in Maachuett, by etting unreaonable price under the open-price term of their fuel-upply Cite a: 559 U. S. (2010) 5 Opinion of the Court After a 2-week trial involving eight of the dealer, the jury found againt Shell and Motiva on all claim. Both before and after the jury’ verdict, Shell and Motiva moved for judgment a a matter of law on the dealer’ two PMPA claim. They argued that they could not be found liable for contructive termination under the Act becaue none of the dealer had abandoned their franchie in repone to Motiva’ elimination of the rent ubidy––omething Shell and Motiva aid wa a neceary element of any contruc tive termination claim. Similarly, they argued that the dealer’ contructive nonrenewal claim necearily failed becaue even of the eight dealer had igned and oper ated under renewal agreement with Motiva, and the eighth had old hi franchie prior to the expiration of hi franchie agreement. The Ditrict Court denied thee motion, and Shell and Motiva appealed. The Firt Circuit affirmed in part and revered in part. In affirming the judgment on the dealer’ contructive termination claim, the Court of Appeal held that a fran chiee i not required to abandon it franchie to recover for contructive termination under the PMPA. See 52 F.3d, at 5–7. Intead, the court ruled, a imple breach of contract by an aignee of a franchie agreement can amount to contructive termination under the Act, o long a the breach reulted in “uch a material change that it effectively ended the leae, even though the [franchiee] continued to operate [it franchie].” (internal quotation mark omitted). Turning to the dealer’ con tructive nonrenewal claim, the Firt Circuit agreed with Shell and Motiva that a franchiee cannot maintain a claim for unlawful nonrenewal under the PMPA “where the franchiee ha igned and operate under the renewal —————— agreement with the dealer. The jury found in favor of the dealer on thi claim, and the Court of Appeal affirmed. That iue i not before u. 6 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court agreement complained of.” The court thu revered the judgment on thoe claim. We granted certiorari. See 557 U. S. (2009). II The firt quetion we are aked to decide i whether a ervice-tation franchiee may recover for contructive termination under the PMPA when the franchior’ alleg edly wrongful conduct did not force the franchiee to abandon it franchie. For the reaon that follow, we conclude that a neceary element of any contructive termination claim under the Act i that the franchior’ conduct forced an end to the franchiee’ ue of the fran chior’ trademark, purchae of the franchior’ fuel, or occupation of the franchior’ ervice tation. A When given it ordinary meaning, the text of the PMPA prohibit only that franchior conduct that ha the effect of ending a franchie. A relevant here, the Act provide that “no franchior may terminate any franchie,” except for an enumerated reaon and after providing written notice. 15 U.S. C. The Act pecifie that “[t]he term ‘termination’ include cancellation,” (17), but it doe not further define the term “termi nate” or the incorporated term “cancel.” We therefore give —————— Becauereolving thi quetion i ufficient to decide thee cae, we need not addre Shell and Motiva’ alternative argument that the PMPA doe not embrace claim for contructive termination at all. Several Court of Appeal have held that the Act doe create a caue of action for contructive termination. See, –5 (cae below); 137 F.3d 6, ; Shukla v. BP Exploration & Oil, Inc., Other have reerved judgment on the iue. See, Abram Shell v. Shell Oil Co., ; Portland 76 Auto/Truck Plaza, 153 F.3d 9, We leave the quetion for another day. Cite a: 559 U. S. (2010) 7 Opinion of the Court thoe term their ordinary meaning. See Agrow Seed The word “terminate” ordinarily mean “put an end to.” Webter’ New International Dictionary 2605 (2d ed. 1957); ee alo The Random Houe Dictionary of the Eng lih Language 165 (1967). The term “cancel” carrie a imilar meaning: to “annul or detroy.” Webter’, at 9; ee alo Random Houe, (“to make void; revoke; annul”). The object of the verb “terminate” i the noun “franchie,” a term the Act define a “any con tract” for the proviion of one (or more) of the three ele ment of a typical petroleum franchie. (1). Thu, when given it ordinary meaning, the Act i violated only if an agreement for the ue of a trademark, purchae of motor fuel, or leae of a premie i “put [to] an end” or “annul[ed] or detroy[ed].” Conduct that doe not force an end to the franchie, in contrat, i not prohibited by the Act’ plain term. The ame concluion follow even if Congre wa uing the word “terminate” and “cancel” in their technical, rather than ordinary, ene. When Congre enacted the PMPA, thoe term had etablihed meaning under the Uniform Commercial Code.5 Under both definition, —————— 5 The difference between a “termination” and a “cancellation” under the Uniform Commercial Code relate to how the contracting party jutifie it ending of the contractual relationhip. A “termination” occur when “either party puruant to a power created by agreement or law put an end to the contract otherwie than for it breach.” U. C. C. (1972 ed.). By contrat, a “cancellation” occur when “either party put an end to the contract for breach by the other.” That difference might well explain why Congre felt compelled to pecify that “cancellation[],” no le than “termination[],” are covered by the Act. Prior to the PMPA, franchior often leveraged their greater bargaining power to end franchie agreement for minor or technical breache by the franchiee. See, Chetnut Hill Gulf, Inc. v. Cumberland Farm, Inc., By pecifying that the Act cover “cancellation[]” a well a “termina 8 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court however, a “termination” or “cancellation” occur only when a contracting party “put an end to the contract.” U. C. C. –() (1972 ed.); ee alo U. C. C. 106(3)–(), 1 U. L. A. 695, 695–696 (200). Thu, a fran chiee who continue operating a franchie—occupying the ame premie, receiving the ame fuel, and uing the ame trademark—ha not had the franchie “termi nate[d]” in either the ordinary or technical ene of the word. Requiring franchiee to abandon their franchie before claiming contructive termination i alo conitent with the general undertanding of the doctrine of contructive termination. A applied in analogou legal context—both now and at the time Congre enacted the PMPA—a plaintiff mut actually ever a particular legal relationhip in order to maintain a claim for contructive termination. For example, court have long recognized a theory of contructive dicharge in the field of employment law. See Pennylvania State Police v. Suder, 11– 13 (200) (tracing the doctrine to the 1930’). To recover for contructive dicharge, however, an employee gener ally i required to quit hi or her job. See 1 B. Lindemann & P. Groman, Employment Dicrimination Law 9 (th ed. 2007); 3 L. Laron, Labor and Employment Law (2009); 2 EEOC Compliance Manual ; cf. Suder, at 11–13, 18; Young v. South wetern Saving & Loan An., (CA5 1975); Muller v. United State Steel Corp., 929 (CA10 1975). Similarly, landlord-tenant law ha long recognized the concept of contructive eviction. See Ra pacz, Origin and Evolution of Contructive Eviction in the United State, The general —————— tion[],” Congre forecloed any argument that a termination for breach i not covered by the Act becaue it i technically a “cancella tion” rather than a “termination.” Cite a: 559 U. S. (2010) 9 Opinion of the Court rule under that doctrine i that a tenant mut actually move out in order to claim contructive eviction. See at 75; Glendon, The Tranformation of American Land lord-Tenant Law, 23 Boton College L. Rev. 503, 513–51 (1982); 1 H. Tiffany, Real Property 13 (3d ed. 1939).6 A generally undertood in thee and other context, a termination i deemed “contructive” becaue it i the plaintiff, rather than the defendant, who formally put an end to the particular legal relationhip—not becaue there i no end to the relationhip at all. There i no reaon why a different undertanding hould apply to contructive termination claim under the PMPA. At the time when it enacted the tatute, Congre preumably wa aware of how court applied the doctrine of contructive termina tion in thee analogou legal context. See Fitzgerald v. Barntable School Comm., 555 U. S. (2009) (lip op, at 11–12). And in the abence of any contrary evi dence, we think it reaonable to interpret the Act in a way that i conitent with thi well-etablihed body of law. The Court of Appeal wa of the view that analogizing to doctrine of contructive termination in other context wa inappropriate becaue “unk cot, optimim, and the —————— 6 Before Congre enacted the PMPA, at leat one court, it i true, had held that a tenant aerting contructive eviction could obtain declaratory relief without abandoning the premie—although the court oberved that the tenant till would have to abandon the premie in order to obtain reciion. See Charle E. Burt, 30 Ma. 12, But a even the dealer concede, ee Tr. of Oral Arg. 37–, the clear majority of authority required a tenant to leave the premie before claiming contructive eviction. For imilar reaon, the Second Retatement of Property i of no help to the dealer. Although it would allow a tenant to bring a contructive eviction claim without moving out, it noted that thi propoition wa “contrary to the preent weight of judicial authority.” 1 Retatement (Second) of Property Reporter’ Note 1, p. 230 (1976). 10 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court habit of year might lead franchiee to try to make the new arrangement work, even when the term have changed o materially a to make ucce impoible.” 52 F.3d, But urely thee ame factor compel em ployee and tenant—no le than ervice-tation franchi ee—to try to make their changed arrangement work. Nonethele, court have long required plaintiff aerting uch claim to how an actual everance of the relevant legal relationhip. We ee no reaon for a different rule here. Additionally, allowing franchiee to obtain PMPA relief for conduct that doe not force an end to a franchie would extend the reach of the Act much further than it text and tructure ugget. Prior to 1978, the regulation of petro leum franchie agreement wa largely a matter of tate law. See Derch Energie, Inc. v. Shell Oil Co., 31 F.3d 86, 861 ; Comment, 32 Emory L. J. 273, 277– 283 (1983). In enacting the PMPA, Congre did not regulate every apect of the petroleum franchie relation hip but intead federalized only the two part of that relationhip with which it wa mot concerned: the cir cumtance in which franchior may terminate a fran chie or decline to renew a franchie relationhip. See 15 U.S. C. Derch Energie, at 861–862. Con gre left unditurbed tate-law regulation of other type of dipute between petroleum franchior and franchi ee. See (pre-empting only thoe tate law governing franchie termination or nonrenewal). The dealer would have u interpret the PMPA in a manner that ignore the Act’ limited cope. On their view, and in the view of the Court of Appeal, the PMPA prohibit, not jut unlawful termination and nonrenew al, but alo certain eriou breache of contract that do not caue an end to the franchie. See Brief for Repon dent in No. 08–372, pp. 28–35 (hereinafter Repondent’ Brief); –7. Reading the Act to prohibit Cite a: 559 U. S. (2010) 11 Opinion of the Court imple breache of contract, however, would be inconi tent with the Act’ limited purpoe and would further expand federal law into a domain traditionally reerved for the State. Without a clearer indication that Congre intended to federalize uch a broad wath of the law gov erning petroleum franchie agreement, we decline to adopt an interpretation of the Act that would have uch weeping conequence. See, United State v. Ba,7 Finally, important practical conideration inform our deciion. Adopting the dealer’ reading of the PMPA would require u to articulate a tandard for identifying thoe breache of contract that hould be treated a effec tively ending a franchie, even though the franchiee in fact continue to ue the franchior’ trademark, purchae the franchior’ fuel, and occupy the ervice-tation prem ie.8 We think any uch tandard would be indetermi nate and unworkable. How i a court to determine —————— 7 Adopting uch a broad reading of the PMPA alo would have eriou implication for run-of-the-mill franchie dipute. The Act require court to award attorney’ fee and expert-witne fee in any cae in which a plaintiff recover more than nominal damage. See 15 U.S. C. The Act alo permit punitive damage, a remedy ordinarily not available in breach-of-contract action, ee Barne v. Gorman, –188 Accepting the dealer’ reading of the tatute, therefore, would turn everyday contract dipute into high-take affair. 8 The Firt Circuit, for example, approved of a tet that ak whether the breach reulted in “uch a material change that it effectively ended the leae, even though the plaintiff continued to operate [their fran chie].” 52 F.3d, (internal quotation mark omitted). That tandard, it eem to u, doe little more than retate the relevant quetion. While we do not decide whether the PMPA contemplate claim for contructive termination, we oberve that the Court of Appeal’ unwillingne or inability to etablih a more concrete tan dard undercore the difficultie and inherent contradiction involved in crafting a tandard for finding a “termination” when no termination ha in fact occurred. 12 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court whether a breach i eriou enough effectively to end a franchie when the franchiee i till willing and able to continue it operation? And how i a franchior to know in advance which breache a court will later determine to have been o eriou? The dealer have not provided anwer to thee quetion. Nor could they. Any tandard for identifying when a imple breach of contract amount to a PMPA termination, when all three tatutory element remain operational, imply evade coherent formulation. B The dealer ugget that thi interpretation of the PMPA fail to provide franchiee with much-needed protection from unfair and coercive franchior conduct that doe not force an end to the franchie. That argu ment, however, ignore the fact that franchiee till have tate-law remedie available to them. The pre-emptive cope of the PMPA i limited: The Act pre-empt only thoe tate or local law that govern the termination of petroleum franchie or the nonrenewal of petroleum franchie relationhip. See 15 U.S. C. Outide of thoe area, therefore, franchiee can till rely on tate-law remedie to addre wrongful franchior conduct that doe not have the effect of ending the franchie. Indeed, that happened in thi very lawuit. The dealer argued in the Ditrict Court that Motiva’ elimination of the rent ubidy not only contructively terminated their franchie in violation of the PMPA but alo amounted to a breach of contract under tate law. The jury found in their favor on their tate-law claim and awarded them almot $1.3 million in damage. See App. 376–379. Thu, the dealer’ own experience demontrate that franchiee do not need a PMPA remedy to have meaningful protec tion from abuive franchior conduct. The dealer alo charge that thi interpretation of the PMPA cannot be correct becaue it render other provi Cite a: 559 U. S. (2010) 13 Opinion of the Court ion of the Act meaningle. Repondent’ Brief 21–22, 2–25. While we agree that we normally hould contrue tatute “in a manner that give effect to all of their provi ion,” we believe our interpretation i faithful to thi “well-etablihed principl[e] of tatutory interpretation.” United State ex rel. Eientein v. City of New York, 556 U. S. (2009) (lip op., at 5) To begin, the dealer init that our reading of the term “terminate” will require franchiee to go out of buine before they can obtain preliminary relief and thu will render uele the Act’ preliminary injunction mecha nim. We diagree. To obtain a preliminary injunction, it i true, a franchiee mut how, among other thing, that “the franchie of which he i a party ha been terminated.” 15 U.S. C. (emphai added). But that doe not necearily mean that a franchiee mut go out of buine before obtaining an injunction. For example, in cae of actual termination, the Act require franchior to provide franchiee with written notice of termination well in advance of the date on which the termination “take effect.” A franchiee that receive notice of termination “ha been terminated” within the meaning of even though the termination “take effect” on a later date, jut a an employee who receive notice of dicharge can be accurately decribed a having been dicharged, even though the employee’ lat day at work may perhap be week later. Thu, franchiee that receive notice of impending termination can invoke the protection of the Act’ preliminary injunction mechanim well before having to go out of buine.9 Contrary to the —————— 9 The Government read the Act to permit a dealer to eek prelimi nary injunctive relief if a franchior announce it “intent to engage in conduct that would leave the franchiee no reaonable alternative but to abandon” one (or more) of the franchie element. Brief for United State a Amicu Curiae 21. Becaue we do not decide whether the PMPA permit contructive termination claim at all, ee n. 1 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court dealer’ aertion, therefore, our interpretation of the Act give meaningful effect to the PMPA’ preliminary injunc tion proviion. Our interpretation alo give effect to the Act’ alterna tive tatute-of-limitation accrual date. The 1-year limi tation period governing PMPA claim run from the later of either (1) “the date of termination of the franchie” or (2) “the date the franchior fail to comply with the re quirement of” the Act. Some violation of the PMPA, however, cannot occur until after a franchie ha been terminated. See, (franchior mut hare with a franchiee certain part of a condemnation award when the termination wa the reult of a condem nation or taking); (franchior mut grant a franchiee a right of firt refual if the franchie wa terminated due to the detruction of the ervice tation and the tation ubequently i rebuilt). The econd ac crual date lited in therefore, how only that the limitation period run from the date of thee type of pot-termination violation. It doe not ugget that Congre intended franchiee to maintain claim under the PMPA to redre franchior conduct that doe not force an end to the franchie. * * * We therefore hold that a neceary element of any con tructive termination claim under the PMPA i that the complained-of conduct forced an end to the franchiee’ ue of the franchior’ trademark, purchae of the franchi or’ fuel, or occupation of the franchior’ ervice tation. Becaue none of the dealer in thi litigation abandoned any element of their franchie operation in repone to Motiva’ elimination of the rent ubidy,10 they cannot —————— we need not addre thi argument. 10 After Motiva withdrew the rent ubidy, even of the dealer con tinued operating their franchie for the full term of their franchie Cite a: 559 U. S. (2010) 15 Opinion of the Court maintain a contructive termination claim on the bai of that conduct. III The econd quetion we are aked to decide i whether a franchiee who i offered and ign a renewal agreement can nonethele maintain a claim for “contructive nonre newal” under the PMPA. For reaon imilar to thoe given above, we agree with the Court of Appeal that a franchiee that chooe to accept a renewal agreement cannot thereafter aert a claim for unlawful nonrenewal under the Act.11 The plain text of the tatute leave no room for a fran chiee to claim that a franchior ha unlawfully declined —————— agreement and then igned new agreement that did not include the ubidy. See App. 161, 16, 316–321 (Mac’ Shell Service, Inc.); at 1–139, 31–315 (Cynthia Karol); at 15–155, 310–311 (Akmal, Inc.); at 185–186, 268–269 (Sid Prahad); 312–313 (J & M Avramidi, Inc.); at 179–182, 322–323 (RAM Corp., Inc.); at 18–153, 32–325 (John A. Sullivan). Thee dealer necearily cannot etablih that the elimination of the ubidy “terminate[d]” their franchie “prior to the concluion of the term” tated in their franchie agreement. 15 U.S. C. Whether they ceaed operation after their franchie agreement expired, moreover, i irrelevant. Indeed, in the Court of Appeal, the dealer abandoned any claim for contructive termination baed on the ubequent franchie agree ment. See Appellee’ Brief in No. 05–2770 etc. (CA1), p. 0, n. 29. One dealer did leave hi franchie before hi franchie agreement expired. App. 20, 330–331 (Stephen Piarczyk). But that dealer not only continued to operate for even month after the ubidy ended, at 20, but alo during that period entered into an agreement with Motiva to extend the term of hi franchie agreement, at 330–331. Moreover, that dealer had been planning to leave the ervice-tation buine before Motiva eliminated the ubidy, and he never claimed that hi deciion to leave had anything to do with Motiva’ rent policie. See at 202–207. 11 A i true with repect to the dealer’ contructive termination claim, it i not neceary for u to decide in thee cae whether the Act at all recognize claim for “contructive nonrenewal.” We there fore do not expre a view on that quetion. 16 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court to renew a franchie relationhip—contructively or oth erwie—when the franchiee ha in fact accepted a new franchie agreement. A relevant here, a franchior vio late the PMPA only when it “fail[] to renew” a franchie relationhip for a reaon not provided for in the Act or after not providing the required notice. See 15 U.S. C. The Act define the term “fail to renew,” in turn, a a “failure to reintate, continue, or extend the franchie relationhip.” (1). Thu, the threhold require ment of any unlawful nonrenewal action—a requirement the franchiee bear the burden of etablihing, ee §2805(c)—i that the franchior did not “reintate, con tinue, or renew” the franchie relationhip once a fran chie agreement expired. But if a franchiee ign a re newal agreement, the franchior clearly ha “reintate[d], continue[d], or extend[ed]” the franchie relationhip. True, the franchiee might find ome of the term in the new agreement objectionable. But the Act prohibit only unlawful “fail[ure] to renew” a franchie relationhip, not renewal of a franchie relationhip on term that are le than favorable to the franchiee. A franchiee that ign a renewal agreement, in hort, cannot carry the threhold burden of howing a “nonrenewal of the franchie rela tionhip,” and thu necearily cannot etablih that the franchior ha violated the Act. The dealer point out that everal of them igned their renewal agreement “under protet,” and they argue that they thereby explicitly preerved their ability to aert a claim for unlawful nonrenewal under the PMPA. That argument miundertand the legal ignificance of igning a renewal agreement. Signing a renewal agreement doe not contitute a waiver of a franchiee’ legal right— omething that igning “under protet” can ometime help avoid. See, U. C. C. 1 U. L. A. 318. Intead, igning a renewal agreement negate the very poibility of a violation of the PMPA. When a franchiee Cite a: 559 U. S. (2010) 17 Opinion of the Court ign a renewal agreement—even “under protet”—there ha been no “fail[ure] to renew,” and thu the franchiee ha no caue of action under the Act. See 15 U.S. C. The Act’ tructure and purpoe confirm thi interpreta tion. By requiring franchior to renew only the “franchie relationhip,” a oppoed to the ame franchie agreement, ee ee alo (2), the PMPA contemplate that franchior can repond to market demand by propoing new and different term at the expiration of a franchie agreement. To that end, the Act authorize franchior to decline to renew a franchie relationhip if the franchiee refue to accept change or addition that are propoed “in good faith and in the normal coure of buine” and that are not deigned to convert the ervice tation to direct operation by the franchior. Addi tionally, the Act create a procedural mechanim for re olving dipute over the legality of propoed new term. If the partie cannot agree, the franchior ha the option of either modifying the objectionable term or puruing nonrenewal, in which cae it mut provide the franchiee with written notice well in advance of the date when the nonrenewal take effect. §280(a)(2). Once the franchiee receive notice of nonrenewal, it can eek a preliminary injunction under the Act’ relaxed injunctive tandard, maintaining the tatu quo while a court determine the lawfulne of the propoed change. See12 —————— 12 The availability of preliminary injunctive relief under the Act alo explain why the dealer are wrong to ugget that our holding will force franchiee “to chooe between accepting an unlawful and coercive contract in order to tay in buine [or] rejecting it and going out of buine in order to preerve a caue of action.” Repondent’ Brief 51 (internal quotation mark omitted). A franchiee preented with “unlawful and coercive” term can imply reject thoe term and, if the franchior purue nonrenewal, eek a preliminary injunction under 18 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court Allowing franchiee to purue nonrenewal claim even after they have igned renewal agreement would under mine thi procedural mechanim and, in the proce, would frutrate franchior’ ability to propoe new term. Under the dealer’ theory, franchiee have no incentive to object to burdenome new term and eek a preliminary injunction if a franchior purue nonrenewal. Intead, a franchiee could imply ign the new franchie agreement and decide later whether to ue under the PMPA. Fran chiee would then have the option of either continuing to operate under the new agreement or, if the term of the agreement later proved unfavorable, bringing uit under the PMPA alleging that the newly impoed term are unlawful. And becaue the PMPA ha a 1-year tatute of limitation, ee franchiee would retain that option for the entire firt year of a new franchie agree ment. Accepting the dealer’ argument, therefore, would cat a cloud of uncertainty over all renewal agreement and could chill franchior from propoing new term in repone to changing market condition and conumer need. Finally, accepting the dealer’ argument would greatly expand the PMPA’ reach. Under the balance truck by the plain text of the tatute, a franchiee faced with objec tionable new term mut decide whether challenging thoe term i worth riking the nonrenewal of the franchie relationhip; if the franchiee reject the term and the —————— the Act once the franchiee receive notice of nonrenewal. Indeed, the PMPA ubtantially relaxe the normal tandard for obtaining prelimi nary-injunctive relief, thu allowing a franchiee with anything cloe to a meritoriou claim to obtain relief. It i poible, of coure, that a franchior could fail to renew a fran chie relationhip without providing the tatutorily required notice. But in that circumtance, a franchiee would not only have a urefire claim for unlawful nonrenewal, ee but alo preumably could eek a preliminary injunction forcing the franchior to reume providing the franchie element for the duration of the litigation. Cite a: 559 U. S. (2010) 19 Opinion of the Court franchior eek nonrenewal, the franchiee run the rik that a court will ultimately determine that the propoed term were lawful under the PMPA. See That rik act a a retraint, limiting the cope of franchi or liability under the Act to that with which Congre wa mot concerned: the impoition of arbitrary and un reaonable new term on a franchiee that are deigned to force an end to the petroleum franchie relationhip. See, ibid.; Comment, 32 Emory L. J., at 277–283. Allow ing franchiee both to ign a franchie agreement and to purue a claim under the PMPA would eliminate that retraint and thu permit franchiee to challenge a much broader range of franchior conduct—conduct to which the dealer might object but not conider o eriou a to rik the nonrenewal of the franchie by mounting a legal chal lenge. A explained, the PMPA wa enacted to addre the narrow area of franchie termination and nonre newal, not to govern every apect of the petroleum fran chie relationhip. See ; Derch Energie, 31 F.3d, at 861. We thu decline to adopt an interpretation that would expand the Act in uch a fahion.13 * * * We hold that a franchiee who i offered and ign a renewed franchie agreement cannot maintain a claim for unlawful nonrenewal under the PMPA. We therefore affirm the judgment of the Court of Appeal with repect —————— 13 It alo i worth noting that, although the concept of “contructive nonrenewal” doe not arie frequently in other area of the law, the little authority on thi concept upport our concluion that a plaintiff who ign a new agreement cannot maintain a claim for contructive nonrenewal. See American Ca. Co. of Reading, Pa. v. Baker, 22 F.3d 880, 892–89 (CA9 199) (inured who accept a ucceor inurance policy cannot maintain a claim for contructive nonrenewal of the previou policy); American Ca. Co. of Reading, Pa. v. Continiio, 17 F.3d 62, 65–66 (CA3 199) (ame); Adam v. Greenwood, 572 (CA8 1993) (ame). 20 MAC’S SHELL SERVICE, INC. v. SHELL OIL PRODUCTS CO. Opinion of the Court to the dealer’ nonrenewal claim. IV The judgment of the Court of Appeal i revered in part and affirmed in part. The cae are remanded for further proceeding conitent with thi opinion. It i o ordered

Justice Alito

majority

Travelers Cas. & Sur. Co. v. PACIFIC GAS

2007-03-20

https://www.courtlistener.com/opinion/145752/travelers-cas-sur-co-v-pacific-gas/

https://www.courtlistener.com/api/rest/v3/clusters/145752/

2006-023

We are asked to consider whether federal bankruptcy law precludes an unsecured creditor from recovering attorney's fees authorized by a prepetition contract and incurred in postpetition litigation. The Court of Appeals for the Ninth Circuit held, based on a rule previously adopted by that court, that such fees are categorically prohibited—even where the contractual allocation of attorney's fees would be enforceable under applicable nonbankruptcy law—to the extent the litigation involves issues of federal bankruptcy law. Because that rule finds no support in the Bankruptcy Code, we vacate and remand. I Respondent Pacific Gas and Electric Company (PG & E) filed a voluntary Chapter 11 bankruptcy petition in April 2001, 11 U.S.C. § 1101 et seq., and continued thereafter to operate its business as a "debtor in possession." §§ 1107(a), 1108. The bankruptcy filing caught the attention of petitioner Travelers Casualty & Surety Company (Travelers), which had previously issued a $100 million surety bond on PG & E's behalf to the California Department of Industrial Relations, guaranteeing PG & E's payment of state workers' compensation benefits to injured employees.[1] In connection with the bond, PG & E executed a series of indemnity agreements in favor of Travelers. The indemnity agreements provide that PG & E will be responsible for any loss Travelers might incur in connection with the bonds, including any attorney's fees incurred in pursuing, protecting, or litigating Travelers' rights in connection with those bonds. Although no default occurred, Travelers asserted a claim in the bankruptcy action to protect itself in case PG & E defaulted on its workers' compensation benefits at some point in the future, requiring Travelers to make payments under its bond. In response to Travelers' claim, and with the knowledge and approval of the Bankruptcy Court, PG & E agreed to insert language into its reorganization plan and disclosure statement to protect Travelers' right to indemnity and subrogation in the event of a default by PG & E. Travelers claims, however, that PG & E then unilaterally altered the negotiated language in a way that substantially diminished the protection it had been seeking. According to Travelers, that development resulted in additional litigation, but Travelers and PG & E ultimately resolved the dispute by entering into a stipulation that was later approved by the Bankruptcy Court. In addition to accommodating Travelers' substantive concerns, the stipulation stated that Travelers "may assert its *1203 claim for attorneys' fees under the [i]ndemnity [a]greements" (subject to PG & E's right to object) as a general unsecured claim against PG & E. Brief for Petitioner 17. Travelers subsequently filed an amended proof of claim seeking to recover the attorney's fees it incurred in connection with PG & E's bankruptcy proceedings. PG & E objected, arguing that Travelers could not recover attorney's fees incurred while litigating issues of bankruptcy law. The Bankruptcy Court agreed and rejected Travelers' claim on that basis. App. to Pet. for Cert. 23a-25a. Travelers appealed that ruling to the District Court. The District Court affirmed, relying on In re Fobian, 951 F.2d 1149 (C.A.9 1991), which held that "where the litigated issues involve not basic contract enforcement questions, but issues peculiar to federal bankruptcy law, attorney's fees will not be awarded absent bad faith or harassment by the losing party," id., at 1153. See App. to Pet. for Cert. 10a, 17a. Travelers appealed again, and the United States Court of Appeals for the Ninth Circuit affirmed. 167 Fed.Appx. 593 (2006). The panel acknowledged that, in at least some circumstances, a "`prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law....'" Id., at 594 (quoting In re Baroff, 105 F.3d 439, 441 (C.A.9 1997)). The panel nevertheless rejected Travelers' claim based on the Fobian rule, which it cited for the proposition that "attorney fees are not recoverable in bankruptcy for litigating issues `peculiar to federal bankruptcy law.'" 167 Fed.Appx., at 594 (quoting Fobian, supra, at 1153). The panel explained that, because the fees claimed by Travelers were incurred litigating issues that were "governed entirely by federal bankruptcy law," Travelers' claim necessarily failed.[2] 167 Fed.Appx., at 594. Travelers sought review in this Court, noting a conflict among the Courts of Appeals regarding the validity of the Fobian rule. Compare Fobian, supra, at 1153, with In re Shangra-La, Inc., 167 F.3d 843, 848-849 (C.A.4 1999). We granted certiorari to resolve that conflict, 549 U.S. ___, 127 S. Ct. 377, 166 L. Ed. 2d 265 (2006). II Under the American Rule, "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); see Hauenstein v. Lynham, 100 U.S. 483, 490-491, 25 L. Ed. 628 (1880); Arcambel v. Wiseman, 3 Dall. 306, 1 L. Ed. 613 (1796). This default rule can, of course, be overcome by statute. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967). It can also be overcome by an "enforceable contract" allocating attorney's fees. Ibid. In a case governed by the Bankruptcy Act of 1898, we observed that "[t]he character of [a contractual] obligation to pay attorney's fees presents no obstacle to enforcing it in bankruptcy, either as a provable claim or by way of a lien upon specific property." Security Mortgage Co. v. Powers, 278 U.S. 149, 154, 49 S. Ct. 84, 73 L. Ed. 236 (1928). Similarly, under the terms of the current Bankruptcy Code, it *1204 remains true that an otherwise enforceable contract allocating attorney's fees (i.e., one that is enforceable under substantive, nonbankruptcy law) is allowable in bankruptcy except where the Bankruptcy Code provides otherwise. See 4 Collier on Bankruptcy ¶ 506.04[3][a], p. 506-118 (rev. 15th ed.2006) (hereinafter Collier). This case requires us to consider whether the Bankruptcy Code disallows contract-based claims for attorney's fees based solely on the fact that the fees at issue were incurred litigating issues of bankruptcy law. We conclude that it does not. A When a debtor declares bankruptcy, each of its creditors is entitled to file a proof of claim—i.e., a document providing proof of a "right to payment," 11 U.S.C. § 101(5)(A)—against the debtor's estate. Once a proof of claim has been filed, the court must determine whether the claim is "allowed" under § 502(a) of the Bankruptcy Code: "A claim or interest, proof of which is filed under section 501 ... is deemed allowed, unless a party in interest... objects." But even where a party in interest objects, the court "shall allow" the claim "except to the extent that" the claim implicates any of the nine exceptions enumerated in § 502(b). Ibid. Those exceptions apply where the claim at issue is "unenforceable against the debtor ... under any agreement or applicable law," § 502(b)(1); "is for unmatured interest," § 502(b)(2); "is for [PRoperty tax that] exceeds the value of the [estate's] interest" in the property, § 502(b)(3); "is for services of an insider or attorney of the debtor" and "exceeds the reasonable value of such services," § 502(b)(4); is for unmatured debt on certain alimony and child support obligations, § 502(b)(5); is for certain "damages resulting from the termination" of a lease or employment contract, §§ 502(b)(6) and (7); "results from a reduction, due to late payment, in the amount of ... credit available to the debtor in connection with an employment tax on wages, salaries, or commissions earned from the debtor," § 502(b)(8); or was brought to the court's attention through an untimely proof of claim, § 502(b)(9). Travelers' claim for attorney's fees has nothing to do with property tax, child support or alimony, services provided by an attorney of the debtor, damages resulting from the termination of a lease or employment contract, or the late payment of any employment tax. See §§ 502(b)(2)-(8). Nor does it appear that the proof of claim was untimely. See § 502(b)(9). Thus, Travelers' claim must be allowed under § 502(b) unless it is unenforceable within the meaning of § 502(b)(1). B Section 502(b)(1) disallows any claim that is "unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured." This provision is most naturally understood to provide that, with limited exceptions, any defense to a claim that is available outside of the bankruptcy context is also available in bankruptcy. See 4 Collier ¶ 502.03[2][b], at 502-22 (explaining that § 502(b)(1) is generally understood to "make available to the trustee any defense" available to the debtor "under applicable nonbankruptcy law"—i.e., any defense that the debtor "could have interposed, absent bankruptcy, in a suit on the [same substantive] claim by the creditor"). This reading of § 502(b)(1) is consistent not only with the plain statutory text, but also with the settled principle that "[c]reditors' *1205 entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor's obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code." Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 20, 120 S. Ct. 1951, 147 L. Ed. 2d 13 (2000). That principle requires bankruptcy courts to consult state law in determining the validity of most claims. See ibid. Indeed, we have long recognized that the "`basic federal rule' in bankruptcy is that state law governs the substance of claims, Congress having `generally left the determination of property rights in the assets of a bankrupt's estate to state law.'" Ibid. (quoting Butner v. United States, 440 U.S. 48, 57, 54, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979); citation omitted). Accordingly, when the Bankruptcy Code uses the word "claim"—which the Code itself defines as a "right to payment," 11 U.S.C. § 101(5)(A)—it is usually referring to a right to payment recognized under state law. As we stated in Butner, "[p]roperty interests are created and defined by state law," and "[u]nless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding." 440 U.S., at 55, 99 S. Ct. 914; accord, Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161, 67 S. Ct. 237, 91 L. Ed. 162 (1946) ("What claims of creditors are valid and subsisting obligations against the bankrupt at the time a petition in bankruptcy is filed is a question which, in the absence of overruling federal law, is to be determined by reference to state law"). C In rejecting Travelers' claim for contractual attorney's fees, the Court of Appeals did not conclude that the claim was "unenforceable" under § 502(b)(1) as a matter of applicable nonbankruptcy law. Nor did it conclude that Travelers' claim was rendered unenforceable by any provision of the Bankruptcy Code. To the contrary, the court acknowledged that, in at least some circumstances, a "`prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law....'" 167 Fed.Appx., at 594 (quoting Baroff, 105 F.3d, at 441). The court nevertheless rejected Travelers' claim based solely on a rule of that court's own creation—the so-called Fobian rule—which dictates that "attorney fees are not recoverable in bankruptcy for litigating issues `peculiar to federal bankruptcy law.'" 167 Fed.Appx., at 594 (quoting Fobian, 951 F.2d, at 1153). The court explained that, because the fees claimed by Travelers were incurred litigating issues that were "governed entirely by federal bankruptcy law," 167 Fed.Appx., at 594, Travelers' claim necessarily failed. The Fobian rule finds no support in the Bankruptcy Code, either in § 502 or elsewhere. In Fobian, the court did not identify any provision of the Bankruptcy Code as providing support for the new rule. See 951 F.2d, at 1153. Instead, the court cited three of its own prior decisions, In re Johnson, 756 F.2d 738 (1985); In re Coast Trading Co., 744 F.2d 686 (1984); and In re Fulwiler, 624 F.2d 908 (C.A.1980) (per curiam). Significantly, in none of those cases did the court identify any basis for disallowing a contractual claim for attorney's fees incurred litigating issues of federal bankruptcy law. Nor did the court have occasion to do so; in each of those cases, the claim for attorney's fees failed as a matter of state law. See Johnson, supra, at 741-742; Coast Trading, supra, at 693; Fulwiler, supra, at 910.[3] *1206 The absence of textual support is fatal for the Fobian rule. Consistent with our prior statements regarding creditors' entitlements in bankruptcy, see, e.g., Raleigh, 530 U.S., at 20, 120 S. Ct. 1951, we generally presume that claims enforceable under applicable state law will be allowed in bankruptcy unless they are expressly disallowed. See 11 U.S.C. § 502(b). Neither the court below nor PG & E has offered any reason why the fact that the attorney's fees in this case were incurred litigating issues of federal bankruptcy law overcomes that presumption. Section 502(b)(4) is instructive on this point. That provision expressly disallows claims for a particular category of attorney's fees—those "for services of an ... attorney of the debtor," to the extent the claimed fees "excee[d] the reasonable value of such services." The existence of that provision suggests that, in its absence, a claim for such fees would be allowed in bankruptcy to the extent enforceable under state law. The absence of an analogous provision excluding the category of fees covered by the Fobian rule likewise suggests that the Code does not categorically disallow them. See 4 Collier ¶ 506.04[3][a], at 506-118 (concluding that Fobian "inverts the proper analysis" by allowing attorney's fees only where they are expressly authorized by the Bankruptcy Code, and explaining that "a claim for attorney's fees arising in the context of litigating bankruptcy issues must be allowed if valid under applicable state law"). Congress, of course, has the power to amend the Bankruptcy Code by adding a provision expressly disallowing claims for attorney's fees incurred by creditors in the litigation of bankruptcy issues. But because no such provision exists, the Bankruptcy Code provides no basis for disallowing Travelers' claim on the grounds stated by the Ninth Circuit. As we explained in FCC v. NextWave Personal Communications Inc., 537 U.S. 293, 123 S. Ct. 832, 154 L. Ed. 2d 863 (2003), "where Congress has intended to provide... exceptions to provisions of the Bankruptcy Code, it has done so clearly and expressly." Id., at 302, 123 S. Ct. 832. Here, the Bankruptcy Code does not "clearly and expressly" compel courts to follow the Fobian rule; on the contrary, the Code says nothing about unsecured claims for contractual attorney's fees incurred while litigating issues of bankruptcy law. In light of the broad, permissive scope of § 502(b)(1), and our prior recognition that "the character of [a contractual] obligation to pay attorney's fees presents no obstacle to enforcing it in bankruptcy," it necessarily follows that the Fobian rule cannot stand. Security Mortgage, 278 U.S., at 154, 49 S. Ct. 84; see Cohen v. de la Cruz, 523 U.S. 213, 221, 118 S. Ct. 1212, 140 L. Ed. 2d 341 (1998) ("We ... `will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure'" *1207 (quoting Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 563, 110 S. Ct. 2126, 109 L. Ed. 2d 588 (1990))). III PG & E makes no effort to defend the Fobian rule. See Tr. of Oral Arg. 28 (conceding that PG & E does not defend the Fobian rule, and acknowledging that "[t]he Fobian rule is wrong ... as to the distinction that it draws between State law and Federal litigation"). Instead, PG & E argues that § 506(b) categorically disallows unsecured claims for contractual attorney's fees and—noting that Travelers' claim is unsecured—asks us to affirm on that basis. Section 506(b) provides as follows: "To the extent that an allowed secured claim is secured by property the value of which ... is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose." 11 U.S.C.A. § 506(b) (Supp.2006). According to PG & E, this provision authorizes claims for contractual attorney's fees to the extent the creditor is oversecured, but disallows such claims to the extent the creditor is either not oversecured or (like Travelers) completely unsecured. This reading of the Code, PG & E argues, "is not a matter of negative implication, but of explicit negation." Brief for Respondent 18. PG & E also argues that the structure and purpose of the Bankruptcy Code, examined against the backdrop of pre-Code bankruptcy law, confirm that Congress did not intend to allow unsecured creditors to recover attorney's fees. See id., at 25-38. PG & E did not raise these arguments below. Consequently, none of the lower courts had occasion to address them. Nor were these arguments presented in PG & E's brief in opposition to certiorari. PG & E nevertheless insists that we should address these arguments as though they were "fairly included" within the question presented in Travelers' petition for certiorari. See id., at 41. That contention appears to be premised on the theory that "the Fobian rule reaches the correct conclusion in this case," but "doesn't go far enough in ... preventing creditors from requiring other creditors to pay for their attorneys' fees." Tr. of Oral Arg. 25. We are not persuaded. We granted certiorari to resolve a conflict among the lower courts regarding the Fobian rule, which is analytically distinct from, and fundamentally at odds with, PG & E's reading of § 506(b).[4] In any event, we ordinarily do not consider claims that were neither raised nor addressed below, Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 168-169, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004), and PG & E has failed to identify any circumstances that would warrant an exception to that rule in this case. We therefore will not consider these arguments.[5] Accordingly, we express no opinion with regard to whether, following the demise of *1208 the Fobian rule, other principles of bankruptcy law might provide an independent basis for disallowing Travelers' claim for attorney's fees. We conclude only that the Court of Appeals erred in disallowing that claim based on the fact that the fees at issue were incurred litigating issues of bankruptcy law. * * * The judgment of the United States Court of Appeals for the Ninth Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

We are asked to consider whether federal bankruptcy law precludes an unsecured creditor from recovering attorney's fees authorized by a prepetition contract and incurred in postpetition litigation. The Court of Appeals for the Ninth Circuit held, based on a rule previously adopted by that court, that such fees are categorically prohibited—even where the contractual allocation of attorney's fees would be enforceable under applicable nonbankruptcy law—to the extent the litigation involves issues of federal bankruptcy law. Because that rule finds no support in the Bankruptcy Code, we vacate and remand. I Respondent Pacific Gas and Electric Company (PG & E) filed a voluntary Chapter 11 bankruptcy petition in April 01, et seq., and continued thereafter to operate its business as a "debtor in possession." 1107(a), 1108. The bankruptcy filing caught the attention of petitioner Travelers Casualty & Surety Company (Travelers), which had previously issued a $100 million surety bond on PG & E's behalf to the California Department of Industrial Relations, guaranteeing PG & E's payment of state workers' compensation benefits to injured employees.[1] In connection with the bond, PG & E executed a series of indemnity agreements in favor of Travelers. The indemnity agreements provide that PG & E will be responsible for any loss Travelers might incur in connection with the bonds, including any attorney's fees incurred in pursuing, protecting, or litigating Travelers' rights in connection with those bonds. Although no default occurred, Travelers asserted a claim in the bankruptcy action to protect itself in case PG & E defaulted on its workers' compensation benefits at some point in the future, requiring Travelers to make payments under its bond. In response to Travelers' claim, and with the knowledge and approval of the Bankruptcy Court, PG & E agreed to insert language into its reorganization plan and disclosure statement to protect Travelers' right to indemnity and subrogation in the event of a default by PG & E. Travelers claims, however, that PG & E then unilaterally altered the negotiated language in a way that substantially diminished the protection it had been seeking. According to Travelers, that development resulted in additional litigation, but Travelers and PG & E ultimately resolved the dispute by entering into a stipulation that was later approved by the Bankruptcy Court. In addition to accommodating Travelers' substantive concerns, the stipulation stated that Travelers "may assert its *13 claim for attorneys' fees under the [i]ndemnity [a]greements" (subject to PG & E's right to object) as a general unsecured claim against PG & E. Brief for Petitioner 17. Travelers subsequently filed an amended proof of claim seeking to recover the attorney's fees it incurred in connection with PG & E's bankruptcy proceedings. PG & E objected, arguing that Travelers could not recover attorney's fees incurred while litigating issues of bankruptcy law. The Bankruptcy Court agreed and rejected Travelers' claim on that basis. App. to Pet. for Cert. 23a-25a. Travelers appealed that ruling to the District Court. The District Court affirmed, relying on In re which held that "where the litigated issues involve not basic contract enforcement questions, but issues peculiar to federal bankruptcy law, attorney's fees will not be awarded absent bad faith or harassment by the losing party," See App. to Pet. for Cert. 10a, 17a. Travelers appealed again, and the United States Court of Appeals for the Ninth Circuit affirmed. The panel acknowledged that, in at least some circumstances, a "`prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law.'" ). The panel nevertheless rejected Travelers' claim based on the rule, which it cited for the proposition that "attorney fees are not recoverable in bankruptcy for litigating issues `peculiar to federal bankruptcy law.'" 167 Fed.Appx., (quoting ). The panel explained that, because the fees claimed by Travelers were incurred litigating issues that were "governed entirely by federal bankruptcy law," Travelers' claim necessarily failed.[2] 167 Fed.Appx., Travelers sought review in this Court, noting a conflict among the Courts of Appeals regarding the validity of the rule. Compare with In re Shangra-La, Inc., We granted certiorari to resolve that conflict, 549 U.S. II Under the American Rule, "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Service ; see ; This default rule can, of course, be overcome by statute. Fleischmann Distilling It can also be overcome by an "enforceable contract" allocating attorney's fees. In a case governed by the Bankruptcy Act of 1898, we observed that "[t]he character of [a contractual] obligation to pay attorney's fees presents no obstacle to enforcing it in bankruptcy, either as a provable claim or by way of a lien upon specific property." Security Similarly, under the terms of the current Bankruptcy Code, it *14 remains true that an otherwise enforceable contract allocating attorney's fees (i.e., one that is enforceable under substantive, nonbankruptcy law) is allowable in bankruptcy except where the Bankruptcy Code provides otherwise. See 4 Collier on Bankruptcy ¶ 506.04[3][a], p. 506-118 (hereinafter Collier). This case requires us to consider whether the Bankruptcy Code disallows contract-based claims for attorney's fees based solely on the fact that the fees at issue were incurred litigating issues of bankruptcy law. We conclude that it does not. A When a debtor declares bankruptcy, each of its creditors is entitled to file a proof of claim—i.e., a document providing proof of a "right to payment," (5)(A)—against the debtor's estate. Once a proof of claim has been filed, the court must determine whether the claim is "allowed" under 502(a) of the Bankruptcy Code: "A claim or interest, proof of which is filed under section 501 is deemed allowed, unless a party in interest. objects." But even where a party in interest objects, the court "shall allow" the claim "except to the extent that" the claim implicates any of the nine exceptions enumerated in 502(b). Those exceptions apply where the claim at issue is "unenforceable against the debtor under any agreement or applicable law," 502(b)(1); "is for unmatured interest," 502(b)(2); "is for [PRoperty tax that] exceeds the value of the [estate's] interest" in the property, 502(b)(3); "is for services of an insider or attorney of the debtor" and "exceeds the reasonable value of such services," 502(b)(4); is for unmatured debt on certain alimony and child support obligations, 502(b)(5); is for certain "damages resulting from the termination" of a lease or employment contract, 502(b)(6) and (7); "results from a reduction, due to late payment, in the amount of credit available to the debtor in connection with an employment tax on wages, salaries, or commissions earned from the debtor," 502(b)(8); or was brought to the court's attention through an untimely proof of claim, 502(b)(9). Travelers' claim for attorney's fees has nothing to do with property tax, child support or alimony, services provided by an attorney of the debtor, damages resulting from the termination of a lease or employment contract, or the late payment of any employment tax. See 502(b)(2)-(8). Nor does it appear that the proof of claim was untimely. See 502(b)(9). Thus, Travelers' claim must be allowed under 502(b) unless it is unenforceable within the meaning of 502(b)(1). B Section 502(b)(1) disallows any claim that is "unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured." This provision is most naturally understood to provide that, with limited exceptions, any defense to a claim that is available outside of the bankruptcy context is also available in bankruptcy. See 4 Collier ¶ 502.03[2][b], at 502-22 (explaining that 502(b)(1) is generally understood to "make available to the trustee any defense" available to the debtor "under applicable nonbankruptcy law"—i.e., any defense that the debtor "could have interposed, absent bankruptcy, in a suit on the [same substantive] claim by the creditor"). This reading of 502(b)(1) is consistent not only with the plain statutory text, but also with the settled principle that "[c]reditors' *15 entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor's obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code." 1 S. Ct. 1951, That principle requires bankruptcy courts to consult state law in determining the validity of most claims. See Indeed, we have long recognized that the "`basic federal rule' in bankruptcy is that state law governs the substance of claims, Congress having `generally left the determination of property rights in the assets of a bankrupt's estate to state law.'" ; citation omitted). Accordingly, when the Bankruptcy Code uses the word "claim"—which the Code itself defines as a "right to payment," (5)(A)—it is usually referring to a right to payment recognized under state law. As we stated in Butner, "[p]roperty interests are created and defined by state law," and "[u]nless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding." C In rejecting Travelers' claim for contractual attorney's fees, the Court of Appeals did not conclude that the claim was "unenforceable" under 502(b)(1) as a matter of applicable nonbankruptcy law. Nor did it conclude that Travelers' claim was rendered unenforceable by any provision of the Bankruptcy Code. To the contrary, the court acknowledged that, in at least some circumstances, a "`prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law.'" 167 Fed.Appx., (quoting 105 F.3d, at ). The court nevertheless rejected Travelers' claim based solely on a rule of that court's own creation—the so-called rule—which dictates that "attorney fees are not recoverable in bankruptcy for litigating issues `peculiar to federal bankruptcy law.'" 167 Fed.Appx., (quoting 951 F.2d, ). The court explained that, because the fees claimed by Travelers were incurred litigating issues that were "governed entirely by federal bankruptcy law," 167 Fed.Appx., Travelers' claim necessarily failed. The rule finds no support in the Bankruptcy Code, either in 502 or elsewhere. In the court did not identify any provision of the Bankruptcy Code as providing support for the new rule. See 951 F.2d, Instead, the court cited three of its own prior decisions, In re ; In re Coast Co., ; and In re (C.A.1980) (per curiam). Significantly, in none of those cases did the court identify any basis for disallowing a contractual claim for attorney's fees incurred litigating issues of federal bankruptcy law. Nor did the court have occasion to do so; in each of those cases, the claim for attorney's fees failed as a matter of state law. See ; Coast ;[3] *16 The absence of textual support is fatal for the rule. Consistent with our prior statements regarding creditors' entitlements in bankruptcy, see, e.g., 530 U.S., at 1 S. Ct. 1951, we generally presume that claims enforceable under applicable state law will be allowed in bankruptcy unless they are expressly disallowed. See 11 U.S.C. 502(b). Neither the court below nor PG & E has offered any reason why the fact that the attorney's fees in this case were incurred litigating issues of federal bankruptcy law overcomes that presumption. Section 502(b)(4) is instructive on this point. That provision expressly disallows claims for a particular category of attorney's fees—those "for services of an attorney of the debtor," to the extent the claimed fees "excee[d] the reasonable value of such services." The existence of that provision suggests that, in its absence, a claim for such fees would be allowed in bankruptcy to the extent enforceable under state law. The absence of an analogous provision excluding the category of fees covered by the rule likewise suggests that the Code does not categorically disallow them. See 4 Collier ¶ 506.04[3][a], at 506-118 (concluding that "inverts the proper analysis" by allowing attorney's fees only where they are expressly authorized by the Bankruptcy Code, and explaining that "a claim for attorney's fees arising in the context of litigating bankruptcy issues must be allowed if valid under applicable state law"). Congress, of course, has the power to amend the Bankruptcy Code by adding a provision expressly disallowing claims for attorney's fees incurred by creditors in the litigation of bankruptcy issues. But because no such provision exists, the Bankruptcy Code provides no basis for disallowing Travelers' claim on the grounds stated by the Ninth Circuit. As we explained in L. Ed. 2d 863 (03), "where Congress has intended to provide. exceptions to provisions of the Bankruptcy Code, it has done so clearly and expressly." Here, the Bankruptcy Code does not "clearly and expressly" compel courts to follow the rule; on the contrary, the Code says nothing about unsecured claims for contractual attorney's fees incurred while litigating issues of bankruptcy law. In light of the broad, permissive scope of 502(b)(1), and our prior recognition that "the character of [a contractual] obligation to pay attorney's fees presents no obstacle to enforcing it in bankruptcy," it necessarily follows that the rule cannot stand. Security 278 U.S., at )). III PG & E makes no effort to defend the rule. See Tr. of Oral Arg. 28 (conceding that PG & E does not defend the rule, and acknowledging that "[t]he rule is wrong as to the distinction that it draws between State law and Federal litigation"). Instead, PG & E argues that 506(b) categorically disallows unsecured claims for contractual attorney's fees and—noting that Travelers' claim is unsecured—asks us to affirm on that basis. Section 506(b) provides as follows: "To the extent that an allowed secured claim is secured by property the value of which is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose." 11 U.S.C.A. 506(b) According to PG & E, this provision authorizes claims for contractual attorney's fees to the extent the creditor is oversecured, but disallows such claims to the extent the creditor is either not oversecured or (like Travelers) completely unsecured. This reading of the Code, PG & E argues, "is not a matter of negative implication, but of explicit negation." Brief for Respondent 18. PG & E also argues that the structure and purpose of the Bankruptcy Code, examined against the backdrop of pre-Code bankruptcy law, confirm that Congress did not intend to allow unsecured creditors to recover attorney's fees. See PG & E did not raise these arguments below. Consequently, none of the lower courts had occasion to address them. Nor were these arguments presented in PG & E's brief in opposition to certiorari. PG & E nevertheless insists that we should address these arguments as though they were "fairly included" within the question presented in Travelers' petition for certiorari. See That contention appears to be premised on the theory that "the rule reaches the correct conclusion in this case," but "doesn't go far enough in preventing creditors from requiring other creditors to pay for their attorneys' fees." Tr. of Oral Arg. 25. We are not persuaded. We granted certiorari to resolve a conflict among the lower courts regarding the rule, which is analytically distinct from, and fundamentally at odds with, PG & E's reading of 506(b).[4] In any event, we ordinarily do not consider claims that were neither raised nor addressed below, Cooper Industries, (04), and PG & E has failed to identify any circumstances that would warrant an exception to that rule in this case. We therefore will not consider these arguments.[5] Accordingly, we express no opinion with regard to whether, following the demise of *18 the rule, other principles of bankruptcy law might provide an independent basis for disallowing Travelers' claim for attorney's fees. We conclude only that the Court of Appeals erred in disallowing that claim based on the fact that the fees at issue were incurred litigating issues of bankruptcy law. * * * The judgment of the United States Court of Appeals for the Ninth Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Rehnquist

majority

Connecticut Dept. of Public Safety v. Doe

2003-03-05

https://www.courtlistener.com/opinion/127894/connecticut-dept-of-public-safety-v-doe/

https://www.courtlistener.com/api/rest/v3/clusters/127894/

2002-027

We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined *4 the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Doe v. Department of Public Safety ex rel. Lee, 271 F.3d 38, 44, 46 (2001) (internal quotation marks omitted). Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme. "Sex offenders are a serious threat in this Nation." McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion). "[T]he victims of sex assault are most often juveniles," and "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." Id., at 32-33. Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the Connecticut Department of Public Safety (DPS) upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted *5 of sexually violent offenses must register for life. Conn. Gen. Stat. §§ 54-251, 54-252, 54-254 (2001). The statute requires DPS to compile the information gathered from registrants and publicize it. In particular, the law requires DPS to post a sex offender registry on an Internet Website and to make the registry available to the public in certain state offices. §§ 54-257, 54-258. Whether made available in an office or via the Internet, the registry must be accompanied by the following warning: "`Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.'" § 54-258a. Before the District Court enjoined its operation, the State's Website enabled citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of the Website: "`The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.'" 271 F.3d, at 44. Petitioners include the state agencies and officials charged with compiling the sex offender registry and posting it on the Internet. Respondent Doe (hereinafter respondent) is a convicted sex offender who is subject to Connecticut's Megan's *6 Law. He filed this action pursuant to Rev. Stat. § 1979, 42 U.S. C. § 1983, on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Due Process Clause of the Fourteenth Amendment. Specifically, respondent alleged that he is not a "`dangerous sexual offender,'" and that the Connecticut law "deprives him of a liberty interest — his reputation combined with the alteration of his status under state law — without notice or a meaningful opportunity to be heard." 271 F.3d, at 45-46. The District Court granted summary judgment for respondent on his due process claim. 132 F. Supp. 2d 57 (Conn. 2001). The court then certified a class of individuals subject to the Connecticut law, and permanently enjoined the law's public disclosure provisions. The Court of Appeals affirmed, 271 F.3d 38 (CA2 2001), holding that the Due Process Clause entitles class members to a hearing "to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." Id., at 62. Because Connecticut had not provided such a hearing, the Court of Appeals enjoined petitioners from "`disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning [class members]'" and from "`identifying [them] as being included in the Registry.'" Ibid. The Court of Appeals reasoned that the Connecticut law implicated a "liberty interest" because of: (1) the law's stigmatization of respondent by "implying" that he is "currently dangerous," and (2) its imposition of "extensive and onerous" registration obligations on respondent. Id., at 57. From this liberty interest arose an obligation, in the Court of Appeals' view, to give respondent an opportunity to demonstrate that he was not "likely to be currently dangerous." Id., at 62. We granted certiorari, 535 U.S. 1077 (2002). In Paul v. Davis, 424 U.S. 693 (1976), we held that mere injury to reputation, even if defamatory, does not constitute *7 the deprivation of a liberty interest. Petitioners urge us to reverse the Court of Appeals on the ground that, under Paul v. Davis, respondent has failed to establish that petitioners have deprived him of a liberty interest. We find it unnecessary to reach this question, however, because even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute. In cases such as Wisconsin v. Constantineau, 400 U.S. 433 (1971), and Goss v. Lopez, 419 U.S. 565 (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut's Megan's Law. As the DPS Website explains, the law's requirements turn on an offender's conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. 271 F.3d, at 44 ("`Individuals included within the registry are included solely by virtue of their conviction record and state law'" (emphasis added)). No other fact is relevant to the disclosure of registrants' information. Conn. Gen. Stat. §§ 54-257, 54-258 (2001). Indeed, the disclaimer on the Website explicitly states that respondent's alleged nondangerousness simply does not matter. 271 F.3d, at 44 ("`[DPS] has made no determination that any individual included in the registry is currently dangerous'"). In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currently dangerous or not — must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any *8 hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in `procedural due process' terms." Reno v. Flores, 507 U.S. 292, 308 (1993). Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, Brief for Respondents 44-45, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 (1989) (plurality opinion) (emphasis in original). See also id., at 132 (STEVENS, J., concurring in judgment). Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Id., at 121. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process. Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here. The judgment of the Court of Appeals is therefore Reversed.

We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined *4 the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme. "Sex offenders are a serious threat in this Nation." "[T]he victims of sex assault are most often juveniles," and "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." at -33. Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the Connecticut Department of Public Safety (DPS) upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted *5 of sexually violent offenses must register for life. 54-252, 54-254 The statute requires DPS to compile the information gathered from registrants and publicize it. In particular, the law requires DPS to post a sex offender registry on an Internet Website and to make the registry available to the public in certain state offices. 54-257, 54-258. Whether made available in an office or via the Internet, the registry must be accompanied by the following warning: "`Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.'" 54-258a. Before the District Court enjoined its operation, the State's Website enabled citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of the Website: "`The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.'" Petitioners include the state agencies and officials charged with compiling the sex offender registry and posting it on the Internet. Respondent Doe (hereinafter respondent) is a convicted sex offender who is subject to Connecticut's Megan's *6 Law. He filed this action pursuant to Rev. Stat. 1979, 42 U.S. C. 1983, on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Due Process Clause of the Fourteenth Amendment. Specifically, respondent alleged that he is not a "`dangerous sexual offender,'" and that the Connecticut law "deprives him of a liberty interest — his reputation combined with the alteration of his status under state law — without notice or a meaningful opportunity to be heard." -46. The District Court granted summary judgment for respondent on his due process claim. 1 F. Supp. 2d 57 The court then certified a class of individuals subject to the Connecticut law, and permanently enjoined the law's public disclosure provisions. The Court of Appeals affirmed, holding that the Due Process Clause entitles class members to a hearing "to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." Because Connecticut had not provided such a hearing, the Court of Appeals enjoined petitioners from "`disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning [class members]'" and from "`identifying [them] as being included in the Registry.'" The Court of Appeals reasoned that the Connecticut law implicated a "liberty interest" because of: (1) the law's stigmatization of respondent by "implying" that he is "currently dangerous," and (2) its imposition of "extensive and onerous" registration obligations on respondent. From this liberty interest arose an obligation, in the Court of Appeals' view, to give respondent an opportunity to demonstrate that he was not "likely to be currently dangerous." We granted certiorari, In we held that mere injury to reputation, even if defamatory, does not constitute *7 the deprivation of a liberty interest. Petitioners urge us to reverse the Court of Appeals on the ground that, under respondent has failed to establish that petitioners have deprived him of a liberty interest. We find it unnecessary to reach this question, however, because even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute. In cases such as and we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut's Megan's Law. As the DPS Website explains, the law's requirements turn on an offender's conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. No other fact is relevant to the disclosure of registrants' information. Conn. Gen. Stat. 54-257, 54-258 Indeed, the disclaimer on the Website explicitly states that respondent's alleged nondangerousness simply does not In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currently dangerous or not — must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any *8 hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in `procedural due process' terms." Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, Brief for Respondents 44-45, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael (emphasis in original). See also at 1 Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process. Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here. The judgment of the Court of Appeals is therefore Reversed.

Justice Scalia

concurring

Connecticut Dept. of Public Safety v. Doe

2003-03-05

https://www.courtlistener.com/opinion/127894/connecticut-dept-of-public-safety-v-doe/

https://www.courtlistener.com/api/rest/v3/clusters/127894/

2002-027

I join the Court's opinion, and add that even if the requirements of Connecticut's sex offender registration law implicate a liberty interest of respondents, the categorical abrogation of that liberty interest by a validly enacted statute suffices to provide all the process that is "due" — just as a state law providing that no one under the age of 16 may operate a motor vehicle suffices to abrogate that liberty interest. Absent a claim (which respondents have not made here) that the liberty interest in question is so fundamental as to implicate so-called "substantive" due process, a properly enacted law can eliminate it. That is ultimately why, *9 as the Court's opinion demonstrates, a convicted sex offender has no more right to additional "process" enabling him to establish that he is not dangerous than (in the analogous case just suggested) a 15-year-old has a right to "process" enabling him to establish that he is a safe driver.

I join the Court's opinion, and add that even if the requirements of Connecticut's sex offender registration law implicate a liberty interest of respondents, the categorical abrogation of that liberty interest by a validly enacted statute suffices to provide all the process that is "due" — just as a state law providing that no one under the age of 16 may operate a motor vehicle suffices to abrogate that liberty interest. Absent a claim (which respondents have not made here) that the liberty interest in question is so fundamental as to implicate so-called "substantive" due process, a properly enacted law can eliminate it. That is ultimately why, *9 as the Court's opinion demonstrates, a convicted sex offender has no more right to additional "process" enabling him to establish that he is not dangerous than (in the analogous case just suggested) a 15-year-old has a right to "process" enabling him to establish that he is a safe driver.

Justice Alito

majority

Rehberg v. Paulk

2012-04-02

https://www.courtlistener.com/opinion/626447/rehberg-v-paulk/

https://www.courtlistener.com/api/rest/v3/clusters/626447/

2011-045

This case requires us to decide whether a “complaining witness” in a grand jury proceeding is entitled to the same immunity in an action under 42 U.S. C. §1983 as a witness who testifies at trial. We see no sound reason to draw a distinction for this purpose between grand jury and trial witnesses. I Petitioner Charles Rehberg, a certified public account- ant, sent anonymous faxes to several recipients, including the management of a hospital in Albany, Georgia, criticiz- ing the hospital’s management and activities. In response, the local district attorney’s office, with the assistance of its chief investigator, respondent James Paulk, launched a criminal investigation of petitioner, allegedly as a favor to the hospital’s leadership. Respondent testified before a grand jury, and petitioner was then indicted for aggravated assault, burglary, and six counts of making harassing telephone calls. The in- dictment charged that petitioner had assaulted a hospital physician, Dr. James Hotz, after unlawfully entering the 2 REHBERG v. PAULK Opinion of the Court doctor’s home. Petitioner challenged the sufficiency of the indictment, and it was dismissed. A few months later, respondent returned to the grand jury, and petitioner was indicted again, this time for as- saulting Dr. Hotz on August 22, 2004, and for making harassing phone calls. On this occasion, both the doctor and respondent testified. Petitioner challenged the suf- ficiency of this second indictment, claiming that he was “nowhere near Dr. Hotz” on the date in question and that “[t]here was no evidence whatsoever that [he] committed an assault on anybody.” 611 F.3d 828, 836 (CA11 2010). Again, the indictment was dismissed. While the second indictment was still pending, respond- ent appeared before a grand jury for a third time, and yet another indictment was returned. Petitioner was charged with assault and making harassing phone calls. This final indictment was ultimately dismissed as well. Petitioner then brought this action against respondent under Rev. Stat. §1979, 42 U.S. C. §1983. Petitioner alleged that respondent conspired to present and did present false testimony to the grand jury. Respondent moved to dismiss, arguing, among other things, that he was entitled to absolute immunity for his grand jury testimony. The United States District Court for the Mid- dle District of Georgia denied respondent’s motion to dismiss, but the Court of Appeals reversed, holding, in accordance with Circuit precedent, that respondent was absolutely immune from a §1983 claim based on his grand jury testimony. The Court of Appeals noted petitioner’s allegation that respondent was the sole “complaining witness” before the grand jury, but the Court of Appeals declined to recognize a “complaining witness” exception to its precedent on grand jury witness immunity. See 611 F.3d, at 839–840. “[A]llowing civil suits for false grand jury testimony,” the court reasoned, “would . . . emasculate the confidential Cite as: 566 U. S. ____ (2012) 3 Opinion of the Court nature of grand jury testimony, and eviscerate the tradi- tional absolute immunity for witness testimony in judi- cial proceedings.” Id., at 840. The court went on to hold that respondent was entitled to absolute immunity, not only with respect to claims based directly on his grand jury testimony, but also with respect to the claim that he con- spired to present such testimony. Id., at 841. To allow liability to be predicated on the alleged conspiracy, the court concluded, “ ‘would be to permit through the back door what is prohibited through the front.’ ” Ibid. (quoting Jones v. Cannon, 174 F.3d 1271, 1289 (CA11 1999)). We granted certiorari to resolve a Circuit conflict re- garding the immunity of a “complaining witness” in a grand jury proceeding, 562 U. S. ___ (2011), and we now affirm. II Section 1983, which derives from §1 of the Civil Rights Act of 1871, 17 Stat. 13, creates a private right of action to vindicate violations of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Under the terms of the statute, “ ‘[e]very person’ who acts under color of state law to deprive another of a constitutional right [is] answerable to that person in a suit for damages.” Imbler v. Pachtman, 424 U.S. 409, 417 (1976) (citing 42 U.S. C. §1983). A Despite the broad terms of §1983, this Court has long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common- law immunities applicable in tort suits. See, e.g., Burns v. Reed, 500 U.S. 478, 484 (1991). More than 60 years ago, in Tenney v. Brandhove, 341 U.S. 367 (1951), the Court held that §1983 did not abrogate the long-established absolute immunity enjoyed by legislators for actions taken 4 REHBERG v. PAULK Opinion of the Court within the legitimate sphere of legislative authority. Immunities “well grounded in history and reason,” the Court wrote, were not somehow eliminated “by covert inclusion in the general language” of §1983. Id., at 376. This interpretation has been reaffirmed by the Court time and again and is now an entrenched feature of our §1983 jurisprudence. See, e.g., Pierson v. Ray, 386 U.S. 547, 554–555 (1967) (“The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held . . . that the immunity of legislators for acts within the legisla- tive role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine”); Imbler, supra, at 418 (statute must “be read in harmony with general principles of tort immunities and defenses rather than in derogation of them”); Procunier v. Navarette, 434 U.S. 555, 561 (1978) (“Although the Court has recognized that in enacting §1983 Congress must have intended to expose state officials to damages liability in some circum- stances, the section has been consistently construed as not intending wholesale revocation of the common-law im- munity afforded government officials”); Briscoe v. LaHue, 460 U.S. 325, 330 (1983) (“ ‘It is by now well settled that the tort liability created by §1983 cannot be understood in a historical vacuum. . . . One important assumption under- lying the Court’s decisions in this area is that members of the 42d Congress were familiar with common-law princi- ples, including defenses previously recognized in ordinary tort litigation, and that they likely intended these com- mon-law principles to obtain, absent specific provisions to the contrary’ ” (quoting Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981)); Pulliam v. Allen, 466 U.S. 522, 529 (1984) (“The starting point in our own analysis is the common law. Our cases have proceeded on the assump- Cite as: 566 U. S. ____ (2012) 5 Opinion of the Court tion that common-law principles of . . . immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so”). B Recognizing that “Congress intended [§1983] to be construed in the light of common-law principles,” the Court has looked to the common law for guidance in de- termining the scope of the immunities available in a §1983 action. Kalina v. Fletcher, 522 U.S. 118, 123 (1997). We do not simply make our own judgment about the need for immunity. We have made it clear that it is not our role “to make a freewheeling policy choice,” Malley v. Briggs, 475 U.S. 335, 342 (1986), and that we do not have a license to create immunities based solely on our view of sound pol- icy, see Tower v. Glover, 467 U.S. 914, 922–923 (1984). Instead, we conduct “a considered inquiry into the immun- ity historically accorded the relevant official at common law and the interests behind it.” Imbler, supra, at 421. We take what has been termed a “functional approach.” See Forrester v. White, 484 U.S. 219, 224 (1988); Burns, supra, at 486. We consult the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed “ ‘with independence and without fear of conse- quences.’ ” Pierson, supra, at 554 (quoting Bradley v. Fisher, 13 Wall. 335, 350, n. ‡ (1872)). Taking this ap- proach, we have identified the following functions that are absolutely immune from liability for damages under §1983: actions taken by legislators within the legitimate scope of legislative authority, see Tenney, supra; actions taken by judges within the legitimate scope of judicial authority, see Pierson, supra; actions taken by prosecutors in their role as advocates, see Imbler, 424 U.S., at 430– 6 REHBERG v. PAULK Opinion of the Court 431; and the giving of testimony by witnesses at trial, see Briscoe, supra. By contrast, the Court has found no abso- lute immunity for the acts of the chief executive officer of a State, the senior and subordinate officers of a State’s National Guard, the president of a state university, see Scheuer v. Rhodes, 416 U.S. 232, 247–248 (1974); school board members, see Wood v. Strickland, 420 U.S. 308, 318 (1975); the superintendent of a state hospital, see O’Connor v. Donaldson, 422 U.S. 563, 577 (1975); police officers, see Pierson, supra, at 555; prison officials and officers, Procunier, supra, at 561; and private co- conspirators of a judge, see Dennis v. Sparks, 449 U.S. 24, 27 (1980). C While the Court’s functional approach is tied to the common law’s identification of the functions that merit the protection of absolute immunity, the Court’s precedents have not mechanically duplicated the precise scope of the absolute immunity that the common law provided to pro- tect those functions. See, e.g., Burns, 500 U.S., at 493 (“ ‘[T]he precise contours of official immunity’ need not mirror the immunity at common law” (quoting Anderson v. Creighton, 483 U.S. 635, 645 (1987))). This approach is illustrated by the Court’s analysis of the absolute immunity enjoyed today by public prosecu- tors. When §1983’s predecessor was enacted in 1871, it was common for criminal cases to be prosecuted by private parties. See, e.g., Stewart v. Sonneborn, 98 U.S. 187, 198 (1879) (Bradley, J., dissenting) (“[E]very man in the com- munity, if he has probable cause for prosecuting another, has a perfect right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his suit”). And private prosecutors, like private plaintiffs in civil suits, did not enjoy absolute immunity from suit. See Malley, 475 Cite as: 566 U. S. ____ (2012) 7 Opinion of the Court U. S., at 340–341, and n. 3 (citing cases). Instead, “the generally accepted rule” was that a private complainant who procured an arrest or prosecution could be held liable in an action for malicious prosecution if the complainant acted with malice and without probable cause. See id., at 340–341; see also Briscoe, 460 U.S., at 351 (Marshall, J., dissenting) (“Both English and American courts routinely permitted plaintiffs to bring actions alleging that the de- fendant had made a false and malicious accusation of a felony to a magistrate or other judicial officer”); Wheeler v. Nesbitt, 24 How. 544, 550 (1861) (“Undoubtedly, every person who puts the criminal law in force maliciously, and without any reasonable or probable cause, commits a wrongful act; and if the accused is thereby prejudiced, either in his person or property, the injury and loss so sustained constitute the proper foundation of an action to recover compensation”); Dinsman v. Wilkes, 12 How. 390, 402 (1852) (no immunity “where a party had maliciously, and without probable cause, procured the plaintiff to be indicted or arrested for an offence of which he was not guilty”). In the decades after the adoption of the 1871 Civil Rights Act, however, the prosecutorial function was in- creasingly assumed by public officials, and common-law courts held that public prosecutors, unlike their private predecessors, were absolutely immune from the types of tort claims that an aggrieved or vengeful criminal defend- ant was most likely to assert, namely, claims for malicious prosecution or defamation. See Imbler, supra, at 441–442 (White, J., concurring in judgment); Kalina, supra, at 124, n. 11 (noting that cases “decided after 1871 . . . granted a broader immunity to public prosecutors than had been available in malicious prosecution actions against private persons who brought prosecutions at early common law”); see also Burns, supra, at 505 (SCALIA, J., concurring in judgment in part and dissenting in part) (noting that the 8 REHBERG v. PAULK Opinion of the Court “common-law tradition of prosecutorial immunity . . . developed much later than 1871”). This adaptation of prosecutorial immunity accommo- dated the special needs of public, as opposed to private, prosecutors. Because the daily function of a public prosecu- tor is to bring criminal charges, tort claims against public prosecutors “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.” Imbler, 424 U.S., at 425. Such “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties,” and would result in a severe interference with the administration of an important public office. Id., at 423. Constant vulnerability to vexatious litigation would give rise to the “possibility that [the prosecutor] would shade his decisions instead of exercising the independence of judgment required by his public trust.” Ibid. Thus, when the issue of prosecutorial immunity un- der §1983 reached this Court in Imbler, the Court did not simply apply the scope of immunity recognized by common-law courts as of 1871 but instead placed substan- tial reliance on post-1871 cases extending broad immunity to public prosecutors sued for common-law torts. While the Court has looked to the common law in de- termining the scope of the absolute immunity available under §1983, the Court has not suggested that §1983 is simply a federalized amalgamation of pre-existing common-law claims, an all-in-one federal claim encompass- ing the torts of assault, trespass, false arrest, defamation, malicious prosecution, and more. The new federal claim created by §1983 differs in important ways from those pre- existing torts. It is broader in that it reaches constitu- tional and statutory violations that do not correspond to any previously known tort. See Kalina, 522 U.S., at 123. But it is narrower in that it applies only to tortfeasors who Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court act under color of state law. See Briscoe, supra, at 329. Section 1983 “ha[s] no precise counterpart in state law. . . . [I]t is the purest coincidence when state statutes or the common law provide for equivalent remedies; any analo- gies to those causes of action are bound to be imperfect.” Wilson v. Garcia, 471 U.S. 261, 272 (1985) (internal quo- tation marks and citation omitted). Thus, both the scope of the new tort and the scope of the absolute immunity available in §1983 actions differ in some respects from the common law. III A At common law, trial witnesses enjoyed a limited form of absolute immunity for statements made in the course of a judicial proceeding: They had complete immunity against slander and libel claims, even if it was alleged that the statements in question were maliciously false. Kalina, supra, at 133 (SCALIA, J., concurring) (citing F. Hilliard, Law of Torts 319 (1866)); see Briscoe, supra, at 351 (Mar- shall, J., dissenting); Burns, 500 U.S., at 501 (opinion of SCALIA, J.). In Briscoe, however, this Court held that the immunity of a trial witness sued under §1983 is broader: In such a case, a trial witness has absolute immunity with respect to any claim based on the witness’ testimony. When a wit- ness is sued because of his testimony, the Court wrote, “ ‘the claims of the individual must yield to the dictates of public policy.’ ” 460 U.S., at 332–333 (quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)). Without absolute im- munity for witnesses, the Court concluded, the truth- seeking process at trial would be impaired. Witnesses “might be reluctant to come forward to testify,” and even if a witness took the stand, the witness “might be inclined to shade his testimony in favor of the potential plaintiff ” for “fear of subsequent liability.” 460 U.S., at 333. 10 REHBERG v. PAULK Opinion of the Court The factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses. In both contexts, a witness’ fear of retaliatory litigation may deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony. In Briscoe, the Court concluded that the possibility of civil liability was not needed to deter false testimony at trial because other sanctions—chiefly prosecution for perjury—provided a sufficient deterrent. Id., at 342. Since perjury before a grand jury, like perjury at trial, is a serious criminal offense, see, e.g., 18 U.S. C. §1623(a), there is no reason to think that this deterrent is any less effective in preventing false grand jury testimony. B Neither is there any reason to distinguish law enforce- ment witnesses from lay witnesses. In Briscoe, it was argued that absolute immunity was not needed for police- officer witnesses, but the Court refused to draw that dis- tinction. The Court wrote: “When a police officer appears as a witness, he may reasonably be viewed as acting like any other witness sworn to tell the truth—in which event he can make a strong claim to witness immunity; alternatively, he may be regarded as an official performing a critical role in the judicial process, in which event he may seek the benefit afforded to other governmental par- ticipants in the same proceeding. Nothing in the lan- guage of the statute suggests that such a witness be- longs in a narrow, special category lacking protection against damages suits.” 460 U.S., at 335–336 (foot- note omitted). See also id., at 342 (“A police officer on the witness stand performs the same functions as any other witness”). Cite as: 566 U. S. ____ (2012) 11 Opinion of the Court The Briscoe Court rebuffed two arguments for distin- guishing between law enforcement witnesses and lay witnesses for immunity purposes: first, that absolute im- munity is not needed for law enforcement witnesses be- cause they are less likely to be intimidated by the threat of suit and, second, that such witnesses should not be shielded by absolute immunity because false testimony by a police officer is likely to be more damaging than false testimony by a lay witness. See ibid. The Court observed that there are other factors not applicable to lay witnesses that weigh in favor of extending absolute immunity to police officer witnesses. First, police officers testify with some frequency. Id., at 343. “Police officers testify in scores of cases every year,” the Court noted, “and defendants often will transform resentment at being convicted into allegations of perjury by the State’s official witnesses.” Ibid. If police officer witnesses were routinely forced to defend against claims based on their testimony, their “ ‘energy and attention would be diverted from the pressing duty of enforcing the criminal law.’ ” Id., at 343–344 (quoting Imbler, 424 U.S., at 425). Second, a police officer witness’ potential liability, if conditioned on the exoneration of the accused, could influ- ence decisions on appeal and collateral relief. 460 U.S., at 344. Needless to say, such decisions should not be influ- enced by the likelihood of a subsequent civil rights action. But the possibility that a decision favorable to the accused might subject a police officer witness to liability would create the “ ‘risk of injecting extraneous concerns’ ” into appellate review and postconviction proceedings. Ibid. (quoting Imbler, supra, at 428, n. 27). In addition, law enforcement witnesses face the possibility of sanctions not applicable to lay witnesses, namely, loss of their jobs and other employment-related sanctions. For these reasons, we conclude that grand jury wit- 12 REHBERG v. PAULK Opinion of the Court nesses should enjoy the same immunity as witnesses at trial. This means that a grand jury witness has absolute immunity from any §1983 claim based on the witness’ testimony. In addition, as the Court of Appeals held, this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other §1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim to at- tack the preparation instead of the absolutely immune actions themselves.” Buckley v. Fitzsimmons, 509 U.S. 259, 283 (1993) (KENNEDY, J., concurring in part and dissenting in part); see also Dykes v. Hosemann, 776 F.2d 942, 946 (CA11 1985) (per curiam) (“[J]udges, on mere allegations of conspiracy or prior agreement, could be hauled into court and made to defend their judicial acts, the precise result judicial immunity was designed to avoid”). In the vast majority of cases involving a claim against a grand jury witness, the witness and the prose- cutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated.1 IV A Petitioner’s main argument is that our cases, chiefly —————— 1 Of course, we do not suggest that absolute immunity extends to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits, see Kalina v. Fletcher, 522 U.S. 118, 129–131 (1997); Malley v. Briggs, 475 U.S. 335, 340–345 (1986), and fabricate evidence concerning an unsolved crime, see Buckley, 509 U.S., at 272–276. Cite as: 566 U. S. ____ (2012) 13 Opinion of the Court Malley and Kalina, already establish that a “complaining witness” is not shielded by absolute immunity. See Brief for Petitioner 17–22. In those cases, law enforcement officials who submitted affidavits in support of applica- tions for arrest warrants were denied absolute immunity because they “performed the function of a complaining witness.” Kalina, 522 U.S., at 131; see Malley, 475 U.S., at 340–341. Relying on these cases, petitioner contends that certain grand jury witnesses—namely, those who qualify as “complaining witnesses”—are not entitled to absolute immunity. Petitioner’s argument is based on a fundamental misunderstanding of the distinctive function played by a “complaining witness” during the period when §1983’s predecessor was enacted. At that time, the term “complaining witness” was used to refer to a party who procured an arrest and initiated a criminal prosecution, see Kalina, 522 U.S., at 135 (SCALIA, J., concurring). A “complaining witness” might not actually ever testify, and thus the term “ ‘witness’ in ‘complaining witness’ is misleading.” Ibid. See also Mal- ley, supra, at 340 (complaining witness “procure[s] the issuance of an arrest warrant by submitting a complaint”); Wyatt v. Cole, 504 U.S. 158, 164–165 (1992) (complaining witness “set[s] the wheels of government in motion by instigating a legal action”). It is true that a mid-19th century complaining witness might testify, either before a grand jury or at trial. But testifying was not a necessary characteristic of a “com- plaining witness.” See M. Newell, Malicious Prosecution 368 (1892). Nor have we been presented with evidence that witnesses who did no more than testify before a grand jury were regarded as complaining witnesses and were successfully sued for malicious prosecution. See Tr. of Oral Arg. 14–15, 24–25. In sum, testifying, whether before a grand jury or at trial, was not the distinctive function performed by a 14 REHBERG v. PAULK Opinion of the Court complaining witness. It is clear—and petitioner does not contend otherwise—that a complaining witness cannot be held liable for perjurious trial testimony. Briscoe, 460 U.S., at 326. And there is no more reason why a com- plaining witness should be subject to liability for testi- mony before a grand jury. Once the distinctive function performed by a “complain- ing witness” is understood, it is apparent that a law en- forcement officer who testifies before a grand jury is not at all comparable to a “complaining witness.” By testifying before a grand jury, a law enforcement officer does not perform the function of applying for an arrest warrant; nor does such an officer make the critical decision to initiate a prosecution. It is of course true that a detective or case agent who has performed or supervised most of the inves- tigative work in a case may serve as an important witness in the grand jury proceeding and may very much want the grand jury to return an indictment. But such a witness, unlike a complaining witness at common law, does not make the decision to press criminal charges. Instead, it is almost always a prosecutor who is respon- sible for the decision to present a case to a grand jury, and in many jurisdictions, even if an indictment is handed up, a prosecution cannot proceed unless the prosecutor signs the indictment.2 It would thus be anomalous to permit a police officer who testifies before a grand jury to be sued —————— 2 The federal courts have concluded uniformly that Rule 7(c) of the Federal Rules of Criminal Procedure, providing that an indictment “must be signed by an attorney for the government,” precludes federal grand juries from issuing an indictment without the prosecutor’s signature, signifying his or her approval. See 4 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §15.1(d) (3d ed. 2007) (herein- after LaFave). However, in some jurisdictions, the grand jury may return an indictment and initiate a prosecution without the prosecu- tor’s signature, but such cases are rare. See 1 S. Beale, W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice, p. 4–76, and n. 2 (2d ed. 2001). Cite as: 566 U. S. ____ (2012) 15 Opinion of the Court for maliciously procuring an unjust prosecution when it is the prosecutor, who is shielded by absolute immunity, who is actually responsible for the decision to prosecute. See Albright v. Oliver, 510 U.S. 266, 279, n. 5 (1994) (GINSBURG, J., concurring) (the prosecutor is the “principal player in carrying out a prosecution”); see ibid. (“[T]he star player is exonerated, but the supporting actor is not”).3 Precisely because no grand jury witness has the power to initiate a prosecution, petitioner is unable to provide a workable standard for determining whether a particular grand jury witness is a “complaining witness.” Here, respondent was the only witness to testify in two of the three grand jury sessions that resulted in indictments. But where multiple witnesses testify before a grand jury, identifying the “complaining witness” would often be difficult. Petitioner suggests that a “complaining witness” —————— 3 Petitioner says there is no reason to distinguish between a person who goes to the police to swear out a criminal complaint and a person who testifies to facts before a grand jury for the same purpose and with the same effect. Brief for Petitioner 2, 23. But this is like saying that a bicycle and an F-16 are the same thing. Even if the functions are similar as a general matter, the entities are quite different. Grand juries, by tradition, statute, and sometimes constitutional mandate, have a status and entitlement to information that absolute immunity furthers. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 423, n. 20 (1976) (“It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors be- ing referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well”); see also United States v. Sells Engi- neering, Inc., 463 U.S. 418, 423 (1983) (“The grand jury has always occupied a high place as an instrument of justice in our system of criminal law—so much so that it is enshrined in the Constitution”). Our holding today supports the functioning of the grand jury system. The importance of the grand jury cannot be underestimated: In the federal system and many States, see LaFave §15.1(d), a felony cannot be charged without the consent of community representatives, a vital protection from unwarranted prosecutions. 16 REHBERG v. PAULK Opinion of the Court is “someone who sets the prosecution in motion.” Tr. of Oral Arg. 8; see Reply Brief for Petitioner 15. And peti- tioner maintains that the same distinction made at com- mon law between complaining witnesses and other wit- nesses applies in §1983 actions. See id., at 14–16. But, as we have explained, a complaining witness played a dis- tinctive role, and therefore even when a “complaining witness” testified, there was a clear basis for distinguish- ing between the “complaining witness” and other wit- nesses. Because no modern grand jury witness plays a comparable role, petitioner’s proposed test would be of little use. Consider a case in which the case agent or lead detective testifies before the grand jury and provides a wealth of background information and then a cooperating witness appears and furnishes critical incriminating testimony. Or suppose that two witnesses each provide essential testimony regarding different counts of an in- dictment or different elements of an offense. In these cases, which witnesses would be “complaining witnesses” and thus vulnerable to suit based on their testimony? B Petitioner contends that the deterrent effect of civil liability is more needed in the grand jury context because trial witnesses are exposed to cross-examination, which is designed to expose perjury. See Brief for Petitioner 21, 25–26. This argument overlooks the fact that a critical grand jury witness is likely to testify again at trial and may be cross-examined at that time. But in any event, the force of petitioner’s argument is more than offset by a special problem that would be created by allowing civil actions against grand jury witnesses—subversion of grand jury secrecy. “ ‘We consistently have recognized that the proper func- tioning of our grand jury system depends upon the secrecy of grand jury proceedings.’ ” United States v. Sells Engi- Cite as: 566 U. S. ____ (2012) 17 Opinion of the Court neering, Inc., 463 U.S. 418, 424 (1983) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218–219 (1979)). “ ‘[I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution.’ ” 463 U.S., at 424. Allowing §1983 actions against grand jury witnesses would compromise this vital secrecy. If the testimony of witnesses before a grand jury could provide the basis for, or could be used as evidence supporting, a §1983 claim, the identities of grand jury witnesses could be discovered by filing a §1983 action and moving for the disclosure of the transcript of grand jury proceedings. Especially in cases involving violent criminal organizations or other subjects who might retaliate against adverse grand jury witnesses, the threat of such disclosure might seriously undermine the grand jury process. C Finally, contrary to petitioner’s suggestion, recognizing absolute immunity for grand jury witnesses does not create an insupportable distinction between States that use grand juries and those that do not. Petitioner argues that it would make no sense to distinguish for purposes of §1983 immunity between prosecutions initiated by the return of a grand jury indictment and those initiated by the filing of a complaint or information, and he notes that 26 States permit felony prosecutions to be brought by information. Brief for Petitioner 23–24. But petitioner draws the wrong analogy. In States that permit felony prosecutions to be initiated by information, the closest analog to a grand jury witness is a witness at a prelimi- nary hearing. Most of the States that do not require an 18 REHBERG v. PAULK Opinion of the Court indictment for felonies provide a preliminary hearing at which witnesses testify. See LaFave §14.2(d), at 304, and n. 47, 307, and n. 60. The lower courts have held that witnesses at a preliminary hearing are protected by the same immunity accorded grand jury witnesses, see, e.g., Brice v. Nkaru, 220 F.3d 233, 239, n. 6 (CA4 2000); Curtis v. Bembenek, 48 F.3d 281, 284–285 (CA7 1995) (citing cases), and petitioner does not argue otherwise, see Tr. of Oral Arg. 51. * * * For these reasons, we hold that a grand jury witness is entitled to the same immunity as a trial witness. Accord- ingly, the judgment of the Court of Appeals for the Elev- enth Circuit is Affirmed

This case requires us to decide whether a “complaining witness” in a grand jury proceeding is entitled to the same immunity in an action under 42 U.S. C. as a witness who testifies at trial. We see no sound reason to draw a distinction for this purpose between grand jury and trial witnesses. I Petitioner Charles Rehberg, a certified public account- ant, sent anonymous faxes to several recipients, including the management of a hospital in Albany, Georgia, criticiz- ing the hospital’s management and activities. In response, the local district attorney’s office, with the assistance of its chief investigator, respondent James Paulk, launched a criminal investigation of petitioner, allegedly as a favor to the hospital’s leadership. Respondent testified before a grand jury, and petitioner was then indicted for aggravated assault, burglary, and six counts of making harassing telephone calls. The in- dictment charged that petitioner had assaulted a hospital physician, Dr. James Hotz, after unlawfully entering the 2 REHBERG v. PAULK Opinion of the Court doctor’s home. Petitioner challenged the sufficiency of the indictment, and it was dismissed. A few months later, respondent returned to the grand jury, and petitioner was indicted again, this time for as- saulting Dr. Hotz on August 22, 2004, and for making harassing phone calls. On this occasion, both the doctor and respondent testified. Petitioner challenged the suf- ficiency of this second indictment, claiming that he was “nowhere near Dr. Hotz” on the date in question and that “[t]here was no evidence whatsoever that [he] committed an assault on anybody.” Again, the indictment was dismissed. While the second indictment was still pending, respond- ent appeared before a grand jury for a third time, and yet another indictment was returned. Petitioner was charged with assault and making harassing phone calls. This final indictment was ultimately dismissed as well. Petitioner then brought this action against respondent under Rev. Stat. 42 U.S. C. Petitioner alleged that respondent conspired to present and did present false testimony to the grand jury. Respondent moved to dismiss, arguing, among other things, that he was entitled to absolute immunity for his grand jury testimony. The United States District Court for the Mid- dle District of Georgia denied respondent’s motion to dismiss, but the Court of Appeals reversed, holding, in accordance with Circuit precedent, that respondent was absolutely immune from a claim based on his grand jury testimony. The Court of Appeals noted petitioner’s allegation that respondent was the sole “complaining witness” before the grand jury, but the Court of Appeals declined to recognize a “complaining witness” exception to its precedent on grand jury witness immunity. See –840. “[A]llowing civil suits for false grand jury testimony,” the court reasoned, “would emasculate the confidential Cite as: 566 U. S. (2012) 3 Opinion of the Court nature of grand jury testimony, and eviscerate the tradi- tional absolute immunity for witness testimony in judi- cial proceedings.” The court went on to hold that respondent was entitled to absolute immunity, not only with respect to claims based directly on his grand jury testimony, but also with respect to the claim that he con- spired to present such testimony. To allow liability to be predicated on the alleged conspiracy, the court concluded, “ ‘would be to permit through the back door what is prohibited through the front.’ ” ). We granted certiorari to resolve a Circuit conflict re- garding the immunity of a “complaining witness” in a grand jury proceeding, 562 U. S. (2011), and we now affirm. II Section 3, which derives from of the Civil Rights Act of 1871, creates a private right of action to vindicate violations of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Under the terms of the statute, “ ‘[e]very person’ who acts under color of state law to deprive another of a constitutional right [is] answerable to that person in a suit for damages.” (6) (citing 42 U.S. C. ). A Despite the broad terms of this Court has long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common- law immunities applicable in tort suits. See, e.g., v. Reed, More than 60 years ago, in the Court held that did not abrogate the long-established absolute immunity enjoyed by legislators for actions taken 4 REHBERG v. PAULK Opinion of the Court within the legitimate sphere of legislative authority. Immunities “well grounded in history and reason,” the Court wrote, were not somehow eliminated “by covert inclusion in the general language” of This interpretation has been reaffirmed by the Court time and again and is now an entrenched feature of our jurisprudence. See, e.g., v. Ray, 386 U.S. 547, 554–555 (1967) (“The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held that the immunity of legislators for acts within the legisla- tive role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine”); (statute must “be read in harmony with general principles of tort immunities and defenses rather than in derogation of them”); v. Navarette, 434 U.S. 555, 561 (8) (“Although the Court has recognized that in enacting Congress must have intended to expose state officials to damages liability in some circum- stances, the section has been consistently construed as not intending wholesale revocation of the common-law im- munity afforded government officials”); (“ ‘It is by now well settled that the tort liability created by cannot be understood in a historical vacuum. One important assumption under- lying the Court’s decisions in this area is that members of the 42d Congress were familiar with common-law princi- ples, including defenses previously recognized in ordinary tort litigation, and that they likely intended these com- mon-law principles to obtain, absent specific provisions to the contrary’ ” (quoting Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1)); (“The starting point in our own analysis is the common law. Our cases have proceeded on the assump- Cite as: 566 U. S. (2012) 5 Opinion of the Court tion that common-law principles of immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so”). B Recognizing that “Congress intended [] to be construed in the light of common-law principles,” the Court has looked to the common law for guidance in de- termining the scope of the immunities available in a action. We do not simply make our own judgment about the need for immunity. We have made it clear that it is not our role “to make a freewheeling policy choice,” 475 U.S. 335, 342 (6), and that we do not have a license to create immunities based solely on our view of sound pol- icy, see Instead, we conduct “a considered inquiry into the immun- ity historically accorded the relevant official at common law and the interests behind it.” We take what has been termed a “functional approach.” See U.S. 219, ; We consult the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed “ ‘with independence and without fear of conse- quences.’ ” ). Taking this ap- proach, we have identified the following functions that are absolutely immune from liability for damages under : actions taken by legislators within the legitimate scope of legislative authority, see actions taken by judges within the legitimate scope of judicial authority, see actions taken by prosecutors in their role as advocates, see – 6 REHBERG v. PAULK Opinion of the Court 431; and the giving of testimony by witnesses at trial, see By contrast, the Court has found no abso- lute immunity for the acts of the chief executive officer of a State, the senior and subordinate officers of a State’s National Guard, the president of a state university, see ; school board members, see 318 ; the superintendent of a state hospital, see ; police officers, see ; prison officials and officers, ; and private co- conspirators of a judge, see 27 (0). C While the Court’s functional approach is tied to the common law’s identification of the functions that merit the protection of absolute immunity, the Court’s precedents have not mechanically duplicated the precise scope of the absolute immunity that the common law provided to pro- tect those functions. See, e.g., )). This approach is illustrated by the Court’s analysis of the absolute immunity enjoyed today by public prosecu- tors. When ’s predecessor was enacted in 1871, it was common for criminal cases to be prosecuted by private parties. See, e.g., (1879) (Brad, J., dissenting) (“[E]very man in the com- munity, if he has probable cause for prosecuting another, has a perfect right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his suit”). And private prosecutors, like private plaintiffs in civil suits, did not enjoy absolute immunity from suit. See Mal, 475 Cite as: 566 U. S. (2012) 7 Opinion of the Court U. S., –341, and n. 3 (citing cases). Instead, “the generally accepted rule” was that a private complainant who procured an arrest or prosecution could be held liable in an action for malicious prosecution if the complainant acted with malice and without probable cause. See at 340–341; see also (Marshall, J., dissenting) (“Both English and American courts routinely permitted plaintiffs to bring actions alleging that the de- fendant had made a false and malicious accusation of a felony to a magistrate or other judicial officer”); Wheeler v. Nesbitt, (“Undoubtedly, every person who puts the criminal law in force maliciously, and without any reasonable or probable cause, commits a wrongful act; and if the accused is thereby prejudiced, either in his person or property, the injury and loss so sustained constitute the proper foundation of an action to recover compensation”); 402 (1852) (no immunity “where a party had maliciously, and without probable cause, procured the plaintiff to be indicted or arrested for an offence of which he was not guilty”). In the decades after the adoption of the 1871 Civil Rights Act, however, the prosecutorial function was in- creasingly assumed by public officials, and common-law courts held that public prosecutors, unlike their private predecessors, were absolutely immune from the types of tort claims that an aggrieved or vengeful criminal defend- ant was most likely to assert, namely, claims for malicious prosecution or defamation. See at 441–442 (White, J., concurring in judgment); n. 11 (noting that cases “decided after 1871 granted a broader immunity to public prosecutors than had been available in malicious prosecution actions against private persons who brought prosecutions at early common law”); see also (SCALIA, J., concurring in judgment in part and dissenting in part) (noting that the 8 REHBERG v. PAULK Opinion of the Court “common-law tradition of prosecutorial immunity developed much later than 1871”). This adaptation of prosecutorial immunity accommo- dated the special needs of public, as opposed to private, prosecutors. Because the daily function of a public prosecu- tor is to bring criminal charges, tort claims against public prosecutors “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.” Such “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties,” and would result in a severe interference with the administration of an important public office. Constant vulnerability to vexatious litigation would give rise to the “possibility that [the prosecutor] would shade his decisions instead of exercising the independence of judgment required by his public trust.” Thus, when the issue of prosecutorial immunity un- der reached this Court in the Court did not simply apply the scope of immunity recognized by common-law courts as of 1871 but instead placed substan- tial reliance on post-1871 cases extending broad immunity to public prosecutors sued for common-law torts. While the Court has looked to the common law in de- termining the scope of the absolute immunity available under the Court has not suggested that is simply a federalized amalgamation of pre-existing common-law claims, an all-in-one federal claim encompass- ing the torts of assault, trespass, false arrest, defamation, malicious prosecution, and more. The new federal claim created by differs in important ways from those pre- existing torts. It is broader in that it reaches constitu- tional and statutory violations that do not correspond to any previously known tort. See 522 U.S., at But it is narrower in that it applies only to tortfeasors who Cite as: 566 U. S. (2012) 9 Opinion of the Court act under color of state law. See Section 3 “ha[s] no precise counterpart in state law. [I]t is the purest coincidence when state statutes or the common law provide for equivalent remedies; any analo- gies to those causes of action are bound to be imperfect.” (5) (internal quo- tation marks and citation omitted). Thus, both the scope of the new tort and the scope of the absolute immunity available in actions differ in some respects from the common law. III A At common law, trial witnesses enjoyed a limited form of absolute immunity for statements made in the course of a judicial proceeding: They had complete immunity against slander and libel claims, even if it was alleged that the statements in question were maliciously false. (citing F. Hilliard, Law of Torts 319 (1866)); see (Mar- shall, J., dissenting); (opinion of SCALIA, J.). In however, this Court held that the immunity of a trial witness sued under is broader: In such a case, a trial witness has absolute immunity with respect to any claim based on the witness’ testimony. When a wit- ness is sued because of his testimony, the Court wrote, “ ‘the claims of the individual must yield to the dictates of public policy.’ ” –333 ). Without absolute im- munity for witnesses, the Court concluded, the truth- seeking process at trial would be impaired. Witnesses “might be reluctant to come forward to testify,” and even if a witness took the stand, the witness “might be inclined to shade his testimony in favor of the potential plaintiff ” for “fear of subsequent liability.” 10 REHBERG v. PAULK Opinion of the Court The factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses. In both contexts, a witness’ fear of retaliatory litigation may deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony. In the Court concluded that the possibility of civil liability was not needed to deter false testimony at trial because other sanctions—chiefly prosecution for perjury—provided a sufficient deterrent. Since perjury before a grand jury, like perjury at trial, is a serious criminal offense, see, e.g., 18 U.S. C. 623(a), there is no reason to think that this deterrent is any less effective in preventing false grand jury testimony. B Neither is there any reason to distinguish law enforce- ment witnesses from lay witnesses. In it was argued that absolute immunity was not needed for police- officer witnesses, but the Court refused to draw that dis- tinction. The Court wrote: “When a police officer appears as a witness, he may reasonably be viewed as acting like any other witness sworn to tell the truth—in which event he can make a strong claim to witness immunity; alternatively, he may be regarded as an official performing a critical role in the judicial process, in which event he may seek the benefit afforded to other governmental par- ticipants in the same proceeding. Nothing in the lan- guage of the statute suggests that such a witness be- longs in a narrow, special category lacking protection against damages suits.” –336 (foot- note omitted). See also (“A police officer on the witness stand performs the same functions as any other witness”). Cite as: 566 U. S. (2012) 11 Opinion of the Court The Court rebuffed two arguments for distin- guishing between law enforcement witnesses and lay witnesses for immunity purposes: first, that absolute im- munity is not needed for law enforcement witnesses be- cause they are less likely to be intimidated by the threat of suit and, second, that such witnesses should not be shielded by absolute immunity because false testimony by a police officer is likely to be more damaging than false testimony by a lay witness. See The Court observed that there are other factors not applicable to lay witnesses that weigh in favor of extending absolute immunity to police officer witnesses. First, police officers testify with some frequency. at 343. “Police officers testify in scores of cases every year,” the Court noted, “and defendants often will transform resentment at being convicted into allegations of perjury by the State’s official witnesses.” If police officer witnesses were routinely forced to defend against claims based on their testimony, their “ ‘energy and attention would be diverted from the pressing duty of enforcing the criminal law.’ ” at 343–344 (quoting U.S., at 425). Second, a police officer witness’ potential liability, if conditioned on the exoneration of the accused, could influ- ence decisions on appeal and collateral relief. 460 U.S., at 344. Needless to say, such decisions should not be influ- enced by the likelihood of a subsequent civil rights action. But the possibility that a decision favorable to the accused might subject a police officer witness to liability would create the “ ‘risk of injecting extraneous concerns’ ” into appellate review and postconviction proceedings. (quoting ). In addition, law enforcement witnesses face the possibility of sanctions not applicable to lay witnesses, namely, loss of their jobs and other employment-related sanctions. For these reasons, we conclude that grand jury wit- 12 REHBERG v. PAULK Opinion of the Court nesses should enjoy the same immunity as witnesses at trial. This means that a grand jury witness has absolute immunity from any claim based on the witness’ testimony. In addition, as the Court of Appeals held, this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other claim concerning the initiation or maintenance of a prosecution. Were it otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim to at- tack the preparation instead of the absolutely immune actions themselves.” Buck v. Fitzsimmons, 509 U.S. 259, 283 (1993) (KENNEDY, J., concurring in part and dissenting in part); see also Dykes v. Hosemann, 776 F.2d 942, 946 (CA11 5) (per curiam) (“[J]udges, on mere allegations of conspiracy or prior agreement, could be hauled into court and made to defend their judicial acts, the precise result judicial immunity was designed to avoid”). In the vast majority of cases involving a claim against a grand jury witness, the witness and the prose- cutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated.1 IV A Petitioner’s main argument is that our cases, chiefly —————— 1 Of course, we do not suggest that absolute immunity extends to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits, see 129–131 ; (6), and fabricate evidence concerning an unsolved crime, see Buck, 509 U.S., at –276. Cite as: 566 U. S. (2012) 13 Opinion of the Court Mal and already establish that a “complaining witness” is not shielded by absolute immunity. See Brief for Petitioner 17–22. In those cases, law enforcement officials who submitted affidavits in support of applica- tions for arrest warrants were denied absolute immunity because they “performed the function of a complaining witness.” ; see Mal, 475 U.S., –341. Relying on these cases, petitioner contends that certain grand jury witnesses—namely, those who qualify as “complaining witnesses”—are not entitled to absolute immunity. Petitioner’s argument is based on a fundamental misunderstanding of the distinctive function played by a “complaining witness” during the period when ’s predecessor was enacted. At that time, the term “complaining witness” was used to refer to a party who procured an arrest and initiated a criminal prosecution, see A “complaining witness” might not actually ever testify, and thus the term “ ‘witness’ in ‘complaining witness’ is misleading.” See also Mal- (complaining witness “procure[s] the issuance of an arrest warrant by submitting a complaint”); (complaining witness “set[s] the wheels of government in motion by instigating a legal action”). It is true that a mid-19th century complaining witness might testify, either before a grand jury or at trial. But testifying was not a necessary characteristic of a “com- plaining witness.” See M. Newell, Malicious Prosecution 368 (1892). Nor have we been presented with evidence that witnesses who did no more than testify before a grand jury were regarded as complaining witnesses and were successfully sued for malicious prosecution. See Tr. of Oral Arg. 14–15, 24–25. In sum, testifying, whether before a grand jury or at trial, was not the distinctive function performed by a 14 REHBERG v. PAULK Opinion of the Court complaining witness. It is clear—and petitioner does not contend otherwise—that a complaining witness cannot be held liable for perjurious trial testimony. 460 U.S., at 326. And there is no more reason why a com- plaining witness should be subject to liability for testi- mony before a grand jury. Once the distinctive function performed by a “complain- ing witness” is understood, it is apparent that a law en- forcement officer who testifies before a grand jury is not at all comparable to a “complaining witness.” By testifying before a grand jury, a law enforcement officer does not perform the function of applying for an arrest warrant; nor does such an officer make the critical decision to initiate a prosecution. It is of course true that a detective or case agent who has performed or supervised most of the inves- tigative work in a case may serve as an important witness in the grand jury proceeding and may very much want the grand jury to return an indictment. But such a witness, unlike a complaining witness at common law, does not make the decision to press criminal charges. Instead, it is almost always a prosecutor who is respon- sible for the decision to present a case to a grand jury, and in many jurisdictions, even if an indictment is handed up, a prosecution cannot proceed unless the prosecutor signs the indictment.2 It would thus be anomalous to permit a police officer who testifies before a grand jury to be sued —————— 2 The federal courts have concluded uniformly that Rule 7(c) of the Federal Rules of Criminal Procedure, providing that an indictment “must be signed by an attorney for the government,” precludes federal grand juries from issuing an indictment without the prosecutor’s signature, signifying his or her approval. See 4 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure 5.1(d) (3d ed. 2007) (herein- after LaFave). However, in some jurisdictions, the grand jury may return an indictment and initiate a prosecution without the prosecu- tor’s signature, but such cases are rare. See 1 S. Beale, W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice, p. 4–76, and n. 2 (2d ed. 2001). Cite as: 566 U. S. (2012) 15 Opinion of the Court for maliciously procuring an unjust prosecution when it is the prosecutor, who is shielded by absolute immunity, who is actually responsible for the decision to prosecute. See (GINSBURG, J., concurring) (the prosecutor is the “principal player in carrying out a prosecution”); see (“[T]he star player is exonerated, but the supporting actor is not”).3 Precisely because no grand jury witness has the power to initiate a prosecution, petitioner is unable to provide a workable standard for determining whether a particular grand jury witness is a “complaining witness.” Here, respondent was the only witness to testify in two of the three grand jury sessions that resulted in indictments. But where multiple witnesses testify before a grand jury, identifying the “complaining witness” would often be difficult. Petitioner suggests that a “complaining witness” —————— 3 Petitioner says there is no reason to distinguish between a person who goes to the police to swear out a criminal complaint and a person who testifies to facts before a grand jury for the same purpose and with the same effect. Brief for Petitioner 2, 23. But this is like saying that a bicycle and an F-16 are the same thing. Even if the functions are similar as a general matter, the entities are quite different. Grand juries, by tradition, statute, and sometimes constitutional mandate, have a status and entitlement to information that absolute immunity furthers. See, e.g., (6) (“It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors be- ing referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well”); see also United (“The grand jury has always occupied a high place as an instrument of justice in our system of criminal law—so much so that it is enshrined in the Constitution”). Our holding today supports the functioning of the grand jury system. The importance of the grand jury cannot be underestimated: In the federal system and many States, see LaFave 5.1(d), a felony cannot be charged without the consent of community representatives, a vital protection from unwarranted prosecutions. 16 REHBERG v. PAULK Opinion of the Court is “someone who sets the prosecution in motion.” Tr. of Oral Arg. 8; see Reply Brief for Petitioner 15. And peti- tioner maintains that the same distinction made at com- mon law between complaining witnesses and other wit- nesses applies in actions. See at 14–16. But, as we have explained, a complaining witness played a dis- tinctive role, and therefore even when a “complaining witness” testified, there was a clear basis for distinguish- ing between the “complaining witness” and other wit- nesses. Because no modern grand jury witness plays a comparable role, petitioner’s proposed test would be of little use. Consider a case in which the case agent or lead detective testifies before the grand jury and provides a wealth of background information and then a cooperating witness appears and furnishes critical incriminating testimony. Or suppose that two witnesses each provide essential testimony regarding different counts of an in- dictment or different elements of an offense. In these cases, which witnesses would be “complaining witnesses” and thus vulnerable to suit based on their testimony? B Petitioner contends that the deterrent effect of civil liability is more needed in the grand jury context because trial witnesses are exposed to cross-examination, which is designed to expose perjury. See Brief for Petitioner 21, 25–26. This argument overlooks the fact that a critical grand jury witness is likely to testify again at trial and may be cross-examined at that time. But in any event, the force of petitioner’s argument is more than offset by a special problem that would be created by allowing civil actions against grand jury witnesses—subversion of grand jury secrecy. “ ‘We consistently have recognized that the proper func- tioning of our grand jury system depends upon the secrecy of grand jury proceedings.’ ” United States v. Sells Engi- Cite as: 566 U. S. (2012) 17 Opinion of the Court neering, Inc., (quoting Douglas Oil 218–219 (9)). “ ‘[I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution.’ ” 463 U.S., at Allowing actions against grand jury witnesses would compromise this vital secrecy. If the testimony of witnesses before a grand jury could provide the basis for, or could be used as evidence supporting, a claim, the identities of grand jury witnesses could be discovered by filing a action and moving for the disclosure of the transcript of grand jury proceedings. Especially in cases involving violent criminal organizations or other subjects who might retaliate against adverse grand jury witnesses, the threat of such disclosure might seriously undermine the grand jury process. C Finally, contrary to petitioner’s suggestion, recognizing absolute immunity for grand jury witnesses does not create an insupportable distinction between States that use grand juries and those that do not. Petitioner argues that it would make no sense to distinguish for purposes of immunity between prosecutions initiated by the return of a grand jury indictment and those initiated by the filing of a complaint or information, and he notes that 26 States permit felony prosecutions to be brought by information. Brief for Petitioner 23–24. But petitioner draws the wrong analogy. In States that permit felony prosecutions to be initiated by information, the closest analog to a grand jury witness is a witness at a prelimi- nary hearing. Most of the States that do not require an 18 REHBERG v. PAULK Opinion of the Court indictment for felonies provide a preliminary hearing at which witnesses testify. See LaFave 4.2(d), at 304, and n. 47, 307, and n. 60. The lower courts have held that witnesses at a preliminary hearing are protected by the same immunity accorded grand jury witnesses, see, e.g., ; Curtis v. Bembenek, (citing cases), and petitioner does not argue otherwise, see Tr. of Oral Arg. 51. * * * For these reasons, we hold that a grand jury witness is entitled to the same immunity as a trial witness. Accord- ingly, the judgment of the Court of Appeals for the Elev- enth Circuit is Affirmed

Justice Thomas

majority

Schindler Elevator Corp. v. United States ex rel. Kirk

2011-05-16

https://www.courtlistener.com/opinion/216735/schindler-elevator-corp-v-united-states-ex-rel-kirk/

https://www.courtlistener.com/api/rest/v3/clusters/216735/

The False Claims Act (FCA), 31 U.S. C. §§3729–3733, prohibits submitting false or fraudulent claims for pay ment to the United States, §3729(a), and authorizes qui tam suits, in which private parties bring civil actions in the Government’s name, §3730(b)(1). This case concerns the FCA’s public disclosure bar, which generally forecloses qui tam suits that are “based upon the public disclosure of allegations or transactions . . . in a congressional, adminis trative, or Government Accounting Office report, hearing, audit, or investigation.” §3730(e)(4)(A) (footnote omitted).1 We must decide whether a federal agency’s written re sponse to a request for records under the Freedom of Information Act (FOIA), 5 U.S. C. §552, constitutes a “report” within the meaning of the public disclosure bar. —————— 1 During the pendency of this case, the Patient Protection and Afford able Care Act, 124 Stat. 119, amended the public disclosure bar. Because the amendments are not applicable to pending cases, Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, n. 1 (2010) (slip op., at 1, n. 1), this opinion refers to the statute as it existed when the suit was filed. 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court We hold that it does. I Petitioner Schindler Elevator Corporation manufac tures, installs, and services elevators and escalators.2 In 1989, Schindler acquired Millar Elevator Industries, Inc., and the two companies merged in 2002. Since 1999, Schindler and the United States have en tered into hundreds of contracts that are subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA). That Act requires contractors like Schindler to report certain information to the Secretary of Labor, including how many of its employees are “qualified covered veterans” under the statute. 38 U.S. C. §4212(d)(1). VEVRAA regulations required Schindler to agree in each of its contracts that it would “submit VETS– 100 Reports no later than September 30 of each year.” 48 CFR §52.222–37(c) (2008); see also §22.1310(b). Respondent Daniel Kirk, a United States Army veteran who served in Vietnam, was employed by Millar and Schindler from 1978 until 2003. In August 2003, Kirk resigned from Schindler in response to what he saw as Schindler’s efforts to force him out.3 In March 2005, Kirk filed this action against Schindler under the False Claims Act, which imposes civil penalties and treble damages on persons who submit false or —————— 2 Thefacts in this Part, which we must accept as true, are taken from the amended complaint and the filings submitted in opposition to Schindler’s motion to dismiss. 3 Kirk filed a complaint with the Department of Labor’s Office of Fed eral Contract Compliance Programs (OFCCP), claiming that he had been “improperly demoted and constructively terminated by Schindler despite his status as a Vietnam era veteran.” App. 23a. The OFCCP investigated Schindler’s compliance with VEVRAA and found insuffi cient evidence to support Kirk’s claim. In November 2009, the Depart ment of Labor affirmed the OFCCP’s finding. 601 F.3d 94, 99 (CA2 2010). Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court fraudulent claims for payment to the United States. 31 U.S. C. §3729(a). The FCA authorizes both civil actions by the Attorney General and private qui tam actions to enforce its provisions. §3730. When, as here, the Gov ernment chooses not to intervene in a qui tam action, the private relator stands to receive between 25% and 30% of the proceeds of the action. §3730(d)(2). In an amended complaint filed in June 2007, Kirk al leged that Schindler had submitted hundreds of false claims for payment under its Government contracts. According to Kirk, Schindler had violated VEVRAA’s reporting requirements by failing to file certain required VETS–100 reports and including false information in those it did file. The company’s claims for payment were false, Kirk alleged, because Schindler had falsely certified its compliance with VEVRAA. Kirk did not specify the amount of damages he sought on behalf of the United States, but he asserted that the value of Schindler’s VEVRAA-covered contracts exceeded $100 million. To support his allegations, Kirk pointed to information his wife, Linda Kirk, received from the Department of Labor (DOL) in response to three FOIA requests. Mrs. Kirk had sought all VETS–100 reports filed by Schindler for the years 1998 through 2006. The DOL responded by letter or e-mail to each request with information about the records found for each year, including years for which no responsive records were located. The DOL informed Mrs. Kirk that it found no VETS–100 reports filed by Schindler in 1998, 1999, 2000, 2002, or 2003. For the other years, the DOL provided Mrs. Kirk with copies of the reports filed by Schindler, 99 in all. Schindler moved to dismiss on a number of grounds, including that the FCA’s public disclosure bar deprived the District Court of jurisdiction. See §3730(e)(4)(A). The District Court granted the motion, concluding that most of Kirk’s allegations failed to state a claim and that the 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court remainder were based upon the public disclosure of alle gations or transactions in an administrative “report” or “investigation.” 606 F. Supp. 2d 448 (SDNY 2009). The Court of Appeals for the Second Circuit vacated and remanded. 601 F.3d 94 (2010). The court effectively held that an agency’s response to a FOIA request is neither a “report” nor an “investigation” within the meaning of the FCA’s public disclosure bar. See id., at 103–111 (agreeing with United States ex rel. Haight v. Catholic Healthcare West, 445 F.3d 1147 (CA9 2006), and disagreeing with United States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F.3d 376 (CA3 1999)). We granted certio rari, 561 U. S. ___ (2010), and now reverse and remand. II Schindler argues that “report” in the FCA’s public dis closure bar carries its ordinary meaning and that the DOL’s written responses to Mrs. Kirk’s FOIA requests are therefore “reports.” We agree.4 A 1 Adopted in 1986, the FCA’s public disclosure bar pro vides: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions in a criminal, civil, or adminis trative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of —————— 4 Becausewe conclude that a written response to a FOIA request qualifies as a “report” within the meaning of the public disclosure bar, we need not address whether an agency’s search in response to a FOIA request also qualifies as an “investigation.” Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court the information.” 31 U.S. C. §3730(e)(4)(A) (footnote omitted). Because the statute does not define “report,” we look first to the word’s ordinary meaning. See Gross v. FBL Financial Services, Inc., 557 U. S. ___, ___ (2009) (slip op., at 7) (“Statutory construction must begin with the lan guage employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose” (internal quotation marks omit ted)); Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning”). A “report” is “some thing that gives information” or a “notification,” Webster’s Third New International Dictionary 1925 (1986), or “[a]n official or formal statement of facts or proceedings,” Black’s Law Dictionary 1300 (6th ed. 1990). See also 13 Oxford English Dictionary 650 (2d ed. 1989) (“[a]n account brought by one person to another”); American Heritage Dictionary 1103 (1981) (“[a]n account or announcement that is prepared, presented, or delivered, usually in formal or organized form”); Random House Dictionary 1634 (2d ed. 1987) (“an account or statement describing in detail an event, situation, or the like”). This broad ordinary meaning of “report” is consistent with the generally broad scope of the FCA’s public disclo sure bar. As we explained last Term, to determine the meaning of one word in the public disclosure bar, we must consider the provision’s “entire text,” read as an “inte grated whole.” Graham County Soil and Water Conserva tion Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, ___, n. 12 (2010) (slip op., at 8, 12, n. 12); see also Tyler v. Cain, 533 U.S. 656, 662 (2001) (“We do not . . . construe the meaning of statutory terms in a vacuum”). The other sources of public disclosure in §3730(e)(4)(A), especially “news media,” suggest that the public disclosure bar pro 6 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court vides “a broa[d] sweep.” Graham County, supra, at ___ (slip op., at 8). The statute also mentions “administrative hearings” twice, reflecting intent to avoid underinclusive ness even at the risk of redundancy. The phrase “allegations or transactions” in §3730(e) (4)(A) additionally suggests a wide-reaching public disclo sure bar. Congress covered not only the disclosure of “allegations” but also “transactions,” a term that courts have recognized as having a broad meaning. See, e.g., Moore v. New York Cotton Exchange, 270 U.S. 593, 610 (1926) (“ ‘Transaction’ is a word of flexible meaning”); Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 391 (CA5 2002) (“[T]he ordinary meaning of the term ‘transaction’ is a broad reference to many different types of business dealings between parties”). 2 Nor is there any textual basis for adopting a narrower definition of “report.” The Court of Appeals, in holding that FOIA responses were not “reports,” looked to the words “hearing, audit, or investigation,” and the phrase “criminal, civil, [and] administrative hearings.” It con cluded that all of these sources “connote the synthesis of information in an investigatory context” to “serve some end of the government.” 601 F.3d, at 107; cf. Brief for Respondent 30, n. 15 (“Each is part of the government’s ongoing effort to fight fraud”). Applying the noscitur a sociis canon, the Court of Appeals then determined that these “ ‘neighboring words’ ” mandated a narrower mean ing for “report” than its ordinary meaning. 601 F.3d, at 107. The Court of Appeals committed the very error we re versed in Graham County. Like the Fourth Circuit in that case, the Second Circuit here applied the noscitur a sociis canon only to the immediately surrounding words, to the exclusion of the rest of the statute. See 601 F.3d, at 107, Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court n. 6. We emphasized in Graham County that “all of the sources [of public disclosure] listed in §3730(e)(4)(A) pro vide interpretive guidance.” 559 U. S., at ___ (slip op., at 8). When all of the sources are considered, the reference to “news media”—which the Court of Appeals did not consider—suggests a much broader scope. Ibid. The Government similarly errs by focusing only on the adjectives “congressional, administrative, or [GAO],”5 which precede “report.” Brief for United States as Amicus Curiae 18. It contends that these adjectives suggest that the public disclosure bar applies only to agency reports “analogous to those that Congress and the GAO would issue or conduct.” Ibid. As we explained in Graham County, however, those three adjectives tell us nothing more than that a “report” must be governmental. See 559 U. S., at ___, n. 7 (slip op., at 7, n. 7). The governmental nature of the FOIA responses at issue is not disputed. Finally, applying the ordinary meaning of “report” does not render superfluous the other sources of public disclo sure in §3730(e)(4)(A). Kirk argues that reading “report” to mean “something that gives information” would sub sume the other words in the phrase “report, hearing, audit, or investigation.” Brief for Respondent 23. But Kirk admits that hearings, audits, and investigations are processes “to obtain information.” Ibid. (emphasis added). Those processes are thus clearly different from “something that gives information.” Moreover, the statute contem plates some redundancy: An “audit,” for example, will often be a type of “investigation.” We are not persuaded that we should adopt a “different, somewhat special meaning” of “report” over the word’s —————— 5 Although the statute refers to the “Government Accounting Office,” it is undisputed that Congress meant the General Accounting Office, also known as GAO and now renamed the Government Accountability Office. See Graham County, 559 U. S., at ___, n. 6 (slip op., at 6, n. 6). 8 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court “primary meaning.” Muscarello v. United States, 524 U.S. 125, 130, 128 (1998). Indeed, we have cautioned recently against interpreting the public disclosure bar in a way inconsistent with a plain reading of its text. In Graham County, we rejected several arguments for construing the statute narrowly, twice emphasizing that the sole “touch stone” in the statutory text is “public disclosure.” 559 U. S., at ___, ___ (slip op., at 11, 19). We chose in that case simply to give the text its “most natura[l] read[ing],” id., at ___ (slip op., at 5), and we do so again here. B A written agency response to a FOIA request falls within the ordinary meaning of “report.” FOIA requires each agency receiving a request to “notify the person making such request of [its] determination and the reasons therefor.” 5 U.S. C. §552(a)(6)(A)(i). When an agency denies a request in whole or in part, it must addi tionally “set forth the names and titles or positions of each person responsible for the denial,” “make a reasonable effort to estimate the volume of any [denied] matter,” and “provide any such estimate to the person making the request.” §§552(a)(6)(C)(i), (F). The DOL has adopted more detailed regulations implementing FOIA and man dating a response in writing. See 29 CFR §70.21(a) (2009) (requiring written notice of the grant of a FOIA request and a description of the manner in which records will be disclosed); §§70.21(b)–(c) (requiring a “brief statement of the reason or reasons for [a] denial,” as well as written notification if a record “cannot be located or has been destroyed” (italics deleted)). So, too, have other federal agencies. See, e.g., 28 CFR §16.6 (2010) (Dept. of Justice); 43 CFR §2.21 (2009) (Dept. of Interior); 7 CFR §1.7 (2010) (Dept. of Agriculture). Such an agency response plainly is “something that gives information,” a “notification,” and an “official or formal statement of facts.” Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court Any records the agency produces along with its written FOIA response are part of that response, “just as if they had been reproduced as an appendix to a printed report.” Mistick, 186 F.3d, at 384, n. 5. Nothing in the public disclosure bar suggests that a document and its attach ments must be disaggregated and evaluated individually. If an allegation or transaction is disclosed in a record attached to a FOIA response, it is disclosed “in” that FOIA response and, therefore, disclosed “in” a report for the purposes of the public disclosure bar.6 The DOL’s three written FOIA responses to Mrs. Kirk, along with their attached records, are thus reports within the meaning of the public disclosure bar. Each response was an “official or formal statement” that “[gave] informa tion” and “notif[ied]” Mrs. Kirk of the agency’s resolution of her FOIA request. III A In interpreting a statute, “[o]ur inquiry must cease if the statutory language is unambiguous,” as we have found, and “ ‘the statutory scheme is coherent and consis tent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). We are not persuaded by asser tions that it would be anomalous to read the public disclo sure bar to encompass written FOIA responses. 1 The drafting history of the public disclosure bar does not contradict our holding. As originally enacted in 1863, the FCA placed no restriction on the sources from which a qui tam relator could acquire information on which to base a —————— 6 It is irrelevant whether a particular record is itself a report. The attached records do not “becom[e]” reports, 601 F.3d, at 109, but simply are part of a report. 10 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court lawsuit. See Graham County, 559 U. S., at ___ (slip op., at 12). Accordingly, this Court upheld the recovery of a relator, even though the Government claimed that he had discovered the basis for his lawsuit by reading a federal criminal indictment. See United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943). In response, Congress amended the statute to preclude such “parasitic” qui tam actions based on “evidence or information in the posses sion of the United States . . . at the time such suit was brought.” 559 U. S., at ___ (slip op., at 12–13) (internal quotation marks omitted). Then, in 1986, Congress re placed the so-called Government knowledge bar with the narrower public disclosure bar. Id., at ___ (slip op., at 13). The Court of Appeals concluded that it would be incon sistent with this drafting history to hold that written FOIA responses are reports. The court reasoned that doing so would “essentially resurrect, in a significant subset of cases, the government possession standard . . . repudiated in 1986.” 601 F.3d, at 109. We disagree with the Court of Appeals’ conclusion. As a threshold matter, “the drafting history of the public disclo sure bar raises more questions than it answers.” Graham County, supra, at ___ (slip op., at 14). In any event, it is hardly inconsistent with the drafting history to read the public disclosure bar as operating similarly to the Gov ernment knowledge bar in a “subset of cases.” 601 F.3d, at 109. As we have observed, “[r]ather than simply repeal the Government knowledge bar,” the public disclosure bar was “an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits.” 559 U. S., at ___ (slip op., at 13) (emphasis added). If anything, the drafting history supports our holding. The sort of case that Kirk has brought seems to us a clas sic example of the “opportunistic” litigation that the public disclosure bar is designed to discourage. Ibid. (internal Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court quotation marks omitted). Although Kirk alleges that he became suspicious from his own experiences as a veteran working at Schindler, anyone could have filed the same FOIA requests and then filed the same suit. Similarly, anyone could identify a few regulatory filing and certifica tion requirements, submit FOIA requests until he discov ers a federal contractor who is out of compliance, and potentially reap a windfall in a qui tam action under the FCA. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 20 (“Government contractors . . . are required to submit certifications re lated to everything from how they dispose of hazardous materials to their affirmative action plans” (citing 40 U.S. C. §3142 and 29 U.S. C. §793)).7 2 Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. FOIA requires agencies to release some records even absent a request. See 5 U.S. C. §§552(a)(1), (2). Kirk argues that it would be strange that two relators could obtain copies of the same document but that only the relator who got the document in response to a FOIA re quest would find his case barred. This argument assumes that records released under FOIA, but not attached to a written FOIA response, do not fall within the public disclosure bar. We do not decide that question. But even assuming, as Kirk does, that such records are not covered by the public disclosure bar, we —————— 7 There is no merit to the suggestion that the public disclosure bar is intended only to exclude qui tam suits that “ride the investigatory coattails of the government’s own processes.” Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 25, 26; see Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting the argument that the public disclosure bar applies only to allegations or transactions that “have landed on the desk of a DOJ lawyer”). 12 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court are not troubled by the different treatment. By its plain terms, the public disclosure bar applies to some meth- ods of public disclosure and not to others. See Graham County, supra, at ___ (slip op., at 4) (“[T]he FCA’s public disclosure bar . . . deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain channels” (emphasis added)). It would not be anomalous if some methods of FOIA disclosure fell within the scope of the public disclosure bar and some did not. We also are not concerned that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents. This argument assumes that the public disclosure of information in a written FOIA response forever taints that information for purposes of the public disclosure bar. But it may be that a relator who comes by that information from a different source has a legitimate argument that his lawsuit is not “based upon” the initial public disclosure. 31 U.S. C. §3730(e)(4)(A). That question has divided the Courts of Appeals, and we do not resolve it here. See Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 915 (CA7 2009) (describing the split in authority). It may also be that such a relator qualifies for the “original source” exception.8 In any event, the notion that potential defendants will make FOIA requests to insulate themselves from liability —————— 8 An “original source” is “an individual who has direct and independ ent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” §3730(e)(4)(B). Some Courts of Appeals have narrowly construed the exception to limit “original sources” to those who were the cause of the public disclosure, while others have been more generous. See United States ex rel. Duxbury v. Ortho Biotech Prods., L. P., 579 F.3d 13, 22 (CA1 2009) (describing a three-way split among the Courts of Appeals). That question is not before us, and we do not decide it. Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court is pure speculation. Cf. Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting as “strained speculation” an argument that local governments will manipulate the public disclosure bar to escape liability). There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are “reports” within the meaning of the public disclosure bar. B Even if we accepted these extratextual arguments, Kirk and his amici have provided no principled way to define “report” to exclude FOIA responses without excluding other documents that are indisputably reports. The Gov ernment, for example, struggled to settle on a single defi nition. Compare Brief for United States as Amicus Curiae 19 (“report” must be read to “reflect a focus on situations in which the government is conducting, or has completed, some focused inquiry or analysis concerning the relevant facts”) with id., at 21 (“A FOIA response is not a ‘report’ . . . because the federal agency is not charged with uncov ering the truth of any matter”), and Tr. of Oral Arg. 33 (“[T]he way to think about it is whether or not the agency . . . is engaging in a substantive inquiry into and a sub stantive analysis of information”). It is difficult to see how the Department of Justice’s “Annual Report” of FOIA statistics—something that is indisputably a Government report—would qualify under the latter two definitions. See Dept. of Justice, Freedom of Information Act An- nual Report, Fiscal Year 2010, http://www.justice.gov/oip/ annual_report/2010/cover.htm (as visited May 12, 2011, and available in Clerk of Court’s case file); see also Tr. of Oral Arg. 19 (Kirk conceding that the DOJ annual report is a report). And even if the first definition arguably encompasses that report, it would seem also to include FOIA responses, which convey the results of a Govern ment agency’s “focused inquiry.” 14 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court Kirk also was unable to articulate a workable definition. His various proposed definitions suffer the same deficien cies as the Government’s. Compare Brief for Respondent 27 and Tr. of Oral Arg. 17–18 with Brief for Respondent 34–39 and Tr. of Oral Arg. 23. Kirk’s first suggestion would exclude “a lot of things that are labeled . . . report,” id., at 22, and the second—the definition advanced by the Court of Appeals—would seem to include written FOIA responses, id., at 28–29. In the end, it appears that the “only argument is that FOIA is a different kind of mis sion”—“a special case.” Id., at 31. We see no basis for that distinction and adhere to the principle that undefined statutory terms carry their ordinary meaning. * * * The DOL’s three written FOIA responses in this case, along with the accompanying records produced to Mrs. Kirk, are reports within the meaning of the public dis closure bar. Whether Kirk’s suit is “based upon . . . allegations or transactions” disclosed in those reports is a question for the Court of Appeals to resolve on remand. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. ____ (2011) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–188 _________________ SCHINDLER ELEVATOR CORPORATION, PETI- TIONER v. UNITED STATES EX REL.

The False Claims Act (FCA), 31 U.S. C. prohibits submitting false or fraudulent claims for pay ment to the United States, and authorizes qui tam suits, in which private parties bring civil actions in the Government’s name, This case concerns the FCA’s public disclosure bar, which generally forecloses qui tam suits that are “based upon the public disclosure of allegations or transactions in a congressional, adminis trative, or Government Accounting Office report, hearing, audit, or investigation.” (footnote omitted).1 We must decide whether a federal agency’s written re sponse to a request for records under the Freedom of Information Act (FOIA), 5 U.S. C. constitutes a “report” within the meaning of the public disclosure bar. —————— 1 During the pendency of this case, the Patient Protection and Afford able Care Act, amended the public disclosure bar. Because the amendments are not applicable to pending cases, Graham Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. n. 1 (slip op., at 1, n. 1), this opinion refers to the statute as it existed when the suit was filed. 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court We hold that it does. I Petitioner Schindler Elevator Corporation manufac tures, installs, and services elevators and escalators.2 In 1989, Schindler acquired Millar Elevator Industries, Inc., and the two companies merged in 2002. Since 19, Schindler and the United States have en tered into hundreds of contracts that are subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA). That Act requires contractors like Schindler to report certain information to the Secretary of Labor, including how many of its employees are “qualified covered veterans” under the statute. 38 U.S. C. VEVRAA regulations required Schindler to agree in each of its contracts that it would “submit VETS– 100 Reports no later than September 30 of each year.” 48 CFR (2008); see also Respondent Daniel Kirk, a United States Army veteran who served in Vietnam, was employed by Millar and Schindler from 1978 until 2003. In August 2003, Kirk resigned from Schindler in response to what he saw as Schindler’s efforts to force him out.3 In March 2005, Kirk filed this action against Schindler under the False Claims Act, which imposes civil penalties and treble damages on persons who submit false or —————— 2 Thefacts in this Part, which we must accept as true, are taken from the amended complaint and the filings submitted in opposition to Schindler’s motion to dismiss. 3 Kirk filed a complaint with the Department of Labor’s Office of Fed eral Contract Compliance Programs (OFCCP), claiming that he had been “improperly demoted and constructively terminated by Schindler despite his status as a Vietnam era veteran.” App. 23a. The OFCCP investigated Schindler’s compliance with VEVRAA and found insuffi cient evidence to support Kirk’s claim. In November the Depart ment of Labor affirmed the OFCCP’s finding. Cite as: 563 U. S. (2011) 3 Opinion of the Court fraudulent claims for payment to the United States. 31 U.S. C. The FCA authorizes both civil actions by the Attorney General and private qui tam actions to enforce its provisions. When, as here, the Gov ernment chooses not to intervene in a qui tam action, the private relator stands to receive between 25% and 30% of the proceeds of the action. In an amended complaint filed in June 2007, Kirk al leged that Schindler had submitted hundreds of false claims for payment under its Government contracts. According to Kirk, Schindler had violated VEVRAA’s reporting requirements by failing to file certain required VETS–100 and including false information in those it did file. The company’s claims for payment were false, Kirk alleged, because Schindler had falsely certified its compliance with VEVRAA. Kirk did not specify the amount of damages he sought on behalf of the United States, but he asserted that the value of Schindler’s VEVRAA-covered contracts exceeded $100 million. To support his allegations, Kirk pointed to information his wife, Linda Kirk, received from the Department of Labor (DOL) in response to three FOIA requests. Mrs. Kirk had sought all VETS–100 filed by Schindler for the years 18 through The DOL responded by letter or e-mail to each request with information about the records found for each year, including years for which no responsive records were located. The DOL informed Mrs. Kirk that it found no VETS–100 filed by Schindler in 18, 19, 2000, 2002, or 2003. For the other years, the DOL provided Mrs. Kirk with copies of the filed by Schindler, in all. Schindler moved to dismiss on a number of grounds, including that the FCA’s public disclosure bar deprived the District Court of jurisdiction. See The District Court granted the motion, concluding that most of Kirk’s allegations failed to state a claim and that the 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court remainder were based upon the public disclosure of alle gations or transactions in an administrative “report” or “investigation.” The Court of Appeals for the Second Circuit vacated and remanded. The court effectively held that an agency’s response to a FOIA request is neither a “report” nor an “investigation” within the meaning of the FCA’s public disclosure bar. See at 103–111 and disagreeing with United States ex rel. (CA3 19)). We granted certio rari, 561 U. S. and now reverse and remand. II Schindler argues that “report” in the FCA’s public dis closure bar carries its ordinary meaning and that the DOL’s written responses to Mrs. Kirk’s FOIA requests are therefore “.” We agree.4 A 1 Adopted in 1986, the FCA’s public disclosure bar pro vides: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions in a criminal, civil, or adminis trative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of —————— 4 Becausewe conclude that a written response to a FOIA request qualifies as a “report” within the meaning of the public disclosure bar, we need not address whether an agency’s search in response to a FOIA request also qualifies as an “investigation.” Cite as: 563 U. S. (2011) 5 Opinion of the Court the information.” 31 U.S. C. (footnote omitted). Because the statute does not define “report,” we look first to the word’s ordinary meaning. See Gross v. FBL Financial Services, Inc., 557 U. S. (slip op., at 7) (“Statutory construction must begin with the lan guage employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose” (internal quotation marks omit ted)); Asgrow Seed (15) (“When terms used in a statute are undefined, we give them their ordinary meaning”). A “report” is “some thing that gives information” or a “notification,” Webster’s Third New International Dictionary 1925 (1986), or “[a]n official or formal statement of facts or proceedings,” Black’s Law Dictionary 1300 (6th ed. 10). See also 13 Oxford English Dictionary 650 (2d ed. 1989) (“[a]n account brought by one person to another”); American Heritage Dictionary 1103 (1981) (“[a]n account or announcement that is prepared, presented, or delivered, usually in formal or organized form”); Random House Dictionary 1634 (2d ed. 1987) (“an account or statement describing in detail an event, situation, or the like”). This broad ordinary meaning of “report” is consistent with the generally broad scope of the FCA’s public disclo sure bar. As we explained last Term, to determine the meaning of one word in the public disclosure bar, we must consider the provision’s “entire text,” read as an “inte grated whole.” Graham Soil and Water Conserva tion Dist. v. United States ex rel. Wilson, 559 U. S. n. 12 (slip op., at 8, 12, n. 12); see also Tyler v. Cain, (“We do not construe the meaning of statutory terms in a vacuum”). The other sources of public disclosure in especially “news media,” suggest that the public disclosure bar pro 6 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court vides “a broa[d] sweep.” Graham at (slip op., at 8). The statute also mentions “administrative hearings” twice, reflecting intent to avoid underinclusive ness even at the risk of redundancy. The phrase “allegations or transactions” in (4)(A) additionally suggests a wide-reaching public disclo sure bar. Congress covered not only the disclosure of “allegations” but also “transactions,” a term that courts have recognized as having a broad meaning. See, e.g., (1926) (“ ‘Transaction’ is a word of flexible meaning”); 391 (CA5 2002) (“[T]he ordinary meaning of the term ‘transaction’ is a broad reference to many different types of business dealings between parties”). 2 Nor is there any textual basis for adopting a narrower definition of “report.” The Court of Appeals, in holding that FOIA responses were not “,” looked to the words “hearing, audit, or investigation,” and the phrase “criminal, civil, [and] administrative hearings.” It con cluded that all of these sources “connote the synthesis of information in an investigatory context” to “serve some end of the government.” ; cf. Brief for Respondent 30, n. 15 (“Each is part of the government’s ongoing effort to fight fraud”). Applying the noscitur a sociis canon, the Court of Appeals then determined that these “ ‘neighboring words’ ” mandated a narrower mean ing for “report” than its ordinary meaning. 601 F.3d, at 107. The Court of Appeals committed the very error we re versed in Graham Like the Fourth Circuit in that case, the Second Circuit here applied the noscitur a sociis canon only to the immediately surrounding words, to the exclusion of the rest of the statute. See Cite as: 563 U. S. (2011) 7 Opinion of the Court n. 6. We emphasized in Graham that “all of the sources [of public disclosure] listed in pro vide interpretive guidance.” 559 U. S., at (slip op., at 8). When all of the sources are considered, the reference to “news media”—which the Court of Appeals did not consider—suggests a much broader scope. The Government similarly errs by focusing only on the adjectives “congressional, administrative, or [GAO],”5 which precede “report.” Brief for United States as Amicus Curiae 18. It contends that these adjectives suggest that the public disclosure bar applies only to agency “analogous to those that Congress and the GAO would issue or conduct.” As we explained in Graham however, those three adjectives tell us nothing more than that a “report” must be governmental. See 559 U. S., at n. 7 (slip op., at 7, n. 7). The governmental nature of the FOIA responses at issue is not disputed. Finally, applying the ordinary meaning of “report” does not render superfluous the other sources of public disclo sure in Kirk argues that reading “report” to mean “something that gives information” would sub sume the other words in the phrase “report, hearing, audit, or investigation.” Brief for Respondent 23. But Kirk admits that hearings, audits, and investigations are processes “to obtain information.” Those processes are thus clearly different from “something that gives information.” Moreover, the statute contem plates some redundancy: An “audit,” for example, will often be a type of “investigation.” We are not persuaded that we should adopt a “different, somewhat special meaning” of “report” over the word’s —————— 5 Although the statute refers to the “Government Accounting Office,” it is undisputed that Congress meant the General Accounting Office, also known as GAO and now renamed the Government Accountability Office. See Graham 559 U. S., at n. 6 (slip op., at 6, n. 6). 8 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court “primary meaning.” Muscarello v. United States, 524 U.S. 125, 130, 128 (18). Indeed, we have cautioned recently against interpreting the public disclosure bar in a way inconsistent with a plain reading of its text. In Graham we rejected several arguments for construing the statute narrowly, twice emphasizing that the sole “touch stone” in the statutory text is “public disclosure.” 559 U. S., at (slip op., at 11, 19). We chose in that case simply to give the text its “most natura[l] read[ing],” at (slip op., at 5), and we do so again here. B A written agency response to a FOIA request falls within the ordinary meaning of “report.” FOIA requires each agency receiving a request to “notify the person making such request of [its] determination and the reasons therefor.” 5 U.S. C. When an agency denies a request in whole or in part, it must addi tionally “set forth the names and titles or positions of each person responsible for the denial,” “make a reasonable effort to estimate the volume of any [denied] matter,” and “provide any such estimate to the person making the request.” (F). The DOL has adopted more detailed regulations implementing FOIA and man dating a response in writing. See (a) (requiring written notice of the grant of a FOIA request and a description of the manner in which records will be disclosed); (requiring a “brief statement of the reason or reasons for [a] denial,” as well as written notification if a record “cannot be located or has been destroyed” (italics deleted)). So, too, have other federal agencies. See, e.g., ; ; (Dept. of Agriculture). Such an agency response plainly is “something that gives information,” a “notification,” and an “official or formal statement of facts.” Cite as: 563 U. S. (2011) 9 Opinion of the Court Any records the agency produces along with its written FOIA response are part of that response, “just as if they had been reproduced as an appendix to a printed report.” n. 5. Nothing in the public disclosure bar suggests that a document and its attach ments must be disaggregated and evaluated individually. If an allegation or transaction is disclosed in a record attached to a FOIA response, it is disclosed “in” that FOIA response and, therefore, disclosed “in” a report for the purposes of the public disclosure bar.6 The DOL’s three written FOIA responses to Mrs. Kirk, along with their attached records, are thus within the meaning of the public disclosure bar. Each response was an “official or formal statement” that “[gave] informa tion” and “notif[ied]” Mrs. Kirk of the agency’s resolution of her FOIA request. III A In interpreting a statute, “[o]ur inquiry must cease if the statutory language is unambiguous,” as we have found, and “ ‘the statutory scheme is coherent and consis tent.’ ” (17) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). We are not persuaded by asser tions that it would be anomalous to read the public disclo sure bar to encompass written FOIA responses. 1 The drafting history of the public disclosure bar does not contradict our holding. As originally enacted in 1863, the FCA placed no restriction on the sources from which a qui tam relator could acquire information on which to base a —————— 6 It is irrelevant whether a particular record is itself a report. The attached records do not “becom[e]” but simply are part of a report. 10 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court lawsuit. See Graham 559 U. S., at (slip op., at 12). Accordingly, this Court upheld the recovery of a relator, even though the Government claimed that he had discovered the basis for his lawsuit by reading a federal criminal indictment. See United States ex rel. Marcus v. Hess, In response, Congress amended the statute to preclude such “parasitic” qui tam actions based on “evidence or information in the posses sion of the United States at the time such suit was brought.” 559 U. S., at (slip op., at 12–13) (internal quotation marks omitted). Then, in 1986, Congress re placed the so-called Government knowledge bar with the narrower public disclosure bar. at (slip op., at 13). The Court of Appeals concluded that it would be incon sistent with this drafting history to hold that written FOIA responses are The court reasoned that doing so would “essentially resurrect, in a significant subset of cases, the government possession standard repudiated in 1986.” We disagree with the Court of Appeals’ conclusion. As a threshold matter, “the drafting history of the public disclo sure bar raises more questions than it answers.” Graham at (slip op., at 14). In any event, it is hardly inconsistent with the drafting history to read the public disclosure bar as operating similarly to the Gov ernment knowledge bar in a “subset of cases.” 601 F.3d, at 109. As we have observed, “[r]ather than simply repeal the Government knowledge bar,” the public disclosure bar was “an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits.” 559 U. S., at (slip op., at 13) (emphasis added). If anything, the drafting history supports our holding. The sort of case that Kirk has brought seems to us a clas sic example of the “opportunistic” litigation that the public disclosure bar is designed to discourage. (internal Cite as: 563 U. S. (2011) 11 Opinion of the Court quotation marks omitted). Although Kirk alleges that he became suspicious from his own experiences as a veteran working at Schindler, anyone could have filed the same FOIA requests and then filed the same suit. Similarly, anyone could identify a few regulatory filing and certifica tion requirements, submit FOIA requests until he discov ers a federal contractor who is out of compliance, and potentially reap a windfall in a qui tam action under the FCA. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 20 (“Government contractors are required to submit certifications re lated to everything from how they dispose of hazardous materials to their affirmative action plans” (citing 40 U.S. C. and 29 U.S. C. 2 Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. FOIA requires agencies to release some records even absent a request. See 5 U.S. C. (2). Kirk argues that it would be strange that two relators could obtain copies of the same document but that only the relator who got the document in response to a FOIA re quest would find his case barred. This argument assumes that records released under FOIA, but not attached to a written FOIA response, do not fall within the public disclosure bar. We do not decide that question. But even assuming, as Kirk does, that such records are not covered by the public disclosure bar, we —————— 7 There is no merit to the suggestion that the public disclosure bar is intended only to exclude qui tam suits that “ride the investigatory coattails of the government’s own processes.” Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 25, 26; see Graham 559 U. S., at (slip op., at 19) (rejecting the argument that the public disclosure bar applies only to allegations or transactions that “have landed on the desk of a DOJ lawyer”). 12 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court are not troubled by the different treatment. By its plain terms, the public disclosure bar applies to some meth- ods of public disclosure and not to others. See Graham at (slip op., at 4) (“[T]he FCA’s public disclosure bar deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain channels” ). It would not be anomalous if some methods of FOIA disclosure fell within the scope of the public disclosure bar and some did not. We also are not concerned that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents. This argument assumes that the public disclosure of information in a written FOIA response forever taints that information for purposes of the public disclosure bar. But it may be that a relator who comes by that information from a different source has a legitimate argument that his lawsuit is not “based upon” the initial public disclosure. 31 U.S. C. That question has divided the Courts of Appeals, and we do not resolve it here. See Glaser v. Wound Care Consultants, Inc., (describing the split in authority). It may also be that such a relator qualifies for the “original source” exception.8 In any event, the notion that potential defendants will make FOIA requests to insulate themselves from liability —————— 8 An “original source” is “an individual who has direct and independ ent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” (4)(B). Some Courts of Appeals have narrowly construed the exception to limit “original sources” to those who were the cause of the public disclosure, while others have been more generous. See United States ex rel. (describing a three-way split among the Courts of Appeals). That question is not before us, and we do not decide it. Cite as: 563 U. S. (2011) 13 Opinion of the Court is pure speculation. Cf. Graham 559 U. S., at (slip op., at 19) (rejecting as “strained speculation” an argument that local governments will manipulate the public disclosure bar to escape liability). There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are “” within the meaning of the public disclosure bar. B Even if we accepted these extratextual arguments, Kirk and his amici have provided no principled way to define “report” to exclude FOIA responses without excluding other documents that are indisputably The Gov ernment, for example, struggled to settle on a single defi nition. Compare Brief for United States as Amicus Curiae 19 (“report” must be read to “reflect a focus on situations in which the government is conducting, or has completed, some focused inquiry or analysis concerning the relevant facts”) with (“A FOIA response is not a ‘report’ because the federal agency is not charged with uncov ering the truth of any matter”), and Tr. of Oral Arg. 33 (“[T]he way to think about it is whether or not the agency is engaging in a substantive inquiry into and a sub stantive analysis of information”). It is difficult to see how the Department of Justice’s “Annual Report” of FOIA statistics—something that is indisputably a Government report—would qualify under the latter two definitions. See Dept. of Justice, Freedom of Information Act An- nual Report, Fiscal Year http://www.justice.gov/oip/ annual_report//cover.htm (as visited May 12, 2011, and available in Clerk of Court’s case file); see also Tr. of Oral Arg. 19 (Kirk conceding that the DOJ annual report is a report). And even if the first definition arguably encompasses that report, it would seem also to include FOIA responses, which convey the results of a Govern ment agency’s “focused inquiry.” 14 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court Kirk also was unable to articulate a workable definition. His various proposed definitions suffer the same deficien cies as the Government’s. Compare Brief for Respondent 27 and Tr. of Oral Arg. 17–18 with Brief for Respondent 34–39 and Tr. of Oral Arg. 23. Kirk’s first suggestion would exclude “a lot of things that are labeled report,” at and the second—the definition advanced by the Court of Appeals—would seem to include written FOIA responses, at 28–29. In the end, it appears that the “only argument is that FOIA is a different kind of mis sion”—“a special case.” We see no basis for that distinction and adhere to the principle that undefined statutory terms carry their ordinary meaning. * * * The DOL’s three written FOIA responses in this case, along with the accompanying records produced to Mrs. Kirk, are within the meaning of the public dis closure bar. Whether Kirk’s suit is “based upon allegations or transactions” disclosed in those is a question for the Court of Appeals to resolve on remand. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. (2011) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–188 SCHINDLER ELEVATOR CORPORATION, PETI- TIONER v. UNITED STATES EX REL.

Justice Ginsburg

dissenting

Schindler Elevator Corp. v. United States ex rel. Kirk

2011-05-16

https://www.courtlistener.com/opinion/216735/schindler-elevator-corp-v-united-states-ex-rel-kirk/

https://www.courtlistener.com/api/rest/v3/clusters/216735/

The Veteran Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) requires federal contractors to certify, each year, the number of “qualified covered veter ans” they employ and related information. 38 U.S. C. §4212(d); 48 CFR §§22.1310(b) and 52.222–37(c) (2008). Respondent Daniel A. Kirk, a Vietnam War veteran and a former employee of petitioner Schindler Elevator Corpora tion (Schindler), had cause to believe, based on his own experience and observations, that Schindler failed to meet VEVRAA’s annual information-reporting requirements. To confirm and support his on-the-job observations, Kirk obtained, through several Freedom of Information Act (FOIA) requests to the Department of Labor (DOL), copies of Schindler’s VEVRAA filings. The DOL responses re vealed that, in some years, Schindler filed no information, while in some other years, the corporation filed false in formation. Armed with the DOL’s confirmation of his own impressions, Kirk commenced suit against Schindler under the federal False Claims Act (FCA), 31 U.S. C. §3729 et seq. In a carefully developed, highly persuasive opinion, the Second Circuit explained why a federal agency’s response 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting to a FOIA request should not automatically qualify as a “report, hearing, audit, or investigation” preclusive of a whistleblower’s lawsuit under the public disclosure bar of the FCA, §3730(e)(4). I would affirm the Second Circuit’s judgment as faithful to the text, context, purpose, and history of the FCA’s public disclosure bar. The Court finds no “textual basis” for the Second Cir cuit’s interpretation of the statutory language. Ante, at 6. But the Court of Appeals’ opinion considered text as well as context. Leaving aside the term “report,” the court explained: “All of the other terms in [§3730(e)(4)(A)’s] list of enumerated sources connote the synthesis of informa tion in an investigatory context. ‘[C]riminal, civil, [and] administrative hearings,’ for instance, all entail a government inquiry into a given subject, here into an alleged case of fraud. Similarly, government ‘hear ing[s and] audit[s]’ are processes by which information is compiled with the concerted aim of deepening a government entity’s knowledge of a given subject or, often, determining whether a party is in compliance with applicable law. . . . “In this context, the term ‘report’ most readily bears a narrower meaning than simply ‘something that gives information.’ Rather, it connotes the compila tion or analysis of information with the aim of synthe sizing that information in order to serve some end of the government, as in a ‘hearing’ or ‘audit.’ It does not naturally extend to cover the mechanistic produc tion of documents in response to a FOIA request made by a member of the public.” 601 F.3d 94, 107 (2010) (citations omitted). Focusing on the FOIA requests in this case, the Court of Appeals observed that DOL’s responses did not “synthe size the documents or their contents with the aim of itself Cite as: 563 U. S. ____ (2011) 3 GINSBURG, J., dissenting gleaning any insight or information, as . . . it necessarily would in conducting a ‘hearing’ or ‘audit.’ ” Id., at 108. Far from “compil[ing] or synthesiz[ing] information to serve its own investigative or analytic ends,” id., at 111, DOL merely assembled and duplicated records, or noted the absence of records. Contrary to the Court’s assertion, moreover, the Second Circuit was mindful of the “error we reversed in Graham County [Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___ (2010)],” ante, at 6; the Court of Appeals used the noscitur a sociis canon only “as a guide in sifting through the common understandings of ‘report’ and ‘investigation’ to discover their intended meaning within the FCA.” 601 F.3d, at 108, n. 6. The court explained: “We . . . have not used the canon to impose commonal ity on terms that ‘do not share any . . . core of mean ing,’ Graham County, [559 U. S., at ___, n. 7 (slip op., at 7, n. 7)]. To the contrary, the terms ‘hearing,’ ‘re port,’ ‘audit,’ and ‘investigation’ all refer to processes of uncovering and analyzing information or to the products of those processes. Our interpretation fo cuses on their shared ‘core of meaning.’ ” Ibid. The Court faults the Court of Appeals for not consider ing §3730(e)(4)(A)’s “reference to ‘news media,’ ” ante, at 7, suggesting that this omission overlooked Graham County’s observation that “all of the sources [of public disclosure] listed in §3730(e)(4)(A) provide interpretive guidance.” 559 U. S., at ___ (slip op., at 8). Schindler did not make this argument below. In any event, the point would have been unavailing. Disclosures “of allegations or transac tions . . . from the news media,” §3730(e)(4)(A) (emphasis added), share a common core of meaning with disclosures in other sources that involve “processes of uncovering and analyzing information or . . . the products of those proc 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting esses.” 601 F.3d, at 108, n. 6. The Court regards the case Kirk has brought as “a classic example of the ‘opportunistic’ litigation that the public disclosure bar is designed to discourage.” Ante, at 10. But as the Second Circuit observed: “[T]he facts of this case belie the assertion that indi viduals who are not original sources and who obtain information through FOIA requests will generally not be persons with firsthand knowledge of fraud but rather will be opportunistic litigators. The facts also illustrate how an overbroad reading of the jurisdic tional bar would prevent an individual with inde pendent but partial knowledge of a possible fraud would be barred from bringing a lawsuit that is nei ther parasitic nor frivolous.” 601 F.3d, at 110 (cita tion omitted). By ranking DOL’s ministerial response an “administra tive . . . report,” akin to a “Government Accounting Office report,” §3730(e)(4)(A) (footnote omitted), the Court weak ens the force of the FCA as a weapon against fraud on the part of Government contractors. Why should a whis tleblower attentive to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) be barred from court if he seeks corroboration for his allegations, as Kirk did, through a FOIA request simply for copies of a contrac tor’s filings? After today’s decision, which severely limits whistleblowers’ ability to substantiate their allegations before commencing suit, that question is worthy of Con gress’ attention

The Veteran Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) requires federal contractors to certify, each year, the number of “qualified covered veter ans” they employ and related information. 38 U.S. C. (b) and 52.222–37(c) (2008). Respondent Daniel A. Kirk, a Vietnam War veteran and a former employee of petitioner Schindler Elevator Corpora tion (Schindler), had cause to believe, based on his own experience and observations, that Schindler failed to meet VEVRAA’s annual information-reporting requirements. To confirm and support his on-the-job observations, Kirk obtained, through several Freedom of Information Act (FOIA) requests to the Department of Labor (DOL), copies of Schindler’s VEVRAA filings. The DOL responses re vealed that, in some years, Schindler filed no information, while in some other years, the corporation filed false in formation. Armed with the DOL’s confirmation of his own impressions, Kirk commenced suit against Schindler under the federal False Claims Act (FCA), 31 U.S. C. et seq. In a carefully developed, highly persuasive opinion, the Second Circuit explained why a federal agency’s response 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting to a FOIA request should not automatically qualify as a “report, hearing, audit, or investigation” preclusive of a whistleblower’s lawsuit under the public disclosure bar of the FCA, I would affirm the Second Circuit’s judgment as faithful to the text, context, purpose, and history of the FCA’s public disclosure bar. The Court finds no “textual basis” for the Second Cir cuit’s interpretation of the statutory language. Ante, at 6. But the Court of Appeals’ opinion considered text as well as context. Leaving aside the term “report,” the court explained: “All of the other terms in list of enumerated sources connote the synthesis of informa tion in an investigatory context. ‘[C]riminal, civil, [and] administrative hearings,’ for instance, all entail a government inquiry into a given subject, here into an alleged case of fraud. Similarly, government ‘hear ing[s and] audit[s]’ are processes by which information is compiled with the concerted aim of deepening a government entity’s knowledge of a given subject or, often, determining whether a party is in compliance with applicable law. “In this context, the term ‘report’ most readily bears a narrower meaning than simply ‘something that gives information.’ Rather, it connotes the compila tion or analysis of information with the aim of synthe sizing that information in order to serve some end of the government, as in a ‘hearing’ or ‘audit.’ It does not naturally extend to cover the mechanistic produc tion of documents in response to a FOIA request made by a member of the public.” (citations omitted). Focusing on the FOIA requests in this case, the Court of Appeals observed that DOL’s responses did not “synthe size the documents or their contents with the aim of itself Cite as: 563 U. S. (2011) 3 GINSBURG, J., dissenting gleaning any insight or information, as it necessarily would in conducting a ‘hearing’ or ‘audit.’ ” Far from “compil[ing] or synthesiz[ing] information to serve its own investigative or analytic ends,” DOL merely assembled and duplicated records, or noted the absence of records. Contrary to the Court’s assertion, moreover, the Second Circuit was mindful of the “error we reversed in Graham County [Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ],” ante, at 6; the Court of Appeals used the noscitur a sociis canon only “as a guide in sifting through the common understandings of ‘report’ and ‘investigation’ to discover their intended meaning within the FCA.” 601 F.3d, n. 6. The court explained: “We have not used the canon to impose commonal ity on terms that ‘do not share any core of mean ing,’ Graham County, [559 U. S., at n. 7 (slip op., at 7, n. 7)]. To the contrary, the terms ‘hearing,’ ‘re port,’ ‘audit,’ and ‘investigation’ all refer to processes of uncovering and analyzing information or to the products of those processes. Our interpretation fo cuses on their shared ‘core of meaning.’ ” The Court faults the Court of Appeals for not consider ing “reference to ‘news media,’ ” ante, at 7, suggesting that this omission overlooked Graham County’s observation that “all of the sources [of public disclosure] listed in provide interpretive guidance.” 559 U. S., at (slip op., at 8). Schindler did not make this argument below. In any event, the point would have been unavailing. Disclosures “of allegations or transac tions from the news media,” (emphasis added), share a common core of meaning with disclosures in other sources that involve “processes of uncovering and analyzing information or the products of those proc 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting esses.” 601 F.3d, n. 6. The Court regards the case Kirk has brought as “a classic example of the ‘opportunistic’ litigation that the public disclosure bar is designed to discourage.” Ante, at 10. But as the Second Circuit observed: “[T]he facts of this case belie the assertion that indi viduals who are not original sources and who obtain information through FOIA requests will generally not be persons with firsthand knowledge of fraud but rather will be opportunistic litigators. The facts also illustrate how an overbroad reading of the jurisdic tional bar would prevent an individual with inde pendent but partial knowledge of a possible fraud would be barred from bringing a lawsuit that is nei ther parasitic nor frivolous.” (cita tion omitted). By ranking DOL’s ministerial response an “administra tive report,” akin to a “Government Accounting Office report,” (footnote omitted), the Court weak ens the force of the FCA as a weapon against fraud on the part of Government contractors. Why should a whis tleblower attentive to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) be barred from court if he seeks corroboration for his allegations, as Kirk did, through a FOIA request simply for copies of a contrac tor’s filings? After today’s decision, which severely limits whistleblowers’ ability to substantiate their allegations before commencing suit, that question is worthy of Con gress’ attention

Justice Kennedy

majority

INS v. Aguirre-Aguirre

1999-05-03

https://www.courtlistener.com/opinion/118284/ins-v-aguirre-aguirre/

https://www.courtlistener.com/api/rest/v3/clusters/118284/

1998-049

We granted certiorari to consider the analysis employed by the Court of Appeals in setting aside a determination of the Board of Immigration Appeals (BIA). The BIA ruled that respondent, a native and citizen of Guatemala, was not entitled to withholding of deportation based on his expressed fear of persecution for earlier political activities in Guatemala. The issue in the case is not whether the persecution is likely to occur, but whether, even assuming it is, respondent is ineligible for withholding because he "committed a serious nonpolitical crime" before his entry into the United States. 8 U.S. C. § 1253(h)(2)(C). The beginning point for the BIA's analysis was its determination that respondent, to protest certain governmental policies in Guatemala, had burned buses, assaulted passengers, and vandalized and destroyed property in private shops, after forcing customers out. These actions, the BIA concluded, were serious nonpolitical crimes. In reaching this conclusion, it relied on a statutory interpretation adopted in one of its earlier decisions, Matter of McMullen, 19 I. & N. Dec. 90 (BIA 1984), aff'd, 788 F.2d 591 (CA9 1986). On appeal, the Court of Appeals for the Ninth Circuit concluded the BIA had applied an incorrect interpretation of the serious nonpolitical crime provision, and it remanded for further proceedings. In the Court of Appeals' view, as we understand it, the BIA erred by misconstruing the controlling statute and by employing an analytical framework insufficient to take account of the Court of Appeals' own precedent on this subject. According to the court, the BIA erred in failing to consider certain factors, including "the political necessity and success of Aguirre's methods"; whether his acts were grossly out of proportion to their objective or were atrocious; and the persecution respondent might suffer upon return to Guatemala. 121 F.3d 521, 524 (1997). *419 We granted certiorari. 525 U.S. 808 (1998). We disagree with the Court of Appeals and address each of the three specific areas in which it found the BIA's analysis deficient. We reverse the judgment of the court and remand for further proceedings. I The statutory provision for withholding of deportation that is applicable here provides that "[t]he Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S. C. § 1253(h)(1). The provision was added to the Immigration and Nationality Act (INA), 66 Stat. 166, 8 U.S. C. § 1101 et seq. (1994 ed. and Supp. III), by the Refugee Act of 1980 (Refugee Act), Pub. L. 96-212, 94 Stat. 102. See INS v. Stevic, 467 U.S. 407, 414-416, 421— 422 (1984). As a general rule, withholding is mandatory if an alien "establish[es] that it is more likely than not that [he] would be subject to persecution on one of the specified grounds," id., at 429-430, but the statute has some specific exceptions. As is relevant here, withholding does not apply, and deportation to the place of risk is authorized, "if the Attorney General determines that" "there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." 8 U.S. C. § 1253(h)(2)(C). Under the immigration laws, withholding is distinct from asylum, although the two forms of relief serve similar purposes. Whereas withholding only bars deporting an alien to a particular country or countries, a grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year. See INS v. Cardoza- *420 Fonseca, 480 U.S. 421, 428-429, n. 6 (1987). In addition, whereas withholding is mandatory unless the Attorney General determines one of the exceptions applies, the decision whether asylum should be granted to an eligible alien is committed to the Attorney General's discretion. Ibid. As a consequence, under the law then in force, respondent was able to seek asylum irrespective of his eligibility for withholding. As an incidental point, we note that in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009-546, Congress revised the withholding and asylum provisions. The withholding provisions are now codified at 8 U.S. C. § 1231(b)(3) (1994 ed., Supp. III), and the asylum provisions at § 1158. Under current law, as enacted by IIRIRA, the Attorney General may not grant asylum if she determines "there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." § 1158(b)(2)(A)(iii). The parties agree IIRIRA does not govern respondent's case. See IIRIRA, Tit. III—A, §§ 309(a), (c), 110 Stat. 3009-625; IIRIRA, Div. C, Tit. VI—A, § 604(c), 110 Stat. 3009-692. Prior to IIRIRA, in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, Tit. IV—B, § 413(f), 110 Stat. 1269, Congress granted the Attorney General discretion to withhold deportation when necessary to ensure compliance with the international treaty upon which the Refugee Act was based, see infra, at 427-429. This provision was made applicable to "applications filed before, on, or after" April 24, 1996, "if final action has not been taken on them before such date." AEDPA § 413(g), 110 Stat. 1269-1270. The BIA's decision constituted final action when rendered on March 5, 1996, 8 CFR § 243.1 (1995), App. to Pet. for Cert. 12a, so AEDPA § 413(f) was not applicable to respondent's case. *421 We turn to the matter before us. In 1994, respondent was charged with deportability by the Immigration and Naturalization Service (INS) for illegal entry into the United States. Respondent conceded deportability but applied for asylum and withholding. At a hearing before an Immigration Judge respondent testified, through an interpreter, that he had been politically active in Guatemala from 1989 to 1992 with a student group called Estudeante Syndicado (ES) and with the National Central Union political party. App. 19-20, 36-37. He testified about threats due to his political activity. The threats, he believed, were from different quarters, including the Guatemalan Government, right-wing government support groups, and left-wing guerillas. App. to Pet. for Cert. 23a. Respondent described activities he and other ES members engaged in to protest various government policies and actions, including the high cost of bus fares and the government's failure to investigate the disappearance or murder of students and others. App. 20-21; App. to Pet. for Cert. 22a—23a. For purposes of our review, we assume that the amount of bus fares is an important political and social issue in Guatemala. We are advised that bus fare represents a significant portion of many Guatemalans' annual living expense, and a rise in fares may impose substantial economic hardship. See Brief for Massachusetts Law Reform Institute et al. as Amicus Curiae 18-19. In addition, government involvement with fare increases, and other aspects of the transportation system, has been a focus of political discontent in that country. Id., at 16-21. According to the official hearing record, respondent testified that he and his fellow members would "strike" by "burning buses, breaking windows or just attacking the police, police cars." App. 20. Respondent estimated that he participated in setting about 10 buses on fire, after dousing them with gasoline. Id., at 46. Before setting fire to the buses, he and his group would order passengers to leave *422 the bus. Passengers who refused were stoned, hit with sticks, or bound with ropes. Id., at 46-47. In addition, respondent testified that he and his group "would break the windows of. . . stores," "t[ake] the people out of the stores that were there," and "throw everything on the floor." Id., at 48. The Immigration Judge granted respondent's applications for withholding of deportation and for asylum, finding a likelihood of persecution for his political opinions and activities if he was returned to Guatemala. App. to Pet. for Cert. 31a—32a. The INS appealed to the BIA. Respondent did not file a brief with the BIA, although his request for an extension of time to do so was granted. Brief for Petitioner 10, n. 6; Record 13-15. The BIA sustained the INS's appeal from this decision, vacated the Immigration Judge's order, and ordered respondent deported. App. to Pet. for Cert. 18a. With respect to withholding, the BIA did not decide whether respondent had established the requisite risk of persecution because it determined that, in any event, he had committed a serious nonpolitical crime within the meaning of § 1253(h)(2)(C). In addressing the definition of a serious nonpolitical crime, the BIA applied the interpretation it first set forth in Matter of McMullen, 19 I. & N. Dec., at 97-98: "In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature." In the instant case, the BIA found, "the criminal nature of the respondent's acts outweigh their political nature." App. to Pet. for Cert. 18a. The BIA acknowledged respondent's dissatisfaction with the Guatemalan Government's "seeming inaction in the investigation of student deaths and in its raising of student bus fares." Ibid. It said, however: "The ire of the ES manifested itself disproportionately in the destruction of property and *423 assaults on civilians. Although the ES had a political agenda, those goals were outweighed by their criminal strategy of strikes . . . ." Ibid. The BIA further concluded respondent should not be granted discretionary asylum relief in light of "the nature of his acts against innocent Guatemalans." Id., at 17a. A divided panel of the Court of Appeals granted respondent's petition for review and remanded to the BIA. 121 F.3d 521 (CA9 1997). According to the majority, the BIA's analysis of the serious nonpolitical crime exception was legally deficient in three respects. First, the BIA should have "consider[ed] the persecution that Aguirre might suffer if returned to Guatemala" and "balance[d] his admitted offenses against the danger to him of death." Id., at 524. Second, it should have "considered whether the acts committed were grossly out of proportion to the[ir] alleged objective" and were "of an atrocious nature," especially with reference to Ninth Circuit precedent in this area. Ibid. (internal quotation marks and citation omitted). Third, the BIA "should have considered the political necessity and success of Aguirre's methods." Id., at 523-524. Judge Kleinfeld dissented. In his view, "[t]he BIA correctly identified the legal question, whether `the criminal nature of the respondent's acts outweigh their political nature.' " Id., at 524 (quoting McMullen v. INS, 788 F.2d 591, 592 (CA9 1986)). Given the violent nature of respondent's acts, and the fact the acts were in large part directed against innocent civilians, the BIA "reasonably conclude[d] that [his] crimes were disproportionate to his political objectives." 121 F.3d, at 525. II As an initial matter, the Court of Appeals expressed no disagreement with the Attorney General or the BIA that the phrase "serious nonpolitical crime" in § 1253(h)(2)(C) should be applied by weighing "the political nature" of an act against its "common-law" or "criminal" character. See Mat- *424 ter of McMullen, supra, at 97-98; App. to Pet. for Cert. 18a; Deportation Proceedings for Doherty, 13 Op. Off. Legal Counsel 1, 23 (1989) (an act "`should be considered a serious nonpolitical crime if the act is disproportionate to the objective' ") (quoting McMullen v. INS, supra, at 595), rev'd on other grounds, Doherty v. INS, 908 F.2d 1108 (CA2 1990), rev'd, 502 U.S. 314 (1992). Nor does respondent take issue with this basic inquiry. The Court of Appeals did conclude, however, that the BIA must supplement this weighing test by examining additional factors. In the course of its analysis, the Court of Appeals failed to accord the required level of deference to the interpretation of the serious nonpolitical crime exception adopted by the Attorney General and BIA. Because the Court of Appeals confronted questions implicating "an agency's construction of the statute which it administers," the court should have applied the principles of deference described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Thus, the court should have asked whether "the statute is silent or ambiguous with respect to the specific issue" before it; if so, "the question for the court [was] whether the agency's answer is based on a permissible construction of the statute." Id., at 843. See also INS v. Cardoza-Fonseca, 480 U. S., at 448-449. It is clear that principles of Chevron deference are applicable to this statutory scheme. The INA provides that "[t]he Attorney General shall be charged with the administration and enforcement" of the statute and that the "determination and ruling by the Attorney General with respect to all questions of law shall be controlling." 8 U.S. C. § 1103(a)(1) (1994 ed., Supp. III). Section 1253(h), moreover, in express terms confers decisionmaking authority on the Attorney General, making an alien's entitlement to withholding turn on the Attorney General's "determin[ation]" whether the statutory conditions for withholding have been *425 met. 8 U.S. C. §§ 1253(h)(1), (2). In addition, we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials "exercise especially sensitive political functions that implicate questions of foreign relations." INS v. Abudu, 485 U.S. 94, 110 (1988). A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions. The Attorney General, while retaining ultimate authority, has vested the BIA with power to exercise the "discretion and authority conferred upon the Attorney General by law" in the course of "considering and determining cases before it." 8 CFR § 3.1(d)(1) (1998). Based on this allocation of authority, we recognized in Cardoza-Fonseca, supra, that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms "concrete meaning through a process of case-by-case adjudication" (though we ultimately concluded that the agency's interpretation in that case was not sustainable). 480 U.S., at 448-449. In the case before us, by failing to follow Chevron principles in its review of the BIA, the Court of Appeals erred. A The Court of Appeals' error is clearest with respect to its holding that the BIA was required to balance respondent's criminal acts against the risk of persecution he would face if returned to Guatemala. In Matter of RodriguezCoto, 19 I. & N. Dec. 208, 209-210 (1985), the BIA "reject[ed] any interpretation of the phras[e] . . . `serious nonpolitical crime' in [§ 1253(h)(2)(C)] which would vary with the nature of evidence of persecution." The text and structure of § 1253(h) are consistent with this conclusion. Indeed, its *426 words suggest that the BIA's reading of the statute, not the interpretation adopted by the Court of Appeals, is the more appropriate one. As a matter of plain language, it is not obvious that an already-completed crime is somehow rendered less serious by considering the further circumstance that the alien may be subject to persecution if returned to his home country. See ibid. ("We find that the modifie[r] . . . `serious' . .. relate[s] only to the nature of the crime itself"). It is important, too, as Rodriguez-Coto points out, id., at 209-210, that for aliens to be eligible for withholding at all, the statute requires a finding that their "life or freedom would be threatened in [the country to which deportation is sought] on account of their race, religion, nationality, membership in a particular social group, or political opinion," i. e., that the alien is at risk of persecution in that country. 8 U.S. C. § 1253(h)(1). By its terms, the statute thus requires independent consideration of the risk of persecution facing the alien before granting withholding. It is reasonable to decide, as the BIA has done, that this factor can be considered on its own and not also as a factor in determining whether the crime itself is a serious, nonpolitical crime. Though the BIA in the instant case declined to make findings respecting the risk of persecution facing respondent, App. to Pet. for Cert. 18a, this was because it determined respondent was barred from withholding under the serious nonpolitical crime exception. Ibid. The BIA, in effect, found respondent ineligible for withholding even on the assumption he could establish a threat of persecution. This approach is consistent with the language and purposes of the statute. In reaching the contrary conclusion and ruling that the risk of persecution should be balanced against the alien's criminal acts, the Court of Appeals relied on a passage from the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) (U. N. Handbook). *427 We agree the U. N. Handbook provides some guidance in construing the provisions added to the INA by the Refugee Act. INS v. Cardoza-Fonseca, 480 U. S., at 438-439, and n. 22. As we explained in Cardoza-Fonseca, "one of Congress' primary purposes" in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. I. A. S. No. 6577 (1968), to which the United States acceded in 1968. 480 U.S., at 436-437. The Protocol incorporates by reference Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951), reprinted in 19 U. S. T., at 6259, 6264-6276. The basic withholding provision of § 1253(h)(1) parallels Article 33, which provides that "[n]o Contracting State shall expel or return (`refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." Id., at 6276. The Convention, in a part incorporated by the Protocol, also places certain limits on the availability of this form of relief; as pertinent here, the Convention states that its provisions "shall not apply to any person with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee." Convention Art. I(F)(b), 19 U. S. T., at 6263-6264. Paragraph 156 of the U. N. Handbook, the portion relied upon by the Court of Appeals, states that in applying the serious nonpolitical crime provision of Convention Art. I(F)(b), "it is . . . necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared . . . ." The U. N. Handbook may be a useful interpretative aid, but it is not binding on the Attorney General, the BIA, or United States courts. "Indeed, the Handbook itself disclaims *428 such force, explaining that `the determination of refugee status under the 1951 Convention and the 1967 Protocol. . . is incumbent upon the Contracting State in whose territory the refugee finds himself.' " INS v. Cardoza-Fonseca, 480 U. S., at 439, n. 22 (quoting U. N. Handbook ¶ (ii), at 1). See also 480 U.S., at 439, n. 22 ("We do not suggest, of course, that the explanation in the U. N. Handbook has the force of law or in any way binds the INS . . ."). For the reasons given, supra, at 425-426, we think the BIA's determination that § 1253(h)(2)(C) requires no additional balancing of the risk of persecution rests on a fair and permissible reading of the statute. See also T. v. Secretary of State for the Home Dept., 2 All E. R. 865, 882 (H. L. 1996) (Lord Mustill) ("[T]he crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned"). B Also relying on the U. N. Handbook, the Court of Appeals held that the BIA "should have considered whether the acts committed were `grossly out of proportion to the alleged objective.' . . . The political nature of the offenses would be `more difficult to accept' if they involved `acts of an atrocious nature.' " 121 F.3d, at 524 (quoting U. N. Handbook ¶ 152, at 36). The court further suggested that the BIA should have considered prior Circuit case law that "cast[s] light on what under the law are acts of [an] atrocious nature." 121 F.3d, at 524. Citing its own opinion affirming the BIA's decision in Matter of McMullen, see McMullen v. INS, 788 F.2d 591 (CA9 1986), the Court of Appeals stated that "[a] comparison of what the McMullen court found atrocious with the acts committed by Aguirre suggests a startling degree of difference." 121 F.3d, at 524. It reasoned that while McMullen had involved "indiscriminate bombing, murder, torture, [and] the maiming of innocent civilians," respondent's "only acts against innocent Guatemalans were *429 the disruption of some stores and his use of methods that we would all find objectionable if practiced upon us on a bus in the United States but which fall far short of the kind of atrocities attributed to McMullen and his associates." 121 F.3d, at 524. We do not understand the BIA to dispute that these considerations—gross disproportionality, atrociousness, and comparisons with previous decided cases—may be important in applying the serious nonpolitical crime exception. In fact, by the terms of the BIA's test (which is similar to the language quoted by the Court of Appeals from the U. N. Handbook), gross disproportion and atrociousness are relevant in the determination. According to the BIA: "In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature." Matter of McMullen, 19 I. & N. Dec., at 97-98. See also Deportation Proceedings for Doherty, 13 Op. Off. Legal Counsel, at 22-26, rev'd on other grounds, Doherty v. INS, 908 F.2d 1108 (CA2 1990), rev'd, 502 U.S. 314 (1992). The BIA's formulation does not purport to provide a comprehensive definition of the § 1253(h)(2)(C) exception, and the full elaboration of that standard should await further cases, consistent with the instruction our legal system always takes from considering discrete factual circumstances over time. See also 13 Op. Off. Legal Counsel, at 23 ("[T]he statute recognizes that cases involving alleged political crimes arise in myriad circumstances, and that what constitutes a `serious nonpolitical crime' is not susceptible of rigid definition"). Our decision takes into account that the BIA's test identifies a general standard (whether the political aspect of an offense outweighs its common-law character) and then provides two more specific inquiries that may be used in applying the rule: whether there is a gross disproportion between means and *430 ends, and whether atrocious acts are involved. Under this approach, atrocious acts provide a clear indication that an alien's offense is a serious nonpolitical crime. In the BIA's judgment, where an alien has sought to advance his agenda by atrocious means, the political aspect of his offense may not fairly be said to predominate over its criminal character. Commission of the acts, therefore, will result in a denial of withholding. The criminal element of an offense may outweigh its political aspect even if none of the acts are deemed atrocious, however. For this reason, the BIA need not give express consideration to the atrociousness of the alien's acts in every case before determining that an alien has committed a serious nonpolitical crime. The BIA's approach is consistent with the statute, which does not equate every serious nonpolitical crime with atrocious acts. Cf. 8 U.S. C. § 1253(h)(2)(B) (establishing an exception to withholding for a dangerous alien who has been convicted of a "particularly serious crime," defined to include an "aggravated felony"). Nor is there any reason to find this equivalence under the statute. In common usage, the word "atrocious" suggests a deed more culpable and aggravated than a serious one. See Webster's Third New International Dictionary 139 (1971) (defining "atrocious" as, "marked by or given to extreme wickedness . . . [or] extreme brutality or cruelty"; "outrageous: violating the bounds of common decency"; "marked by extreme violence: savagely fierce: murderous"; "utterly revolting: abominable"). As a practical matter, if atrocious acts were deemed a necessary element of all serious nonpolitical crimes, the Attorney General would have severe restrictions upon her power to deport aliens who had engaged in serious, though not atrocious, forms of criminal activity. These restrictions cannot be discerned in the text of § 1253(h), and the Attorney General and BIA are not bound to impose the restrictions on themselves. *431 In the instant case, the BIA determined that "the criminal nature of the respondent's acts outweigh their political nature" because his group's political dissatisfaction "manifested itself disproportionately in the destruction of property and assaults on civilians" and its political goals "were outweighed by [the group's] criminal strategy of strikes." App. to Pet. for Cert. 18a. The BIA concluded respondent had committed serious nonpolitical crimes by applying the general standard established in its prior decision, so it had no need to consider whether his acts might also have been atrocious. The Court of Appeals erred in holding otherwise. We further reject the Court of Appeals' suggestion that reversal was required due to the BIA's failure to compare the facts of this case with those of McMullen. The court thought doing so was necessary because of the guidance provided by McMullen on the meaning of atrociousness. In light of our holding that the BIA was not required expressly to consider the atrociousness of respondent's acts, the BIA's silence on this point does not provide a ground for reversal. C The third reason given by the Court of Appeals for reversing the BIA was what the court deemed to be the BIA's failure to consider respondent's "offenses in relation to [his] declared political objectives" and to consider "the political necessity and success of [his] methods." 121 F.3d, at 523-524. As we have discussed, supra, at 422-423 and this page, the BIA did address the relationship between respondent's political goals and his criminal acts, concluding that the violence and destructiveness of the crimes, and their impact on civilians, were disproportionate to his acknowledged political objectives. To the extent the court believed the BIA was required to give more express consideration to the "necessity" and "success" of respondent's actions, it erred. *432 It is true the Attorney General has suggested that a crime will not be deemed political unless there is a "`close and direct causal link between the crime committed and its alleged political purpose and object.' " Deportation Proceedings for Doherty, 13 Op. Off. Legal Counsel, at 23 (quoting McMullen v. INS, 788 F.2d 591 (CA9 1986)). The BIA's analysis, which was quite brief in all events, did not explore this causal link beyond noting the general disproportion between respondent's acts and his political objectives. Whatever independent relevance a causal link inquiry might have in another case, in this case the BIA determined respondent's acts were not political based on the lack of proportion with his objectives. It was not required to do more. Even in a case with a clear causal connection, a lack of proportion between means and ends may still render a crime nonpolitical. Moreover, it was respondent who bore the burden of proving entitlement to withholding, see 8 CFR § 208.16(c)(3) (1995) ("If the evidence indicates that one or more of the grounds for denial of withholding of deportation . . . apply, the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply"). He failed to submit a brief on the causal link or any other issue to the BIA, and the decision of the Immigration Judge does not address the point. In these circumstances, the rather cursory nature of the BIA's discussion does not warrant reversal. III Finally, respondent contends the record of his testimony before the Immigration Judge contains errors. He testified in Spanish and now contends there are errors in translation and transcription. Brief for Respondent 11-22. Respondent advanced this argument for the first time in his Brief in Opposition to Certiorari in this Court, see Brief in Opposition 1-5, having failed to raise it before either the BIA or the Court of Appeals. We decline to address the argument at this late stage. *433 Respondent has filed a motion in the BIA for a new hearing in light of the alleged errors. App. to Brief for Respondent 1a—6a. Should the BIA determine modification of the record is necessary, it can determine whether further consideration of the withholding issue is warranted. * * * The reasons given by the Court of Appeals for reversing the BIA do not withstand scrutiny. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

We granted certiorari to consider the analysis employed by the Court of Appeals in setting aside a determination of the Board of Immigration Appeals (BIA) The BIA ruled that respondent, a native and citizen of Guatemala, was not entitled to withholding of deportation based on his expressed fear of persecution for earlier political activities in Guatemala The issue in the case is not whether the persecution is likely to occur, but whether, even assuming it is, respondent is ineligible for withholding because he "committed a serious nonpolitical crime" before his entry into the United States 8 US C 1253(h)(2)(C) The beginning point for the BIA's analysis was its determination that respondent, to protest certain governmental policies in Guatemala, had burned buses, assaulted passengers, and vandalized and destroyed property in private shops, after forcing customers out These actions, the BIA concluded, were serious nonpolitical crimes In reaching this conclusion, it relied on a statutory interpretation adopted in one of its earlier decisions, Matter of aff'd, On appeal, the Court of Appeals for the Ninth Circuit concluded the BIA had applied an incorrect interpretation of the serious nonpolitical crime provision, and it remanded for further proceedings In the Court of Appeals' view, as we understand it, the BIA erred by misconstruing the controlling statute and by employing an analytical framework insufficient to take account of the Court of Appeals' own precedent on this subject According to the court, the BIA erred in failing to consider certain factors, including "the political necessity and success of Aguirre's methods"; whether his acts were grossly out of proportion to their objective or were atrocious; and the persecution respondent might suffer upon return to Guatemala *419 We granted certiorari We disagree with the Court of Appeals and address each of the three specific areas in which it found the BIA's analysis deficient We reverse the judgment of the court and remand for further proceedings I The statutory provision for withholding of deportation that is applicable here provides that "[t]he Attorney General shall not deport or return any alien to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion" 8 US C 1253(h)(1) The provision was added to the Immigration and Nationality Act (INA), 8 US C 1 et seq (1994 ed and Supp III), by the Refugee Act of 1980 (Refugee Act), Stat 102 See As a general rule, withholding is mandatory if an alien "establish[es] that it is more likely than not that [he] would be subject to persecution on one of the specified grounds," but the statute has some specific exceptions As is relevant here, withholding does not apply, and deportation to the place of risk is authorized, "if the Attorney General determines that" "there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States" 8 US C 1253(h)(2)(C) Under the immigration laws, withholding is distinct from asylum, although the two forms of relief serve similar purposes Whereas withholding only bars deporting an alien to a particular country or countries, a grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year See In addition, whereas withholding is mandatory unless the Attorney General determines one of the exceptions applies, the decision whether asylum should be granted to an eligible alien is committed to the Attorney General's discretion As a consequence, under the law then in force, respondent was able to seek asylum irrespective of his eligibility for withholding As an incidental point, we note that in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Stat 3009-546, Congress revised the withholding and asylum provisions The withholding provisions are now codified at 8 US C 1231(b)(3) (1994 ed, Supp III), and the asylum provisions at 1158 Under current law, as enacted by IIRIRA, the Attorney General may not grant asylum if she determines "there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States" 1158(b)(2)(A)(iii) The parties agree IIRIRA does not govern respondent's case See IIRIRA, Tit III—A, 309(a), (c), -625; IIRIRA, Div C, Tit VI—A, 604(c), -692 Prior to IIRIRA, in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Tit IV—B, 413(f), Congress granted the Attorney General discretion to withhold deportation when necessary to ensure compliance with the international treaty upon which the Refugee Act was based, see infra, at 427-429 This provision was made applicable to "applications filed before, on, or after" April 24, 1996, "if final action has not been taken on them before such date" AEDPA 413(g), -1270 The BIA's decision constituted final action when rendered on March 5, 1996, 8 CFR 2431 (1995), App to Pet for Cert 12a, so AEDPA 413(f) was not applicable to respondent's case *421 We turn to the matter before us In 1994, respondent was charged with deportability by the Immigration and Naturalization Service () for illegal entry into the United States Respondent conceded deportability but applied for asylum and withholding At a hearing before an Immigration Judge respondent testified, through an interpreter, that he had been politically active in Guatemala from 1989 to 1992 with a student group called Estudeante Syndicado (ES) and with the National Central Union political party App 19-20, 36-37 He testified about threats due to his political activity The threats, he believed, were from different quarters, including the Guatemalan Government, right-wing government support groups, and left-wing guerillas App to Pet for Cert 23a Respondent described activities he and other ES members engaged in to protest various government policies and actions, including the high cost of bus fares and the government's failure to investigate the disappearance or murder of students and others App 20-21; App to Pet for Cert 22a—23a For purposes of our review, we assume that the amount of bus fares is an important political and social issue in Guatemala We are advised that bus fare represents a significant portion of many Guatemalans' annual living expense, and a rise in fares may impose substantial economic hardship See Brief for Massachusetts Law Reform Institute et al as Amicus Curiae 18-19 In addition, government involvement with fare increases, and other aspects of the transportation system, has been a focus of political discontent in that country According to the official hearing record, respondent testified that he and his fellow members would "strike" by "burning buses, breaking windows or just attacking the police, police cars" App 20 Respondent estimated that he participated in setting about 10 buses on fire, after dousing them with gasoline Before setting fire to the buses, he and his group would order passengers to leave *422 the bus Passengers who refused were stoned, hit with sticks, or bound with ropes -47 In addition, respondent testified that he and his group "would break the windows of stores," "t[ake] the people out of the stores that were there," and "throw everything on the floor" The Immigration Judge granted respondent's applications for withholding of deportation and for asylum, finding a likelihood of persecution for his political opinions and activities if he was returned to Guatemala App to Pet for Cert 31a—32a The appealed to the BIA Respondent did not file a brief with the BIA, although his request for an extension of time to do so was granted Brief for Petitioner 10, n 6; Record 13-15 The BIA sustained the 's appeal from this decision, vacated the Immigration Judge's order, and ordered respondent deported App to Pet for Cert 18a With respect to withholding, the BIA did not decide whether respondent had established the requisite risk of persecution because it determined that, in any event, he had committed a serious nonpolitical crime within the meaning of 1253(h)(2)(C) In addressing the definition of a serious nonpolitical crime, the BIA applied the interpretation it first set forth in Matter of -98: "In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature" In the instant case, the BIA found, "the criminal nature of the respondent's acts outweigh their political nature" App to Pet for Cert 18a The BIA acknowledged respondent's dissatisfaction with the Guatemalan Government's "seeming inaction in the investigation of student deaths and in its raising of student bus fares" It said, however: "The ire of the ES manifested itself disproportionately in the destruction of property and *423 assaults on civilians Although the ES had a political agenda, those goals were outweighed by their criminal strategy of strikes " The BIA further concluded respondent should not be granted discretionary asylum relief in light of "the nature of his acts against innocent Guatemalans" at 17a A divided panel of the Court of Appeals granted respondent's petition for review and remanded to the BIA According to the majority, the BIA's analysis of the serious nonpolitical crime exception was legally deficient in three respects First, the BIA should have "consider[ed] the persecution that Aguirre might suffer if returned to Guatemala" and "balance[d] his admitted offenses against the danger to him of death" at Second, it should have "considered whether the acts committed were grossly out of proportion to the[ir] alleged objective" and were "of an atrocious nature," especially with reference to Ninth Circuit precedent in this area Third, the BIA "should have considered the political necessity and success of Aguirre's methods" at 523- Judge Kleinfeld dissented In his view, "[t]he BIA correctly identified the legal question, whether `the criminal nature of the respondent's acts outweigh their political nature' " at ) Given the violent nature of respondent's acts, and the fact the acts were in large part directed against innocent civilians, the BIA "reasonably conclude[d] that [his] crimes were disproportionate to his political objectives" II As an initial matter, the Court of Appeals expressed no disagreement with the Attorney General or the BIA that the phrase "serious nonpolitical crime" in 1253(h)(2)(C) should be applied by weighing "the political nature" of an act against its "common-law" or "criminal" character See Mat- *424 ter of ; App to Pet for Cert 18a; Deportation Proceedings for Doherty, 13 Op Off Legal Counsel 1, 23 (1989) (an act "`should be considered a serious nonpolitical crime if the act is disproportionate to the objective' ") (quoting v ), rev'd on other grounds, Doherty v rev'd, Nor does respondent take issue with this basic inquiry The Court of Appeals did conclude, however, that the BIA must supplement this weighing test by examining additional factors In the course of its analysis, the Court of Appeals failed to accord the required level of deference to the interpretation of the serious nonpolitical crime exception adopted by the Attorney General and BIA Because the Court of Appeals confronted questions implicating "an agency's construction of the statute which it administers," the court should have applied the principles of deference described in Chevron U S A Thus, the court should have asked whether "the statute is silent or ambiguous with respect to the specific issue" before it; if so, "the question for the court [was] whether the agency's answer is based on a permissible construction of the statute" See v -449 It is clear that principles of Chevron deference are applicable to this statutory scheme The INA provides that "[t]he Attorney General shall be charged with the administration and enforcement" of the statute and that the "determination and ruling by the Attorney General with respect to all questions of law shall be controlling" 8 US C 3(a)(1) (1994 ed, Supp III) Section 1253(h), moreover, in express terms confers decisionmaking authority on the Attorney General, making an alien's entitlement to withholding turn on the Attorney General's "determin[ation]" whether the statutory conditions for withholding have been *425 met 8 US C 1253(h)(1), (2) In addition, we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials "exercise especially sensitive political functions that implicate questions of foreign relations" v Abudu, A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions The Attorney General, while retaining ultimate authority, has vested the BIA with power to exercise the "discretion and authority conferred upon the Attorney General by law" in the course of "considering and determining cases before it" 8 CFR 31(d)(1) Based on this allocation of authority, we recognized in that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms "concrete meaning through a process of case-by-case adjudication" (though we ultimately concluded that the agency's interpretation in that case was not sustainable) -449 In the case before us, by failing to follow Chevron principles in its review of the BIA, the Court of Appeals erred A The Court of Appeals' error is clearest with respect to its holding that the BIA was required to balance respondent's criminal acts against the risk of persecution he would face if returned to Guatemala In Matter of RodriguezCoto, 19 I & N Dec 208, the BIA "reject[ed] any interpretation of the phras[e] `serious nonpolitical crime' in [ 1253(h)(2)(C)] which would vary with the nature of evidence of persecution" The text and structure of 1253(h) are consistent with this conclusion Indeed, its *426 words suggest that the BIA's reading of the statute, not the interpretation adopted by the Court of Appeals, is the more appropriate one As a matter of plain language, it is not obvious that an already-completed crime is somehow rendered less serious by considering the further circumstance that the alien may be subject to persecution if returned to his home country See ibid ("We find that the modifie[r] `serious' relate[s] only to the nature of the crime itself") It is important, too, as Rodriguez-Coto points out, at that for aliens to be eligible for withholding at all, the statute requires a finding that their "life or freedom would be threatened in [the country to which deportation is sought] on account of their race, religion, nationality, membership in a particular social group, or political opinion," i e, that the alien is at risk of persecution in that country 8 US C 1253(h)(1) By its terms, the statute thus requires independent consideration of the risk of persecution facing the alien before granting withholding It is reasonable to decide, as the BIA has done, that this factor can be considered on its own and not as a factor in determining whether the crime itself is a serious, nonpolitical crime Though the BIA in the instant case declined to make findings respecting the risk of persecution facing respondent, App to Pet for Cert 18a, this was because it determined respondent was barred from withholding under the serious nonpolitical crime exception The BIA, in effect, found respondent ineligible for withholding even on the assumption he could establish a threat of persecution This approach is consistent with the language and purposes of the statute In reaching the contrary conclusion and ruling that the risk of persecution should be balanced against the alien's criminal acts, the Court of Appeals relied on a passage from the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) (U N Handbook) *427 We agree the U N Handbook provides some guidance in construing the provisions added to the INA by the Refugee Act v 480 U S, at 438-439, and n 22 As we explained in "one of Congress' primary purposes" in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan 31, 1967, 19 U S T 6224, T I A S No 6577 (1968), to which the United States acceded in 1968 480 US, at 436-437 The Protocol incorporates by reference Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U N T S 150 (July 28, 1951), reprinted in 19 U S T, at 6259, 6264-6276 The basic withholding provision of 1253(h)(1) parallels Article 33, which provides that "[n]o Contracting State shall expel or return (`refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion" The Convention, in a part incorporated by the Protocol, places certain limits on the availability of this form of relief; as pertinent here, the Convention states that its provisions "shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee" Convention Art I(F)(b), 19 U S T, at 6263-6264 Paragraph 156 of the U N Handbook, the portion relied upon by the Court of Appeals, states that in applying the serious nonpolitical crime provision of Convention Art I(F)(b), "it is necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared " The U N Handbook may be a useful interpretative aid, but it is not binding on the Attorney General, the BIA, or United States courts "Indeed, the Handbook itself disclaims *428 such force, explaining that `the determination of refugee status under the 1951 Convention and the 1967 Protocol is incumbent upon the Contracting State in whose territory the refugee finds himself' " v 480 U S, at 439, n 22 (quoting U N Handbook ¶ (ii), at 1) See 480 US, at 439, n 22 ("We do not suggest, of course, that the explanation in the U N Handbook has the force of law or in any way binds the ") For the reasons we think the BIA's determination that 1253(h)(2)(C) requires no additional balancing of the risk of persecution rests on a fair and permissible reading of the statute See T v Secretary of State for the Home Dept, 2 All E R 865, 882 (H L 1996) (Lord Mustill) ("[T]he crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned") B Also relying on the U N Handbook, the Court of Appeals held that the BIA "should have considered whether the acts committed were `grossly out of proportion to the alleged objective' The political nature of the offenses would be `more difficult to accept' if they involved `acts of an atrocious nature' " 121 F3d, at (quoting U N Handbook ¶ 152, at 36) The court further suggested that the BIA should have considered prior Circuit case law that "cast[s] light on what under the law are acts of [an] atrocious nature" 121 F3d, at Citing its own opinion affirming the BIA's decision in Matter of see v the Court of Appeals stated that "[a] comparison of what the court found atrocious with the acts committed by Aguirre suggests a startling degree of difference" 121 F3d, at It reasoned that while had involved "indiscriminate bombing, murder, torture, [and] the maiming of innocent civilians," respondent's "only acts against innocent Guatemalans were *429 the disruption of some stores and his use of methods that we would all find objectionable if practiced upon us on a bus in the United States but which fall far short of the kind of atrocities attributed to and his associates" 121 F3d, at We do not understand the BIA to dispute that these considerations—gross disproportionality, atrociousness, and comparisons with previous decided cases—may be important in applying the serious nonpolitical crime exception In fact, by the terms of the BIA's test (which is similar to the language quoted by the Court of Appeals from the U N Handbook), gross disproportion and atrociousness are relevant in the determination According to the BIA: "In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature" Matter of -98 See Deportation Proceedings for Doherty, 13 Op Off Legal Counsel, at 22-26, rev'd on other grounds, Doherty v rev'd, The BIA's formulation does not purport to provide a comprehensive definition of the 1253(h)(2)(C) exception, and the full elaboration of that standard should await further cases, consistent with the instruction our legal system always takes from considering discrete factual circumstances over time See 13 Op Off Legal Counsel, at 23 ("[T]he statute recognizes that cases involving alleged political crimes arise in myriad circumstances, and that what constitutes a `serious nonpolitical crime' is not susceptible of rigid definition") Our decision takes into account that the BIA's test identifies a general standard (whether the political aspect of an offense outweighs its common-law character) and then provides two more specific inquiries that may be used in applying the rule: whether there is a gross disproportion between means and *430 ends, and whether atrocious acts are involved Under this approach, atrocious acts provide a clear indication that an alien's offense is a serious nonpolitical crime In the BIA's judgment, where an alien has sought to advance his agenda by atrocious means, the political aspect of his offense may not fairly be said to predominate over its criminal character Commission of the acts, therefore, will result in a denial of withholding The criminal element of an offense may outweigh its political aspect even if none of the acts are deemed atrocious, however For this reason, the BIA need not give express consideration to the atrociousness of the alien's acts in every case before determining that an alien has committed a serious nonpolitical crime The BIA's approach is consistent with the statute, which does not equate every serious nonpolitical crime with atrocious acts Cf 8 US C 1253(h)(2)(B) (establishing an exception to withholding for a dangerous alien who has been convicted of a "particularly serious crime," defined to include an "aggravated felony") Nor is there any reason to find this equivalence under the statute In common usage, the word "atrocious" suggests a deed more culpable and aggravated than a serious one See Webster's Third New International Dictionary 139 (1971) (defining "atrocious" as, "marked by or to extreme wickedness [or] extreme brutality or cruelty"; "outrageous: violating the bounds of common decency"; "marked by extreme violence: savagely fierce: murderous"; "utterly revolting: abominable") As a practical matter, if atrocious acts were deemed a necessary element of all serious nonpolitical crimes, the Attorney General would have severe restrictions upon her power to deport aliens who had engaged in serious, though not atrocious, forms of criminal activity These restrictions cannot be discerned in the text of 1253(h), and the Attorney General and BIA are not bound to impose the restrictions on themselves *431 In the instant case, the BIA determined that "the criminal nature of the respondent's acts outweigh their political nature" because his group's political dissatisfaction "manifested itself disproportionately in the destruction of property and assaults on civilians" and its political goals "were outweighed by [the group's] criminal strategy of strikes" App to Pet for Cert 18a The BIA concluded respondent had committed serious nonpolitical crimes by applying the general standard established in its prior decision, so it had no need to consider whether his acts might have been atrocious The Court of Appeals erred in holding otherwise We further reject the Court of Appeals' suggestion that reversal was required due to the BIA's failure to compare the facts of this case with those of The court thought doing so was necessary because of the guidance provided by on the meaning of atrociousness In light of our holding that the BIA was not required expressly to consider the atrociousness of respondent's acts, the BIA's silence on this point does not provide a ground for reversal C The third reason by the Court of Appeals for reversing the BIA was what the court deemed to be the BIA's failure to consider respondent's "offenses in relation to [his] declared political objectives" and to consider "the political necessity and success of [his] methods" 121 F3d, at 523- As we have at 422-423 and this page, the BIA did address the relationship between respondent's political goals and his criminal acts, concluding that the violence and destructiveness of the crimes, and their impact on civilians, were disproportionate to his acknowledged political objectives To the extent the court believed the BIA was required to give more express consideration to the "necessity" and "success" of respondent's actions, it erred *432 It is true the Attorney General has suggested that a crime will not be deemed political unless there is a "`close and direct causal link between the crime committed and its alleged political purpose and object' " Deportation Proceedings for Doherty, 13 Op Off Legal Counsel, at 23 ) The BIA's analysis, which was quite brief in all events, did not explore this causal link beyond noting the general disproportion between respondent's acts and his political objectives Whatever independent relevance a causal link inquiry might have in another case, in this case the BIA determined respondent's acts were not political based on the lack of proportion with his objectives It was not required to do more Even in a case with a clear causal connection, a lack of proportion between means and ends may still render a crime nonpolitical Moreover, it was respondent who bore the burden of proving entitlement to withholding, see 8 CFR 20816(c)(3) (1995) ("If the evidence indicates that one or more of the grounds for denial of withholding of deportation apply, the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply") He failed to submit a brief on the causal link or any other issue to the BIA, and the decision of the Immigration Judge does not address the point In these circumstances, the rather cursory nature of the BIA's discussion does not warrant reversal III Finally, respondent contends the record of his testimony before the Immigration Judge contains errors He testified in Spanish and now contends there are errors in translation and transcription Brief for Respondent 11-22 Respondent advanced this argument for the first time in his Brief in Opposition to Certiorari in this Court, see Brief in Opposition 1-5, having failed to raise it before either the BIA or the Court of Appeals We decline to address the argument at this late stage *433 Respondent has filed a motion in the BIA for a new hearing in light of the alleged errors App to Brief for Respondent 1a—6a Should the BIA determine modification of the record is necessary, it can determine whether further consideration of the withholding issue is warranted * * * The reasons by the Court of Appeals for reversing the BIA do not withstand scrutiny We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion It is so ordered