511bv$spin 07-15-97 11:53:00
UNITED STATES
REPORTS
511
OCT. TERM 1993
511bv$titl 07-15-97 11:48:49
UNITED STATES REPORTS
VOLUME 511
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1993
March 22 Through June 7, 1994
FRANK D. WAGNER
reporter of decisions
WASHINGTON : 1997
Printed on Uncoated Permanent Printing Paper
For sale by the U. S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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J USTICES
of the
SU PREM E COU RT
during the time of these reports
WILLIAM H. REHNQUIST, Chief Justice.
HARRY A. BLACKMUN, Associate Justice.*
JOHN PAUL STEVENS, Associate Justice.
SANDRA DAY O'CONNOR, Associate Justice.
ANTONIN SCALIA, Associate Justice.
ANTHONY M. KENNEDY, Associate Justice.
DAVID H. SOUTER, Associate Justice.
CLARENCE THOMAS, Associate Justice.
RUTH BADER GINSBURG, Associate Justice.
retired
WARREN E. BURGER, Chief Justice.
LEWIS F. POWELL, Jr., Associate Justice.
WILLIAM J. BRENNAN, Jr., Associate Justice.
BYRON R. WHITE, Associate Justice.
officers of the court
JANET RENO, Attorney General.
DREW S. DAYS III, Solicitor General.
WILLIAM K. SUTER, Clerk.
FRANK D. WAGNER, Reporter of Decisions.
ALFRED WONG, Marshal.
SHELLEY L. DOWLING, Librarian.
*For note, see p. iv.
iii
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NOTE
*Justice Blackmun announced his retirement on April 6, 1994, effec-
tive "as of the date the Court `rises' for the summer or as of the date of
the qualification of my successor, whichever is later, but, in any event, not
subsequent to September 25, 1994."
iv
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SUPREME COURT OF THE UNITED STATES
Allotment of Justices
It is ordered that the following allotment be made of the Chief
Justice and Associate Justices of this Court among the circuits,
pursuant to Title 28, United States Code, Section 42, and that such
allotment be entered of record, effective October 1, 1993, viz.:
For the District of Columbia Circuit, William H. Rehnquist,
Chief Justice.
For the First Circuit, David H. Souter, Associate Justice.
For the Second Circuit, Clarence Thomas, Associate Justice.
For the Third Circuit, David H. Souter, Associate Justice.
For the Fourth Circuit, William H. Rehnquist, Chief Justice.
For the Fifth Circuit, Antonin Scalia, Associate Justice.
For the Sixth Circuit, John Paul Stevens, Associate Justice.
For the Seventh Circuit, John Paul Stevens, Associate Justice.
For the Eighth Circuit, Harry A. Blackmun, Associate Justice.
For the Ninth Circuit, Sandra Day O'Connor, Associate
Justice.
For the Tenth Circuit, Ruth Bader Ginsburg, Associate
Justice.
For the Eleventh Circuit, Anthony M. Kennedy, Associate
Justice.
For the Federal Circuit, William H. Rehnquist, Chief Justice.
October 1, 1993.
(For next previous allotment, and modifications, see 502 U. S.,
p. vi, and 509 U. S., p. v.)
v
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TABLE OF CASES REPORTED
Note: All undesignated references herein to the United States Code
are to the 1988 edition.
Cases reported before page 1001 are those decided with opinions of the
Court or decisions per curiam. Cases reported on page 1001 et seq. are
those in which orders were entered.
Page
Abanatha v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Abbeville General Hospital; Ramsey v. . . . . . . . . . . . . . . . . . . . . . 1032
Abbott; Duffey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Abidekun v. Commissioner of Social Service of N. Y. C. . . . . . . . . 1064
Abshire v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Acosta v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Adamo v. State Farm Lloyds Co. . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Adams, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Adams v. Evatt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Adams v. United States . . . . . . . . . . . . . . . . . . . . . 1011,1021,1109,1118
Adepegba v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Adesanya v. Immigration and Naturalization Service . . . . . . . . . . 1101
Administrator, Eastern Pa. Psychiatric Institute; Duvall v. . . . . . 1074
Advanced Micro-Devices, Inc.; Constant v. . . . . . . . . . . . . . . . . . . 1084
Adventist Health System/Sunbelt, Inc.; Peterson v. . . . . . . . . . . . 1068
Advocates for Life, Inc. v. Lovejoy Specialty Hospital, Inc. . . . . . 1070
Aeroservice Aviation Center, Inc.; Diaz del Castillo v. . . . . . . . . . 1082
Aetna Life Ins. Co.; Spain v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Agajanian, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Aguilar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Aguirre v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Ahamefule v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
A. J. Industries, Inc. v. Hedges . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Akaka; Loa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Akaka; Price v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Akech v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Alabama; Cade v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Alabama; Carroll v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Alabama; Coral v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Alabama; Ford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
vii
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viii TABLE OF CASES REPORTED
Page
Alabama; Hallford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Alabama; Jenkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Alabama; Jordan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Alabama; Streeter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Alabama; Tarver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Alabama v. Watkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
Alabama; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Alabama ex rel. T. B.; J. E. B. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Alameda-Contra Costa Transit Dist.; Sanford v. . . . . . . . . . . . 1007,1102
Albemarle-Charlottesville Joint Security Complex; Greene v. . . . 1089
Alexander v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Alexander v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Alexander Securities, Inc. v. Mendez . . . . . . . . . . . . . . . . . . . . . . 1150
Algemeen Burgerlijk Pensioenfonds; Ejay Travel, Inc. v. . . . . . . . 1107
Allen v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Allen v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Allen v. Lockley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Allen v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Allied-Bruce Terminix Cos. v. Dobson . . . . . . . . . . . . . . . . . . . . . 1140
Allied Van Lines, Inc. v. Oberg . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Alls v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Allstate Ins. Co. v. Louisiana Ins. Guaranty Assn. . . . . . . . . . . . . 1142
Allum v. Second Judicial District Court of Nev. . . . . . . . . . . . . . . 1109
Almodovar v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Alston v. Swisher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Alter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Alvarca Alvarez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Alvarez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Alvarez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1134
Alvarez-Sanchez; United States v. . . . . . . . . . . . . . . . . . . . . . . . . 350
Ambrose, Wilson, Grimm & Durand; Krug v. . . . . . . . . . . . . . . . . 1108
AmClyde; McDermott, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Amerada Hess Corp. v. Owens-Corning Fiberglas Corp. . . . . . . . 1051
American Airlines; Wells v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
American Airlines, Inc. v. Wolens . . . . . . . . . . . . . . . . . . . . . . . . . 1017
American Bank of Conn.; Ivimey v. . . . . . . . . . . . . . . . . . . . . . . . 1064
American Bureau of Shipping; Sundance Cruises Corp. v. . . . . . . 1018
American Community Mut. Ins. Co.; Tregoning v. . . . . . . . . . . . . 1082
American Cyanamid Co.; North American Vaccine, Inc. v. . . . . . . 1069
American Medical International, Inc.; Harris v. . . . . . . . . . . . . . . 1068
American Medical Systems, Inc.; Medical Engineering Corp. v. 1070
American Telephone & Telegraph Co.; Collins Licensing v. . . . . . 1137
Amerman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Andersen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
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TABLE OF CASES REPORTED ix
Page
Anderson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364,1029
Anderson v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064,1065
Anderson v. Humana, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Anderson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Andriola v. Antinoro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Andrisani v. Superior Court of Cal., Appellate Dept., L. A. County 1064
Andrus v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Angelone; McDonough v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Anglero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Angulo-Lopez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Anolik v. Sunrise Bank of Cal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Anonsen v. Donahue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Anthony v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Antinoro; Andriola v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Araujo Juarez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Arave v. Beam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Arbelaez v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Arce-Ramos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Arias v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Arizona; Bible v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Arizona; Comer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Arizona v. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Arizona; Hess v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Arizona; Schackart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Arizona; Tripati v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Arizona; Villegas Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Arizona; West v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Arkansas; Cleveland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Arkansas; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Arkansas; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Arkansas; Prince v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Arkansas Dept. of Human Services; Lensing v. . . . . . . . . . . . . . . 1037
Arkansas Dept. of Pollution Control & Ecology; Ark. Peace Ctr. v. 1017
Arkansas Peace Ctr. v. Ark. Dept. of Pollution Control & Ecology 1017
ARMCO, Inc.; Aus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Armenta-Lopez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Armesto v. Weidner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Armontrout; McConnell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Arnett v. Kellogg Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Arney v. Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Arnold v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Arthur v. Bell Atlantic Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Artuz; Hutchinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Arvonio; Clemons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
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Page
Arvonio; Maxwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Asam v. Harwood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Asgrow Seed Co. v. DeeBees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Asgrow Seed Co. v. Winterboer . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Askew v. Tucker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Asrar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Associated Industries of Mo. v. Lohman . . . . . . . . . . . . . . . . . . . . 641
Atamantyk v. Department of Defense . . . . . . . . . . . . . . . . . . . . . 1113
Atkinson v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Attorney General; O'Murchu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Attorney General of Fla.; Graham v. . . . . . . . . . . . . . . . . . . . . . . 1128
Attorney General of Me.; Police v. . . . . . . . . . . . . . . . . . . . . . . . . 1069
Attorney General of N. Y. v. Moody . . . . . . . . . . . . . . . . . . . . . . . 1084
Attorney General of R. I.; D'Amario v. . . . . . . . . . . . . . . . . . . . . . 1111
Attorney General of S. C.; Pressley v. . . . . . . . . . . . . . . . . . . . . . 1110
Attwood v. Chiles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Atwater v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Aubry; Livadas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016,1028
Auburn; Tri-State Rubbish, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1106
Aus v. ARMCO, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Austin v. United Parcel Service . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Autery v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Authement v. Citgo Petroleum Corp. . . . . . . . . . . . . . . . . . . . . . . 1019
Avakian v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Avenenti; Cornellier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Avery v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Ayrs v. Prudential-LMI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Azen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140
B.; J. E. B. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Bachtel v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Backstrom v. Iowa District Court for Jones County . . . . . . . . . . . 1042
Bacon v. Department of Air Force . . . . . . . . . . . . . . . . . . . . . . . . 1043
Badger Coal Co.; Shockey v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1153
Bagley v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Bailey, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Bailey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Bain v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Baker v. Lopatin, Miller, et al., Attorneys at Law, P. C. . . . . . . . . 1056
Baker v. Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Baker v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1153
Baker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Balark v. Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Ball v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Ballantine v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
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Page
Balog v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Baltimore Gas & Electric Co.; Hicks v. . . . . . . . . . . . . . . . . . . . . . 1102
Baltimore Municipal Golf Corp.; Clark v. . . . . . . . . . . . . . . . . . . . 1107
Bank of America N. T. & S. A.; McMahon v. . . . . . . . . . . . . . . . . . 1022
Banks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135
Bara v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Barajas; Northrop Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Barber v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1041,1087,1094
Bardson v. Cross . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Barfield v. Secretary, N. C. Dept. of Crime Control . . . . . . . . . . . 1109
Barker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Barmore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Barnes v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Barnes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Barnett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Barnum v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Barquet v. Maass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Barrero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135
Barreto v. McClellan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Barth v. Duffy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bartlett; Qutb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Bartlett; Richards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074,1112
Bartlett v. Vance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040,1102
Bascomb; Seattle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Bauman; Colorado Dept. of Health v. . . . . . . . . . . . . . . . . . . . . . . 1004
Baxter v. Superior Court of Cal., Los Angeles County . . . . . . . . . 1056
Beam; Arave v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Beard v. West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Beaumont, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Beavers v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Bedford v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Beecham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Behringer v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Bellah; Shimizu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Bell Atlantic Corp.; Arthur v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Belmonte Romero v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Beltran-Lopez v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Benavides v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Bengali v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Benitez, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Bennett, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Bennett v. Borg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Bennett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Benson v. Hargett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
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Benson v. Stepanik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Benson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Berchard; Ternes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Berg v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Berg v. Dentists Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Berhanu; Metzger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Berk; DiDomenico v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Berks County v. Murtagh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Bernabe v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Bernard v. Connick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Berry v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Bertrand; John E. Graham & Sons v. . . . . . . . . . . . . . . . . . . . . . . 1070
Beson v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Beuke v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Beyer; Shakur v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
BFP v. Resolution Trust Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . 531
Bianco v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Bible v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Biddings v. Brigano . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Bieregu v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Billings v. Tavaglione . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Bishop Estate; Eline v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Bituminous Casualty Corp.; Tonka Corp. v. . . . . . . . . . . . . . . . . . 1083
Black v. Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Blackston v. Skarbnik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
Blankenship; Carpenter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Blazak; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Bledsoe, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104
Blow v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Blue Cross & Blue Shield of Va.; Madonia v. . . . . . . . . . . . . . . . . 1019
Boalbey v. Hawes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Boalbey v. Rock Island County . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Board of Bar Examiners of Del.; Ziegler v. . . . . . . . . . . . . . . . . . . 1084
Board of County Comm'rs of Osage County; Sharp's Pawn Shop v. 1031
Board of County Comm'rs of Osage County; Winters v. . . . . . . . . 1031
Board of Equalization of Chatham County; York Rites Bodies of
Freemasonry of Savannah v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Board of Governors, FRS; CBC, Inc. v. . . . . . . . . . . . . . . . . . . . . 1142
Board of Governors of Registered Dentists of Okla. v. Jacobs . . . 1082
Board of Trustees for State Colleges & Univs. of La.; Paddio v. . 1085
Board of Trustees, Univ. of Ala.; Wu v. . . . . . . . . . . . . . . . . . . . . 1033
Boca Grande Club, Inc. v. Florida Power & Light Co. . . . . . . . . . 222
Boggs v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Boise; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
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Bonner Mall Partnership; U. S. Bancorp Mortgage Co. v. . . . . 1002,1140
Bonnette; Odeco Oil & Gas Co., Drilling Div. v. . . . . . . . . . . . . . . 1004
Boothe v. Stanton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009,1153
Borbon v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Borg; Bennett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Borg; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Borromeo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Boston; Polyak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Boutte; Sellick Equipment, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1018
Bowles; Good v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Boyd v. Goolsby . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Boyd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Brackett v. Peters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Bradford v. Bradford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Bradley Univ.; Whitehead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Bradshaw v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Bragg v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Branham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Brannigan; Wehringer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Branton v. Federal Communications Comm'n . . . . . . . . . . . . . . . . 1052
Brawner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Bray Terminals, Inc. v. New York State Dept. of Tax. and Fin. . . 1143
Breckenridge v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Breeden; McReady v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Breest v. Brodeur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Brennan; Farmer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825
Brennan; Holly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047,1152
Brenner; Suda v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Brigano; Biddings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Brinson v. Grayson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Britt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Brizendine; Cotter & Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Brodeur; Breest v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Brothers v. Brothers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Broussard v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Brower v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Brown v. Boise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Brown v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Brown; De Maio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Brown v. Gardner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Brown v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Brown; Jeffress v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Brown; McNaron v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Brown v. Norris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
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Brown; Ticor Title Ins. Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Brown v. Two Unknown Marshals . . . . . . . . . . . . . . . . . . . . . . . . 1020
Brown v. United States . . . . . . . . . . 1025,1034,1043,1057,1114,1146,1148
Brown-Brunson v. Hunter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Brown Group, Inc.; Hicks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Browning-Ferris, Inc.; White v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Brown Shoe Co.; Hicks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Broyde v. Gotham Tower, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Brunwasser v. Steiner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Bryant; North Carolina v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Bryant v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
B. S. v. District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Bseirani v. Mahshie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
B&T Towing; Flynn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1102
Buchanan v. South Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . 1074,1153
Bucksa v. Federal Bureau of Investigation . . . . . . . . . . . . . . . . . . 1041
Budman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Buell v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Buford Evans & Sons; Polyak v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Bulger v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Buracker v. Wilt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Burchill v. Kish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006,1101
Burciaga v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Bureau of National Affairs, Inc.; Conboy v. . . . . . . . . . . . . . . . . . 1076
Burgenmeyer v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Burke v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Burnett v. Fairley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Burrell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Burton; Streeter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054,1132
Burton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Busby v. New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Bush v. Commonwealth Edison Co. . . . . . . . . . . . . . . . . . . . . . . . 1071
Butt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Butterworth; Graham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Byers v. Montana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Byers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135
Bynum v. State Farm Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Byrd v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Byrd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Cabrera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
C & A Carbone, Inc. v. Clarkstown . . . . . . . . . . . . . . . . . . . . . . . 383
Cade v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Cadle Co. II, Inc.; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Cain v. Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
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Cairo, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104
Calderon v. Clair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Calderon v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Calderon; Kukes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Caldwell v. Kroner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Califano v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
California; Aguirre v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
California; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
California; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
California; Alvarca Alvarez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
California; Araujo Juarez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
California; Bagley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
California; Belmonte Romero v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
California; Berg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
California; Bernabe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
California; Berry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
California; Boggs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
California; Borbon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
California; Breckenridge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
California; Calvert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
California; Casio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
California; Castillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
California; Castro Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
California; Chase v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
California; Clark v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
California; Consiglio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
California; Contreras v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
California; Cornejo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
California; Culver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
California; Cummings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
California; Cummins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
California; Davilla v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
California; Directo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
California; Dober v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
California; Douglas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
California; Dunlap v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
California; Dyer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
California; Favors v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
California; Figueroa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
California; Flack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
California; Flores v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
California; Garceau v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
California; Garcia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
California; Gay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
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California; Gear v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
California; Gipson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
California; Gomez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
California; Grajeda v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
California; Hankins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
California; Hanzy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
California; Hilarie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
California; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
California; Hillburn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
California; Hoskins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
California; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013,1088
California; Kibbe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
California; King v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
California; Laan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
California; Lofton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
California; Lopez Gonzalez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
California; Lucero v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
California; Marshall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
California; Martinez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
California; McClendon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
California; McMurray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
California; Medina v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
California; Meeks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
California; Mena v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
California; Minh Trong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
California; Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
California; Moerman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
California; Morin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
California; Ortega v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
California v. Parr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
California v. Pimentel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
California; Pitts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
California; Ponce de Leon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
California; Pugh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
California; Ray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
California; Reed v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
California; Reynolds v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
California; Rivera v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
California; Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
California; Roldan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
California; Ross v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
California; Sandoval v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,1101
California; Silva v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
California; Simon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
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California; Snider v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
California; Spencer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
California; Stansbury v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
California; Stoddard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
California; Tenner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
California; Terrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
California; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
California; Tizeno v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
California; Tooze v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
California; Trippet v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
California v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . 1005
California; Vailuu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
California; Von Schiget v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
California; Warren v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
California; Washington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
California; Weaver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
California; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022,1055
California; Witt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
California; Wolfe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
California; Woodruff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
California; Wormuth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
California; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
California; Yeamons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
California; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
California Dept. of Transportation; Karim-Panahi v. . . . . . . . . . . 1048
California Workers' Compensation Appeals Bd.; Spaletta v. . . . . . 1006
Calvento v. Garza, Jure & King . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Calvert v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Camoscio v. Hall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Campbell; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Campbell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Campbell v. Wood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118,1119
Campos-Rozo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc. . . . 1135
Capital Area Right to Life, Inc.; Downtown Frankfort, Inc. v. . . . 1126
Cardenas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Cardwell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051
Carlson; Magnolia Court Apartments, Inc. v. . . . . . . . . . . . . . . . . 1084
Carmichael; Singleton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Carpenter, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Carpenter v. Blankenship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Carpenter; Police v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Carpenter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043,1135
Carrier v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
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Carroll v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Carter, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Carter; Lipovsky v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Carter v. Rone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Carter; Sowders v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Carter v. Vaughn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Casados v. Denver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Cascade General, Inc. v. National Labor Relations Bd. . . . . . . . . 1052
Casey; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Casio v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Cassel; Tucker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Cassell v. Lancaster Mennonite Conference . . . . . . . . . . . . . . . . . 1085
Castaneda v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Castillo v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Castro, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104
Castro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Castro Lopez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Catlett v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Causey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Cazares-Barragan v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1115
CBC, Inc. v. Board of Governors, FRS . . . . . . . . . . . . . . . . . . . . . 1142
Cedarapids, Inc.; Mendenhall v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Cellswitch L. P. v. Federal Communications Comm'n . . . . . . . . . . 1004
Celotex Corp. v. Edwards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Central Bank of Denver v. First Interstate Bank of Denver . . . . 164
Central Community Hospital; Jurcev v. . . . . . . . . . . . . . . . . . . . . 1081
Chahine v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Chambers v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Chamness v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . . . . . . . 1127
Chandler v. Dallas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Chang v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Chapman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028,1125
Chase v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Chen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Chertoff; Gaydos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Chesapeake & Potomac Telephone Co. of Va.; Copeland v. . . . . . . 1064
Cheslerean v. Immigration and Naturalization Service . . . . . . . . . 1004
Chesney v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Chevron Corp. Long-Term Disability Plan; Marte v. . . . . . . . . . . 1032
Chevron, U. S. A., Inc.; Radford v. . . . . . . . . . . . . . . . . . . . . . . . . 1012
Chiasson; Zapata Gulf Marine Corp. v. . . . . . . . . . . . . . . . . . . . . . 1029
Chicago; Balark v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Chicago v. Environmental Defense Fund . . . . . . . . . . . . . . . . . . . 328
Chicago; Evans v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
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Chicago; Graff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Chicago v. Great Lakes Dredge & Dock Co. . . . . . . . . . . . . . . . . . 1140
Chicago; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Chicago Truck Drivers Pension Fund v. Slotky . . . . . . . . . . . . . . 1018
Children's Memorial Hospital; Young In Hong v. . . . . . . . . . . . . . 1005
Childs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Chiles; Attwood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Chiles; Stewart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Chilton v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Choi v. Parmet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Choudhary v. Vermont Dept. of Public Service . . . . . . . . . . . . . . . 1133
Christeson v. Groose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Christiansen v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Chrysler Motors Corp.; Snelling v. . . . . . . . . . . . . . . . . . . . . . . . . 1079
Chu v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Churchill; Waters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 661
Cigna Securities, Inc.; Dodds v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Cinel v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Ciprano v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Citgo Petroleum Corp.; Authement v. . . . . . . . . . . . . . . . . . . . . . . 1019
City. See name of city.
Civil Service Comm'n; Sweeney v. . . . . . . . . . . . . . . . . . . . . . 1007,1102
Clair; Calderon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Clark v. Baltimore Municipal Golf Corp. . . . . . . . . . . . . . . . . . . . . 1107
Clark v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Clark; Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Clark v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Clark County; Mosley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Clarkstown; C & A Carbone, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . 383
Clay v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Clay v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Clay; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Clemons v. Arvonio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Clemons v. Morton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Cleveland v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Clewis v. Krivanek . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Clifton v. Vaughn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Clinton v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Cloutier, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
Cobb v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Cobb County v. Harvey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Coble v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Cochran v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Cockrell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093,1148
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Code v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Cody; Cotner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Cody; Gassaway v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Cody; Hawkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Cole v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Colello v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135
Collins; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064,1065
Collins; Beavers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Collins; Dillard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Collins; Harper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Collins; Hinkle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Collins; Hozdish v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Collins; Kennedy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Collins; Kuykendall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Collins; Mosley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Collins; Nethery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Collins; Reich v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Collins; Rougeau v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Collins; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Collins; Stribling v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Collins v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Collins v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086,1095
Collins; Webb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Collins Licensing v. American Telephone & Telegraph Co. . . . . . . 1137
Colorado; Black v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Colorado; Esnault v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Colorado v. LaFrankie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Colorado v. Leftwich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Colorado Dept. of Health v. Bauman . . . . . . . . . . . . . . . . . . . . . . . 1004
Colorado Territorial Correctional Facility; Makin v. . . . . . . . . . . . 1131
Columbia Presbyterian Medical Center; Lawrence v. . . . . . . . . . . 1070
Columbia Resource Co. v. Environmental Quality Comm'n of Ore. 93
Colvin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Comer v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Comici, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104
Commissioner; Haley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Commissioner; Larner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Commissioner; Purificato v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Commissioner; Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Commissioner, New York State Dept. of Tax. and Fin.; Henry v. 1126
Commissioner of Ins. of La.; Third National Bank of Nashville v. 1082
Commissioner of Internal Revenue. See Commissioner.
Commissioner of Social Service of N. Y. C.; Abidekun v. . . . . . . . 1064
Commissioner of Transportation of Conn.; Westchester County v. 1107
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Committee of Receivers for A. W. Galadari; Drexel Burnham Lam-
bert Group Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Committee of Receivers for A. W. Galadari; Refco, Inc. v. . . . . . . 1069
Commonwealth. See also name of Commonwealth.
Commonwealth Edison Co.; Bush v. . . . . . . . . . . . . . . . . . . . . . . . 1071
Community Consol. School Dist. 21 of Wheeling Twp.; Sherman v. 1110
Community Mut. Ins. Co.; Tiemeyer v. . . . . . . . . . . . . . . . . . . . . . 1005
Compton; Thandiwe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Comptroller of Currency v. Variable Annuity Life Ins. Co. . . . . . 1141
Conaway, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Conboy v. Bureau of National Affairs, Inc. . . . . . . . . . . . . . . . . . . 1076
Condon v. Delaware . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1079
Confecciones Zuny Ltda. v. United States . . . . . . . . . . . . . . . . . . 1030
Conklin v. Zant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Conn v. Wells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135
Connell; Crawford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Connick; Bernard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Conroy, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Consiglio v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Constant v. Advanced Micro-Devices, Inc. . . . . . . . . . . . . . . . . . . 1084
Constant v. Wilson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Consumer Protection Division; Edmond v. . . . . . . . . . . . . . . . . . . 1124
Contreras v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Contreras v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Contreras-Subias v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1109
Convertino v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Conyers Community Church, Inc. v. Stevens . . . . . . . . . . . . . . . . 1053
Cooper, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016,1103
Copeland v. Chesapeake & Potomac Telephone Co. of Va. . . . . . . 1064
Copeland; Grote v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Copeland v. Lomen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Coral v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Corethers, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Corethers v. Friedman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Corethers v. Fuerst . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Corethers v. Kmiecik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Corn v. Lauderdale Lakes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Cornejo v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Cornellier v. Avenenti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Corrections Commissioner. See name of commissioner.
Correll v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Corugedo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Coscia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Costa; Ulyas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
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Costanz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Cotner v. Cody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Cotter & Co. v. Brizendine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Cotton v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Coughlin; Epps v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
County. See name of county.
Cowan v. Montana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Cox v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Cozad v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Craig v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Cramer v. LeCureux . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050
Crawford v. Connell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Crawford; Dingle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Crawford; Ratelle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Crockett v. Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Crook v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Crosby; Ramsey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Crosetto v. State Bar of Wis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Croskey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Cross; Bardson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Crowell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Cruz-Moreno v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Cuevas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Cuie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Cullen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Culp v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Culver v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Cummings v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Cummins v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Cuomo v. Travelers Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Curcio v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Cureton v. Mitchell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Custis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
Cuthbert; Parris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Dahlman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Daleske v. Fairfield Communities, Inc. . . . . . . . . . . . . . . . . . . . . . 1082
Dallas; Chandler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Dallas County Ed. Dist.; Gibson v. . . . . . . . . . . . . . . . . . . . . . . . . 1018
Dalton v. Specter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
D'Amario v. O'Neil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Daniels v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Danilov v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Danzey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Dauphin County; Shoop v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
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David v. Hudacs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124
Davidson; Guerrero v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Davidson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Davies v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Davilla v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Davis v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Davis v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Davis; L. A. E. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Davis v. Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Davis v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Davis v. Resolution Trust Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Davis Supermarkets, Inc. v. National Labor Relations Bd. . . . . . 1003
Day v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Deane v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Dear; Friedman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Debevoise; Thakkar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
DeBruyn; Rasheed-Bey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
DeBruyn; Willis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Deco Records; Kelly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
DeeBees; Asgrow Seed Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Delaware; Condon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1079
Delaware v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
DeLemos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Delo; Schlup v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Delo; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Deloitte, Haskins & Sells; Heritage Capital Corp. v. . . . . . . . . . . 1051
Delph v. International Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
De Maio v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Dempsey v. Rangaire Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
DeNooyer v. Livonia Public Schools . . . . . . . . . . . . . . . . . . . . . . . 1031
Dentists Ins. Co.; Berg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Denver; Casados v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Denver; Snell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Department of Air Force; Bacon v. . . . . . . . . . . . . . . . . . . . . . . . . 1043
Department of Corrections; Lyle v. . . . . . . . . . . . . . . . . . . . . . . . 1149
Department of Defense; Atamantyk v. . . . . . . . . . . . . . . . . . . . . . 1113
Department of Env. Conservation; Simpson Paper (Vt.) Co. v. . . . 1141
Department of Env. Quality of Ore.; Oregon Waste Systems, Inc. v. 93
Department of Navy; Price v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Department of Navy; Rubinstein v. . . . . . . . . . . . . . . . . . . . . . . . 1024
Department of Revenue of Mont. v. Kurth Ranch . . . . . . . . . . . . 767
Department of Social Services; Shanteau v. . . . . . . . . . . . . . . 1008,1102
Department of Treasury; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . 1144
Department of Treasury; Klimas v. . . . . . . . . . . . . . . . . . . . . . . . 1147
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Department of Veterans Affairs; Traunig v. . . . . . . . . . . . . . . . . . 1044
Department of Water Supply/Maui County; Reiskin v. . . . . . . . . . 1084
Derdeyn; University of Colo. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
DeRewal v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Desfonds v. Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Desktop Direct, Inc.; Digital Equipment Corp. v. . . . . . . . . . . . . . 863
Des Moines; Picray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Desmond v. Haldane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
DeWitt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
DeWitt; Ventetoulo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Diaz v. Government of Virgin Islands . . . . . . . . . . . . . . . . . . . . . . 1114
Diaz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Diaz del Castillo v. Aeroservice Aviation Center, Inc. . . . . . . . . . 1082
Diaz-Rosas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
DiCicco v. Tremblay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Dick v. Peters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Dickinson v. Ohio Bell Communications, Inc. . . . . . . . . . . . . . . . . 1068
DiDomenico v. Berk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
DiFranco v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Digital Equipment Corp. v. Desktop Direct, Inc. . . . . . . . . . . . . . 863
Dillard v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Dingle v. Crawford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Dingle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Diocese of Colo. v. Moses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
Diocese of Colo. v. Tenantry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
DiPinto v. Sperling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Directo v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Director, OWCP v. Greenwich Collieries . . . . . . . . . . . . . . . . . . . 1028
Director, OWCP v. Maher Terminals, Inc. . . . . . . . . . . . . . . . . . . 1029
Director, OWCP; Munguia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Director of penal or correctional institution. See name or title
of director.
Director of Revenue of Mo.; Associated Industries of Mo. v. . . . . 641
District Court. See U. S. District Court.
District Judge. See U. S. District Judge.
District of Columbia; B. S. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
District of Columbia v. Kattan . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
District of Columbia; Murray v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
District of Columbia; Preuss v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Dixon; Lawson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Dizon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Dober v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Dobson; Allied-Bruce Terminix Cos. v. . . . . . . . . . . . . . . . . . . . . . 1140
Doctor v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
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Dodds v. Cigna Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Doe v. Tullahoma City Schools Bd. of Ed. . . . . . . . . . . . . . . . . . . 1108
Dolan v. Tigard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Donahue; Anonsen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Donoghue; Whitman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Dorado v. Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Dougharty v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Douglas v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Douglas Dynamics, Inc.; Hayes v. . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Douglas VanDyke Coal Co.; VanDyke v. . . . . . . . . . . . . . . . . . . . . 1078
Dow Chemical U. S. A.; Lacey v. . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Dow Co.; Lacey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Dowell v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Downtown Frankfort, Inc. v. Capital Area Right to Life, Inc. . . . 1126
Downtown Frankfort, Inc.; Capital Area Right to Life, Inc. v. . . . 1135
Doyle v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Draper v. Gunn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Dressler; Hunter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Dressler v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Drexel Burnham Lambert Group v. Comm. of Receivers for
Galadari . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Dreyfus Corp. v. Ebanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Driesse v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Drury v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Duarte Otero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Dubois v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Dubow, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Dubuque Packing Co. v. Food & Commercial Workers . . 1016,1067,1138
Duffey v. Abbott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Duffey v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Duffy; Barth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Dukovich v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Dunbar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Duncan v. Strange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Dunham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Dunlap v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Dunn v. Regents of Univ. of Cal. . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Dunn v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Dunne v. Keohane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Dupard v. Jarvis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
DuPont v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Dupree v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Durbin v. Durbin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Duvall v. Administrator, Eastern Pa. Psychiatric Institute . . . . . 1074
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Dyer v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
E. v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Eagleye v. TRW, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Eastman Kodak Co.; French v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Eastman Kodak Co.; FutureGraphics, Ltd. v. . . . . . . . . . . . . . . . . 1019
Eau Claire County; Gamble v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Ebanks; Louis Dreyfus Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Eberhardt; Shelton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Eddy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Edmond v. Consumer Protection Division . . . . . . . . . . . . . . . . . . 1124
Edsall v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Edwards; Celotex Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Edwards v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Edwards; Northbrook Property & Casualty Ins. Co. v. . . . . . . . . . 1103
Edwards v. Phoebe Putney Memorial Hospital . . . . . . . . . . . . . . . 1039
Edwards; Recall '92, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Edwards; Todd Shipyards Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . 1031
Edwards v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Edwards v. Wilson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
EGB Associates, Inc. v. TCBY Systems, Inc. . . . . . . . . . . . . . . . . 1108
Ejay Travel, Inc. v. Algemeen Burgerlijk Pensioenfonds . . . . . . . 1107
El v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Eldridge v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Electrical Workers v. Georgia Power Co. . . . . . . . . . . . . . . . . . . . 1069
Eline v. Bishop Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Elkins v. South Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Ellenbecker v. Howe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Elliott v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
El-Masri v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
El San Hotel & Casino; Kagan v. . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Elzaatari v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Employers Underwriters, Inc. v. Weaver . . . . . . . . . . . . . . . . . . . 1129
Encore Systems, Inc. v. Ladney . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Ennis Police Dept.; Franklin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Environmental Defense Fund; Chicago v. . . . . . . . . . . . . . . . . . . . 328
Environmental Quality Comm'n of Ore.; Columbia Resource Co. v. 93
Epps v. Coughlin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Erdheim, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Erwin, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Erwin v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . 1025,1153
Escambia County Sheriff; Payne v. . . . . . . . . . . . . . . . . . . . . . . . 1111
Esnault v. Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Esparza v. Parole Panel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Esparza v. Woods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
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Espinal v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Espinosa v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Estelle; Potillor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Estelle; Shelton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Estes v. Van der Veur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021,1102
Estrada v. Gomez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Evans; Arizona v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Evans v. Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Evans; Makin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Evans & Sons; Polyak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Evatt; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Evin; Ray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Ewell v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Exxon Co. U. S. A.; Meggers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1084
Fairfax County School Bd. v. Fairfax Covenant Church . . . . . . . . 1143
Fairfax Covenant Church; Fairfax County School Bd. v. . . . . . . . 1143
Fairfield Communities, Inc.; Daleske v. . . . . . . . . . . . . . . . . . . . . . 1082
Fairley; Burnett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Falconer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Falin v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Farhat, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104
Farmer v. Brennan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825
Farmers Home Admin.; Parkridge Investors Ltd. Partnership v. 1142
Farmers Ins. Exchange; Ruscitti v. . . . . . . . . . . . . . . . . . . . . . . . 1107
Farmers State Bank; Lightle v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Fassnacht v. Philadelphia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Faust v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Favorito v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Favors v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Federacion de Maestros de Puerto Rico v. P. R. Labor Rel. Bd. . . 1069
Federal Bureau of Investigation; Bucksa v. . . . . . . . . . . . . . . . . . 1041
Federal Communications Comm'n; Branton v. . . . . . . . . . . . . . . . 1052
Federal Communications Comm'n; Cellswitch L. P. v. . . . . . . . . . 1004
Federal Deposit Ins. Corp.; Chamness v. . . . . . . . . . . . . . . . . . . . 1127
Federal Deposit Ins. Corp.; Kuehl v. . . . . . . . . . . . . . . . . . . . . . . 1034
Federal Deposit Ins. Corp.; Robinson v. . . . . . . . . . . . . . . . . . . . . 1031
Federal Government; Phelps v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Feige, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
Ferrell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Fiallo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Fierro-Gaxiola v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
15th Judicial District Court; Ledet v. . . . . . . . . . . . . . . . . . . . . . . 1091
Figueroa v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Figueroa v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
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Filios v. Massachusetts Comm'r of Revenue . . . . . . . . . . . . . . . . . 1030
Financial Security Assurance, Inc.; TÂH New Orleans Ltd. Part-
nership v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Fire Thunder v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
First Interstate Bank of Denver; Central Bank of Denver v. . . . . 164
First National Bank of Shamrock; Vaughan v. . . . . . . . . . . . . . . . 1127
Fischl v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Fitzgerald v. Montana Dept. of Family Services . . . . . . . . . . . 1032,1138
Fitzherbert v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Flack v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Flannigan; Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Flint; Reid v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Flores v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Flores-Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Florida; Arbelaez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Florida; Atwater v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Florida; Bain v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Florida; Beltran-Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Florida; Doyle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Florida; Espinosa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Florida; Garcia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Florida; Grieco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Florida v. Pough . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Florida; Randall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Florida; Stewart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049,1050
Florida; Toy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Florida Dept. of Health and Rehabilitative Services; Gheith v. . . 1056
Florida Dept. of Health and Rehabilitative Services; Keegan v. . . 1064
Florida Power Corp.; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Florida Power & Light Co.; Boca Grande Club, Inc. v. . . . . . . . . . 222
Florida Supreme Court; Graham v. . . . . . . . . . . . . . . . . . . . . . . . 1047
Flowers v. Gudmanson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Flowers v. Jordan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Flowers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Floyd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Floyd West & Co.; Newsome v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Flynn v. B&T Towing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1102
Flynn v. Garden City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1102
Font v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Fonville v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Food & Commercial Workers; Dubuque Packing Co. v. . . 1016,1067,1138
Ford v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Forestwood Farms, Inc. v. National Labor Relations Bd. . . . . . . . 1108
Forrest v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
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Forster v. New Hampshire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Forsyth County; Nationalist Movement v. . . . . . . . . . . . . . . . . . . 1033
Fortin v. Roman Catholic Bishop of Worcester . . . . . . . . . . . . . . . 1142
Foster; Kehs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Fouche v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Fox v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Foxworth v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Franco; New Mexico Environment Dept. v. . . . . . . . . . . . . . . . . . 1005
Franklin v. Ennis Police Dept. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Franklin v. Lummis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Franklin v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Fredette v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Freeman v. Idaho Comm'n for Pardons and Parole . . . . . . . . . . . . 1011
Freeman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077,1134
French v. Eastman Kodak Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Fresco, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Friedman; Corethers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Friedman v. Dear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Fromal v. Robins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Fromal v. Virginia State Bar Disciplinary Bd. . . . . . . . . . . . . . . . 1090
Frushon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
Fuentes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Fuerst; Corethers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Fuller v. Norfolk Southern Corp. . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Fullwood v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Fultz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Furman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
FutureGraphics, Ltd. v. Eastman Kodak Co. . . . . . . . . . . . . . . . . 1019
Gacy v. Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Gainer v. Symington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Gaines; Whitmore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Galbraith v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Galeano v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Gallardo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Gallodoro v. State Farm Mut. Automobile Ins. Co. . . . . . . . . . . . . 1070
Galloway v. Thurman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Gamble v. Eau Claire County . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Ganjoo; Phillips v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Gannett Co.; Mojica v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Gant; Grand Lodge of Tex. (Ancient, Free, and Accepted Masons) v. 1083
Gant v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118
Garceau v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Garcia v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Garcia v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
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Garden City; Flynn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1102
Gardner; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Garey v. Oh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Garratt v. Morris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004,1080
Garris v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Garvey Corp.; Security Services, Inc. v. . . . . . . . . . . . . . . . . . . . . 1106
Garza, Jure & King; Calvento v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Gassaway v. Cody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Gaster v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Gately; Massachusetts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Gates v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Gator Office Supply & Furniture, Inc.; Kleinschmidt v. . . . . . . . . 1101
Gaudreault v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Gay v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Gay v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Gaydos v. Chertoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Gear v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Geery v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
General Motors Corp.; McKnight v. . . . . . . . . . . . . . . . . . . . . . . . 659
Genesee Hospital; Lambert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
George v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Georgia; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Georgia; Moseley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Georgia; Waugh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Georgia Advocacy Office; McGuffey v. . . . . . . . . . . . . . . . . . . . . . 1021
Georgia Dept. of Human Resources ex rel. Cassell; Tucker v. . . . . 1141
Georgia Power Co.; Electrical Workers v. . . . . . . . . . . . . . . . . . . 1069
Gepfrich v. Gepfrich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Gerald v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Gergick v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Gersman v. Group Health Assn., Inc. . . . . . . . . . . . . . . . . . . . . . . 1068
Gheith v. Florida Dept. of Health and Rehabilitative Services . . . 1056
Gholston v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1113
Gibbs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Gibson v. Dallas County Ed. Dist. . . . . . . . . . . . . . . . . . . . . . . . . 1018
Gibson v. Macomber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Gifford v. National Bank of S. D., Presho . . . . . . . . . . . . . . . . . . . 1007
Giganti; Klutnick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Gilbert-Bey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Gill v. Vidmark, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Gillis v. Hoechst Celanese Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Gillis; Hoechst Celanese Corp. v. . . . . . . . . . . . . . . . . . . . . . . 1003,1031
Gillis v. Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Gipson v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
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Glover v. McDonnell Douglas Corp. . . . . . . . . . . . . . . . . . . . . . . . 1070
Goad v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Godin v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Goins v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co. . . . . 1128
Goldman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Goldstein v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Gomez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Gomez; Estrada v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Gomez v. Gomez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Gomez; LaFlamme v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Gomez; Maciel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Gomez; Spychala v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Gonzales v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Gonzalez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Gonzalez v. Ocean County Bd. of Social Services . . . . . . . . . . . . . 1078
Gonzalez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Gonzalez-Balderas v. United States . . . . . . . . . . . . . . . . . . . . . . . 1129
Gonzalez-Lerma v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Good v. Bowles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Good v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Goolsby; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Gorenfeld; Weber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Gosch v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Gotham Tower, Inc.; Broyde v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Gotti v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Government of Virgin Islands; Martinez Diaz v. . . . . . . . . . . . . . . 1114
Governor of Ariz.; Gainer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Governor of Ark.; Askew v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Governor of Ark.; Pickens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Governor of Fla.; Attwood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Governor of Fla.; Stewart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Governor of La.; Recall '92, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1017
Governor of N. Y. v. Travelers Ins. Co. . . . . . . . . . . . . . . . . . . . . . 1067
Governor of Ohio, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Grady v. Miami Herald Publishing Co. . . . . . . . . . . . . . . . . . . . . . 1047
Graff v. Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Graham v. Butterworth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Graham v. Florida Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . 1047
Graham & Sons v. Bertrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Grajeda v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Granderson; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Grand Lodge of Tex. (Ancient, Free, and Accepted Masons) v. Gant 1083
Grand Rapids; Warren v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
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Grant v. Vaughn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Graves v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Gray v. Tri-State Rubbish, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Gray v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Grayson; Brinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Grayson; Lodge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Great American Communications Co.; Tregenza v. . . . . . . . . . . . . 1085
Great American Ins. Co.; LeBlanc v. . . . . . . . . . . . . . . . . . . . . . . 1018
Greathouse v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Great Lakes Dredge & Dock Co.; Chicago v. . . . . . . . . . . . . . . . . 1140
Great Lakes Dredge & Dock Co.; Jerome B. Grubart, Inc. v. . . . . 1140
Greco v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Green; Hawkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Green v. Kuhlmann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Green v. Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Greene v. Albemarle-Charlottesville Joint Security Complex . . . . 1089
Greenwich Collieries; Director, OWCP v. . . . . . . . . . . . . . . . . . . . 1028
Greer v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1078
Gregg v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Grieco v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Grieco v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Griffin, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140
Griffith v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Grimes; McCampbell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Grooms v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Groose; Christeson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Groose; Shanz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Gross v. Western-Southern Life Ins. Co. . . . . . . . . . . . . . . . . . . . 1037
Grossman; Texas Commerce Bancshares, Inc. v. . . . . . . . . . . . . . . 1128
Grote v. Copeland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Group Health Assn., Inc.; Gersman v. . . . . . . . . . . . . . . . . . . . . . . 1068
Grubart, Inc. v. Great Lakes Dredge & Dock Co. . . . . . . . . . . . . . 1140
Guardian Life Ins. Co. of America; Kokkonen v. . . . . . . . . . . . . . . 375
Gudmanson; Flowers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Guernsey Memorial Hospital; Shalala v. . . . . . . . . . . . . . . . . . . . . 1016
Guerrero v. Davidson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Guillory; Sloan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Gunn; Draper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Gutierrez v. United Foods, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Gutierrez-Amezquita v. United States . . . . . . . . . . . . . . . . . . . . . 1148
Guzman v. Hudson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Hagen v. Utah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Haghighat-Jou v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Hain v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
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Hain; Oklahoma v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Haldane; Desmond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Hale v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Hale v. Via . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Haley v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Hall; Camoscio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Hall v. Hall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Hall v. Martin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Hall v. Melendez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Hall v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135
Hallford v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Hamani v. Morton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Hamilton, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
Hamilton; Polyak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Hammons v. U. S. Railroad Retirement Bd. . . . . . . . . . . . . . . . . . 1069
Hance v. Zant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Hancock County Planning Comm'n; Yater v. . . . . . . . . . . . . . . . . . 1019
Hando v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Hankerson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Hankins v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Hanson v. Passer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Hanzy v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Hargett; Benson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Harland Co.; Security Services, Inc. v. . . . . . . . . . . . . . . . . . . . . . 1106
Harper v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Harper v. Harper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Harris v. American Medical International, Inc. . . . . . . . . . . . . . . . 1068
Harris v. Campbell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Harris; Hoffman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Harris v. Raemisch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Harris v. Rocha . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Harris; Sears, Roebuck & Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Harris v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095,1147
Harrod, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Hart; Tornowski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Hartsock v. Kentucky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Harvey; Cobb County v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Harvey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Harwood; Asam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Hassan El v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Hawes; Boalbey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Hawkins v. Cody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Hawkins v. Green . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Hawley; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055,1131
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Hayden v. La-Z-Boy Chair Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Hayes v. Douglas Dynamics, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Hayes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1009,1020,1077
Haynes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
Hays v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Hayward v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004,1101
Hazzard v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Hazzard v. Oakland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Health Care & Retirement Corp. of America; NLRB v. . . . . . . . . 571
Hearron v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Hedges; A. J. Industries, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Hedley; Ruchti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Heilig v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Heiman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Heinz Co.; Silvey Refrigerated Carriers, Inc. v. . . . . . . . . . . . . . . 1106
Heitkamp; Lange v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Heitmann, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002,1125
Henderson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Henderson v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Henderson; Starkey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Henry v. Wetzler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Henson v. Snyder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Henthorn, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140
Heritage Capital Corp. v. Deloitte, Haskins & Sells . . . . . . . . . . . 1051
Hernandez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1042,1130
Hernandez v. White . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Herrera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095,1148
Herrera-Duran v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Herring, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Herring v. Meachum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Hess v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Hess v. Port Authority Trans-Hudson Corp. . . . . . . . . . . . . . . . . . 1067
Hester v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
Hett v. Madison Mut. Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Hicklin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Hicks v. Baltimore Gas & Electric Co. . . . . . . . . . . . . . . . . . . . . . 1102
Hicks v. Brown Group, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Hicks v. Brown Shoe Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Hicks v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Hilaire v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Hill v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Hill v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Hill v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001,1054
Hillary v. Trans World Airlines, Inc. . . . . . . . . . . . . . . . . . . . . . . 1128
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Hillburn v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Hines v. Iowa Bd. of Psychology Examiners . . . . . . . . . . . . . . . . 1143
Hinkle v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Hinton v. Pacific Enterprises . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
H. J. Heinz Co.; Silvey Refrigerated Carriers, Inc. v. . . . . . . . . . . 1106
Hodge v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Hoechst Celanese Corp. v. Gillis . . . . . . . . . . . . . . . . . . . . . . . 1003,1031
Hoeschst Celanese Corp.; Gillis v. . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Hoffman v. Harris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Hoffman v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Hoffman; Northington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Hoffman v. Webster County Sheriff's Dept., Marshfield . . . . . . . . 1092
Holland; McMillan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Holland; Poole v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Hollawell v. Stepanik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Holloway, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Holly v. Brennan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047,1152
Holman v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Holmes v. Norris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Holmes v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Holt v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Holt v. Michigan Dept. of Corrections . . . . . . . . . . . . . . . . . . . . . . 1068
Holthaus v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Honda Motor Co. v. Oberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Honeycutt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Hong v. Children's Memorial Hospital . . . . . . . . . . . . . . . . . . . . . 1005
Honolulu Police Dept.; Logan v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Hood v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Hooks v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Hord v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Hornback v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070,1152
Horning v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Horton v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Hoskins v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Hoskins v. Kinney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Hospital Assn. of N. Y. v. Travelers Ins. Co. . . . . . . . . . . . . . . . . . 1067
House of Raeford Farms, Inc. v. National Labor Relations Bd. . . 1030
Howard v. Nagle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Howard v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090,1146
Howe; Ellenbecker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Hozdish v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Hua Chen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Hudacs; David v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124
Hudson; Guzman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
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Hudson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Huey v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Huffman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Huggins v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Hughes v. Norfolk & Western R. Co. . . . . . . . . . . . . . . . . . . . . . . 1128
Hughes v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Hughes v. White . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Huguley Memorial Seventh-day Adventist Med. Ctr.; Peterson v. 1068
Hulen; Polyak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Hull v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Hulnick, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Human, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Human v. Santa Monica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Humana, Inc.; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Humphreys; Oklahoma v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Hunnewell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Hunt, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140
Hunt v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Hunt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Hunter; Brown-Brunson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Hunter v. Dressler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Hunter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Hunter v. White . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Hunwardsen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Hurley v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Hust, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Hutchinson v. Artuz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Hutchinson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Ibarra-Arreola v. Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Idaho; Atkinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Idaho; Hodge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Idaho; Hoffman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Idaho; Stillwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Idaho Comm'n for Pardons and Parole; Freeman v. . . . . . . . . . . . 1011
Ige v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Ikpoh v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Illinois; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Illinois; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Illinois; Edwards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Illinois; Holman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Illinois; Ikpoh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Illinois; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Illinois; Nunnally v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Illinois; Towns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
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Immigration and Naturalization Service; Adesanya v. . . . . . . . . . 1101
Immigration and Naturalization Service; Cheslerean v. . . . . . . . . 1004
Immigration and Naturalization Service; Jolivet v. . . . . . . . . . . . . 1041
Immigration and Naturalization Service; Katsis v. . . . . . . . . . . . . 1118
Immigration and Naturalization Service; Stone v. . . . . . . . . . . . . 1105
Immigration and Naturalization Service; White v. . . . . . . . . . . . . 1141
Indiana; Manns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Indiana; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Indiana Bell Telephone Co.; Luddington v. . . . . . . . . . . . . . . . . . . 1068
Infante; Magula v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
In Hong v. Children's Memorial Hospital . . . . . . . . . . . . . . . . . . . 1005
Innie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
In re. See name of party.
International. For labor union, see name of trade.
International Paper; Delph v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Interstate Commerce Comm'n v. Overland Express, Inc. . . . . . . . 1103
Interstate Commerce Comm'n v. Transcon Lines . . . . . . . . . . 1029,1105
Interstate Independent Corp. v. Ohio ex rel. Roszmann . . . . . . . . 1084
Inverness; Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Iowa; Leeps v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Iowa; McKnight v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Iowa; Neyens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Iowa Bd. of Psychology Examiners; Hines v. . . . . . . . . . . . . . . . . 1143
Iowa Bd. of Psychology Examiners; McMaster v. . . . . . . . . . . . . . 1143
Iowa District Court for Jones County; Backstrom v. . . . . . . . . . . 1042
Irvine; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Israel v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Istvan v. Willoughby of Chevy Chase Condo. Council of Owners 1037
Iverson v. Weeks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Ivimey v. American Bank of Conn. . . . . . . . . . . . . . . . . . . . . . . . . 1064
Jackson v. Department of Treasury . . . . . . . . . . . . . . . . . . . . . . . 1144
Jackson v. New York City Police Dept. . . . . . . . . . . . . . . . . . . . . 1004
Jackson v. Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Jackson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1114,1130,1145
Jackson v. Wisneski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Jacobs; Board of Governors of Registered Dentists of Okla. v. . . . 1082
Jacobson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
J. Alexander Securities, Inc. v. Mendez . . . . . . . . . . . . . . . . . . . . 1150
James, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
James v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042,1047
James Island Public Service Dist.; Siegel v. . . . . . . . . . . . . . . 1053,1152
Jamison v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Jarmusik v. Merit Systems Protection Bd. . . . . . . . . . . . . . . . . . . 1143
Jarvis; Dupard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
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J. E. B. v. Alabama ex rel. T. B. . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Jefferson v. Zant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Jeffress v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Jenkins v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Jenkins; Long v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Jenkins v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. . . . . 1140
Jimenez v. MGM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Jimenez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
John E. Graham & Sons v. Bertrand . . . . . . . . . . . . . . . . . . . . . . . 1070
John H. Harland Co.; Security Services, Inc. v. . . . . . . . . . . . . . . 1106
Johnson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Johnson; Calderon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Johnson v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013,1088
Johnson; Eldridge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Johnson; Gergick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Johnson v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003,1105
Johnson v. Mann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Johnson v. Methodist Medical Center of Ill. . . . . . . . . . . . . . . . . . 1107
Johnson v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Johnson v. Senkowski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Johnson v. Stinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Johnson; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044,1153
Johnson v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Johnson v. Uncle Ben's, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Johnson v. United States . . . . . . . . . . . . . . . . 1036,1042,1095,1129,1130
Johnston v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Jolivet v. Immigration and Naturalization Service . . . . . . . . . . . . 1041
Jones, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Jones; Hazzard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Jones; Holt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Jones v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Jones v. Merit Systems Protection Bd. . . . . . . . . . . . . . . . . . . . . . 1076
Jones; Nelson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020,1138
Jones v. Snyder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Jones; Townley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Jones v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 368,1129,1144
Jones; Walker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Jordan v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Jordan; Flowers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Jordan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Joseph v. Whitley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Journal Communications; Kotas v. . . . . . . . . . . . . . . . . . . . . . . . . 1093
Juarez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
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Judge, Circuit Court of Mo., St. Louis County; Harris v. . . . . . . . 1101
Juno Beach; Karatinos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Jurcev v. Central Community Hospital . . . . . . . . . . . . . . . . . . . . . 1081
Kagan v. El San Hotel & Casino . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Kahn v. Virginia Retirement System . . . . . . . . . . . . . . . . . . . . . . 1083
Kaiser Foundation Health Plan, Inc.; Samura v. . . . . . . . . . . . . . . 1084
Kalakay v. Newblatt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Kamienski v. New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Kansas; Cotton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Kansas; Van Winkle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Kansas City; Sanders v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Kansas Public Employees Ret. Sys. v. Reimer & Koger Assoc. . . 1126
Kanu v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Kaplan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Karatinos v. Juno Beach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Karim-Panahi v. California Dept. of Transportation . . . . . . . . . . . 1048
Karim-Panahi v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Katsis v. Immigration and Naturalization Service . . . . . . . . . . . . 1118
Kattan; District of Columbia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Keane; Winkler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Kee v. Provident Life & Accident Ins. Co. . . . . . . . . . . . . . . . . . . 1084
Keegan v. Florida Dept. of Health and Rehabilitative Services . . 1064
Keeper v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Kehs v. Foster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Kellogg Co.; Arnett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Kellom v. Shelley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Kelly v. Deco Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Kelly v. Municipal Court of Cal., San Mateo County . . . . . . . . . . 1009
Kelly v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Kennedy v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Kennedy v. Little . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Kennedy v. Nebraska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Kennedy v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118
Kennedy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Kennemore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Kentucky; Hartstock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Kenzie; Mack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Keohane; Dunne v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Kerr v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Key Enterprises of Del., Inc.; Sammett Corp. v. . . . . . . . . . . . . . . 1126
Key Tronic Corp. v. United States . . . . . . . . . . . . . . . . . . . . . . . . 809
Kibbe v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Kidd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059,1069
Kiem Tran v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
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Killeen; Poole v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Kilpatrick; Platsky v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Kim v. Reich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
King v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
King v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Kinney; Hoskins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Kirk; Light v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1138
Kish; Burchill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006,1101
Klein, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051
Kleinschmidt v. Gator Office Supply & Furniture, Inc. . . . . . . . . . 1101
Kleinschmidt v. Liberty Mut. Ins. Co. . . . . . . . . . . . . . . . . . . . . . 1112
Klimas v. Department of Treasury . . . . . . . . . . . . . . . . . . . . . . . . 1147
Klutnick v. Giganti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Kmart Corp.; Security Services, Inc. v. . . . . . . . . . . . . . . . . . . . . 431
Kmiecik; Corethers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Kodak Co.; French v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kodak Co.; FutureGraphics, Ltd. v. . . . . . . . . . . . . . . . . . . . . . . . 1019
Koelker v. Koelker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Koff v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Kokkonen v. Guardian Life Ins. Co. of America . . . . . . . . . . . . . . 375
Kole, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Kong Yin Chu v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Koprowski, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Kost v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Kotas v. Journal Communications . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Kowalczyk v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Kramer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Krasner, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Kreuzhage v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Krivanek; Clewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Krohn, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Kroner; Caldwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Krug v. Ambrose, Wilson, Grimm & Durand . . . . . . . . . . . . . . . . 1108
Kuehl v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . . . . . . . . . . 1034
Kuhlmann; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Kukes, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153
Kukes v. Calderon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Kuono, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Kurth Ranch; Department of Revenue of Mont. v. . . . . . . . . . . . . 767
Kuykendall v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Kyles v. Whitley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051,1125
Laan v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
Labor Union. See name of trade.
LaBoy v. Pucinski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
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Lacey v. Dow Chemical U. S. A. . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Lacey v. Dow Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Ladney; Encore Systems, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
L. A. E. v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Laessig v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
LaFlamme v. Gomez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
LaFrankie; Colorado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Laird v. Pizzulli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Lake County; Seagrave v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Lamb v. Union Carbide Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Lambdin; Senich v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Lambert v. Genesee Hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Lamberty v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Lampkin; Vanover v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Lancaster Mennonite Conference; Cassell v. . . . . . . . . . . . . . . . . . 1085
Landesberg v. U. S. Bankruptcy Court, Southern Dist. of N. Y. . . 1034
Landgraf v. USI Film Products . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Landsdown v. Winters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lane v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Lange v. Heitkamp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Lange v. Lange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Langlinais v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Lanham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Lanham; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Larner v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
La Rosa; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Larson; Wood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Lashley v. Rocha . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Last Stand v. Perry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Lauderdale Lakes; Corn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Lawrence v. Columbia Presbyterian Medical Center . . . . . . . . . . 1070
Lawson v. Dixon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Lawson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Layne v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
La-Z-Boy Chair Co.; Hayden v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
LeBlanc v. Great American Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . 1018
LeBlanc v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Lebron v. National Railroad Passenger Corp. . . . . . . . . . . . . . . . 1105
LeCureux; Cramer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050
Ledden v. Stepanik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Ledet v. 15th Judicial District Court . . . . . . . . . . . . . . . . . . . . . . 1091
Lee v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1113,1114
Lee; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Leeper v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
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Leeps v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
LeFlore v. Marvel Entertainment Group . . . . . . . . . . . . . . . . . . . 1081
Leftwich; Colorado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Lejarde v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Lensing v. Arkansas Dept. of Human Services . . . . . . . . . . . . . . . 1037
Lewin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Lewis v. Blazak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Lewis v. Cadle Co. II, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Lewis v. Casey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Lewis v. Maass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Lewis v. Moyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Lewis v. Richmond City Police Dept. . . . . . . . . . . . . . . . . . . . . . . 1023
Lewis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Lewis; Voight v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Liberty Mut. Ins. Co.; Kleinschmidt v. . . . . . . . . . . . . . . . . . . . . . 1112
Licon-Hernandez v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1021
Light v. Kirk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1138
Lightle v. Farmers State Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Limones v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Lipovsky v. Carter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Little; Kennedy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Little v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Livadas v. Aubry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016,1028
Livonia Public Schools; DeNooyer v. . . . . . . . . . . . . . . . . . . . . . . 1031
Llerena-Acosta v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Loa v. Akaka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Local. For labor union, see name of trade.
LoCascio v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Lockhart; Middleton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Lockheed Missiles & Space Co.; Phelps v. . . . . . . . . . . . . . . . . . . 1012
Lockley; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Lodeiro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Lodge v. Grayson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Loewenstein; Nebraska Dept. of Revenue v. . . . . . . . . . . . . . . . . 1104
Lofton v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Logan v. Honolulu Police Dept. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Lohman; Associated Industries of Mo. v. . . . . . . . . . . . . . . . . . . . 641
Lomax v. Stepanik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Lomen; Copeland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Londoff, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Long v. Jenkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Loomis v. Vernon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Lopatin, Miller, et al., Attorneys at Law, P. C.; Baker v. . . . . . . . 1056
Lopez v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
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Lopez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Lopez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043,1096
Lopez; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029,1105
Lopez Gonzalez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Los Angeles v. Topanga Press, Inc. . . . . . . . . . . . . . . . . . . . . . . . 1030
Loudermilk v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Louis Dreyfus Corp. v. Ebanks . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Louisiana; Cinel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Louisiana; Code v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Louisiana; Langlinais v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Louisiana Dept. of Transportation and Development v. Wiedeman 1127
Louisiana Ins. Guaranty Assn.; Allstate Ins. Co. v. . . . . . . . . . . . . 1142
Louisiana State Univ.; Omoike v. . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Love; Snyder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Lovejoy Specialty Hospital, Inc.; Advocates for Life, Inc. v. . . . . . 1070
Lowery v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Lucas; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Lucero v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Luckette v. Ryan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Luddington v. Indiana Bell Telephone Co. . . . . . . . . . . . . . . . . . . 1068
Ludwig v. Variable Annuity Life Ins. Co. . . . . . . . . . . . . . . . . . . . 1141
Lugo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Lummi Indian Tribe v. Whatcom County . . . . . . . . . . . . . . . . . . . 1066
Lummis; Franklin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Luna County; Slesarik v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Lupe v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Lux v. Spotswood Construction Loans, L. P. . . . . . . . . . . . . . . . . 1011
Lyle v. Department of Corrections . . . . . . . . . . . . . . . . . . . . . . . . 1149
Lyle v. McKeon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1102
Lyle v. Michigan Dept. of Corrections . . . . . . . . . . . . . . . . . . . . . 1093
Lyle v. Richardson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Lynn; Marshall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Lysne v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Maass; Barquet v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Maass; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Mabery v. Mann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Maciel v. Gomez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Mack v. Kenzie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Mackey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Macomber; Gibson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Madera-Avila v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Madison v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Madison Mut. Ins. Co.; Hett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Madonia v. Blue Cross & Blue Shield of Va. . . . . . . . . . . . . . . . . . 1019
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Madsen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003,1102
Madsen v. Women's Health Center, Inc. . . . . . . . . . . . . . . . . . . . . 1016
Magnolia Court Apartments, Inc. v. Carlson . . . . . . . . . . . . . . . . 1084
Magula v. Infante . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Maher Terminals, Inc.; Director, OWCP v. . . . . . . . . . . . . . . . . . . 1029
Mahn v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Mahshie; Bseirani v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Maine Terminal College System; Winston v. . . . . . . . . . . . . . . . . 1069
Makin v. Colorado Territorial Correctional Facility . . . . . . . . . . . 1131
Makin v. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Makinde v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Mala v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Maldonado v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118
Mancilla v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Manghan; Mangrum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Mangrum v. Manghan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Mann; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Mann; Mabery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Mann v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Mann; Razi-Bey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Manns v. Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Mansfield v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Marek v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Mark v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Marroquin-Giron v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1040
Marshall v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Marshall v. Lynn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Marshall v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058,1114
Marshall; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022,1102
Marte v. Chevron Corp. Long-Term Disability Plan . . . . . . . . . . . 1032
Martin v. Florida Power Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Martin; Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Martin v. Omega Medical Center Associates . . . . . . . . . . . . . . . . 1011
Martin v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Martinez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Martinez; New York v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
Martinez; Sanchez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Martinez Diaz v. Government of Virgin Islands . . . . . . . . . . . . . . 1114
Martinez-Perez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Marvel Entertainment Group; LeFlore v. . . . . . . . . . . . . . . . . . . . 1081
Maryland; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Maryland; Dorado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Maryland; Gillis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
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Maryland; Roberson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Mason v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Masri v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Massachusetts; Desfonds v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Massachusetts v. Gately . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Massachusetts Comm'r of Revenue; Filios v. . . . . . . . . . . . . . . . . 1030
Mata v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Matthews v. South Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Maxwell v. Arvonio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Mayfield v. Michigan Bd. of Law Examiners . . . . . . . . . . . . . . . . . 1147
Mayles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Mayor of Dallas; Qutb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Mazyck v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
McAninch; O'Neal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017,1067
McCampbell v. Grimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
McCaskey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
McClellan; Barreto v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
McClendon v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
McClenny, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
McCombs v. Norris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
McConnell v. Armontrout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
McConnell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
McCowan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
McCummings v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
McDermott, Inc. v. AmClyde . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
McDonald v. New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
McDonald v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034,1047
McDonnell Douglas Corp.; Glover v. . . . . . . . . . . . . . . . . . . . . . . . 1070
McDonough v. Angelone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
McFail v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
McGeough v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
McGinnis; Van Sickle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
McGlocklin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
McGuffey v. Georgia Advocacy Office . . . . . . . . . . . . . . . . . . . . . . 1021
McHone v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
McKay v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113,1145
McKennon v. Nashville Banner Publishing Co. . . . . . . . . . . . . . . . 1106
McKenzie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
McKeon; Lyle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1102
McKinley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
McKnight v. General Motors Corp. . . . . . . . . . . . . . . . . . . . . . . . . 659
McKnight v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
McMahon v. Bank of America N. T. & S. A. . . . . . . . . . . . . . . . . . 1022
McMaster v. Iowa Bd. of Psychology Examiners . . . . . . . . . . . . . 1143
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McMillan v. Holland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
McMurray v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
McMurtry v. Snyder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
McNamara, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
McNaron v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
McQueen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1113
McReady v. Breeden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
McVay v. Parrish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Meacham, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Meachum; Herring v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Medical Engineering Corp. v. American Medical Systems, Inc. . . 1070
Medical Society of N. Y. v. Sobol . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Medina v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Medlock; Pressley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Meeks v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Meggers v. Exxon Co. U. S. A. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1084
Meis v. Wyoming Dept. of Corrections . . . . . . . . . . . . . . . . . . . . . 1072
Melendez; Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Mena v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Mendenhall v. Cedarapids, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Mendez; J. Alexander Securities, Inc. v. . . . . . . . . . . . . . . . . . . . . 1150
Mendez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Mendoza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Mendoza-Lopez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Merit Systems Protection Bd.; Jarmusik v. . . . . . . . . . . . . . . . . . 1143
Merit Systems Protection Bd.; Jones v. . . . . . . . . . . . . . . . . . . . . 1076
Merlos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Merrell Dow Pharmaceuticals; Rose v. . . . . . . . . . . . . . . . . . . 1040,1153
Merriweather v. Mitchell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Messer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096,1113
Messerschmidt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Methodist Hospital v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Methodist Medical Center of Ill.; Johnson v. . . . . . . . . . . . . . . . . . 1107
Metzger v. Berhanu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Metzger v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Meuli v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Meyers; Wolfe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Mezzanatto; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . 1029,1067
MGM; Jimenez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Miami Herald Publishing Co.; Grady v. . . . . . . . . . . . . . . . . . . . . . 1047
Miccio v. New Jersey Dept. of Community Affairs . . . . . . . . . . . . 1129
Michael Reese Hospital & Medical Center; Porter v. . . . . . . . . . . 1012
Michigan; Burgenmeyer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Michigan; Franklin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
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Michigan; Mihalek v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Michigan Bd. of Law Examiners; Mayfield v. . . . . . . . . . . . . . . . . 1147
Michigan Dept. of Corrections; Holt v. . . . . . . . . . . . . . . . . . . . . . 1068
Michigan Dept. of Corrections; Lyle v. . . . . . . . . . . . . . . . . . . . . . 1093
Mickler v. Nimishillen & Tuscarawas R. Co. . . . . . . . . . . . . . . . . . 1084
Micks, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Middleton v. Lockhart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Midwest Marine Contractor, Inc. v. Rufolo . . . . . . . . . . . . . . . . . . 1050
Mihalek v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Mihnovets v. Mihnovets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Mikhail v. Railroad Retirement Bd. . . . . . . . . . . . . . . . . . . . . . . . 1110
Millan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Miller v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Miller v. La Rosa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Miller v. Rowland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Miller v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025,1040
Miloslavsky v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Minh Trong v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Minnesota; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Missouri; Cain v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Missouri; Ramsey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Missouri Pacific R. Co. v. Tingstrom . . . . . . . . . . . . . . . . . . . . 1026,1083
Mitchell v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Mitchell; Cureton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Mitchell; Merriweather v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Mitchell v. Osborne . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Mitchell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Mitchell Arms, Inc. v. United States . . . . . . . . . . . . . . . . . . . . . . 1106
Mobil Oil Corp.; Raymond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Mock v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Moerman v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Mojica v. Gannett Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Molen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Moley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Molpus; Prewitt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Monish v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Montalvo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045,1147
Montana; Byers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Montana; Cowan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Montana; Van Haele v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Montana Dept. of Family Services; Fitzgerald v. . . . . . . . . . . 1032,1138
Montes-Mercado v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Montgomery v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1078
Moody; Attorney General of N. Y. v. . . . . . . . . . . . . . . . . . . . . . . . 1084
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Moody v. Rivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Moore v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Moore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054,1096
Moran v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Moran v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Moreno v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Morgan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054,1057
Morgan Stanley & Co. v. Pacific Mut. Life Ins. Co. . . . . . . . . . . . . 658
Morin v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Moringiello, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104
Morris, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Morris; Garratt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004,1080
Morris; Watson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021,1118
Morris County v. Philippen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Morton; Clemons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Morton; Hamani v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Mose; Diocese of Colo. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
Moseley v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Moses v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Mosley v. Clark County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Mosley v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Mostman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140
Moyer; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Mulhollan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1058
Mu'Min v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Munguia v. Director, Office of Workers' Compensation Programs 1086
Municipal Court of Cal., San Mateo County; Kelly v. . . . . . . . . . . 1009
Munir v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Munoz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Murillo v. Tansy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Murphy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019,1118
Murphy; Weber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Murphy v. Westchester County . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Murray; Chilton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Murray; Clay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Murray; Cochran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Murray v. District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Murray; Ewell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Murray; George v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Murray; Hunt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Murray; Mu'Min v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Murray; Shackford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Murray; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Murray; Simpson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
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Murray v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Murray; Wise v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Murtagh; Berks County v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Myers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045,1149
Myrick v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Nader v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Nagle; Howard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Naplin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Napoles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Naranjo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Nard v. Reed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Nashville Banner Publishing Co.; McKennon v. . . . . . . . . . . . . . . 1106
Nath, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002,1104
National Bank of S. D., Presho; Gifford v. . . . . . . . . . . . . . . . . . . 1007
National Collegiate Athletic Assn.; Tarkanian v. . . . . . . . . . . . . . 1033
Nationalist Movement v. Forsyth County . . . . . . . . . . . . . . . . . . . 1033
NLRB; Cascade General, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
NLRB; Davis Supermarkets, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . 1003
NLRB; Forestwood Farms, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1108
NLRB v. Health Care & Retirement Corp. of America . . . . . . . . 571
NLRB; House of Raeford Farms, Inc. v. . . . . . . . . . . . . . . . . . . . . 1030
NLRB; NTA Graphics, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124
NLRB; Tuskegee Area Transportation System v. . . . . . . . . . . . . 1083
NLRB; Visiting Homemaker & Health Services, Inc. v. . . . . . . . . 1123
National Railroad Passenger Corp.; Lebron v. . . . . . . . . . . . . . . . 1105
National Transportation Safety Bd.; Woolsey v. . . . . . . . . . . . . . . 1081
National Union Fire Ins. Co.; Thomas v. . . . . . . . . . . . . . . . . . . . 1013
NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co. . . . 1141
Navanick v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Navarette-Avendano v. United States . . . . . . . . . . . . . . . . . . . . . 1130
Navarro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Nebraska; Kennedy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Nebraska; Victor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Nebraska v. Wyoming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Nebraska Dept. of Revenue v. Loewenstein . . . . . . . . . . . . . . . . . 1104
Nebraska State Bar Assn.; Wheeler v. . . . . . . . . . . . . . . . . . . . . . 1084
Nelson; Greco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Nelson; Grieco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Nelson v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020,1138
Nelson v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Nelson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Nethery v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Nethery v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123
Netters v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
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Nevada; Ibarra-Arreola v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Nevada; Powell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Nevell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Newblatt; Kalakay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
New Hampshire; Forster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
New Jersey; Busby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
New Jersey; Kamienski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
New Jersey v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
New Jersey Dept. of Community Affairs; Miccio v. . . . . . . . . . . . . 1129
New Jersey Dept. of Env. Prot. & Energy; Torwico Electronics v. 1046
Newkirk v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
New Mexico; McDonald v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
New Mexico Environment Dept. v. Franco . . . . . . . . . . . . . . . . . . 1005
Newport News Shipbuilding & Dry Dock Co.; Payne v. . . . . . . . . 1084
Newsome v. Floyd West & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
New York; Alls v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
New York; Almodovar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
New York; Contreras v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
New York; Delaware v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
New York; Godin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
New York; Hurley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
New York v. Martinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
New York; New Jersey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
New York; Shabazz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
New York City; 383 Madison Associates v. . . . . . . . . . . . . . . . . . . 1081
New York City Police Dept.; Jackson v. . . . . . . . . . . . . . . . . . . . . 1004
New York Conf. of Blue Cross & B. Shield Plans v. Travelers Ins. 1067
New York Dept. of Correctional Services; Taveras v. . . . . . . . . . . 1132
New York State Dept. of Env. Conserv. v. Niagara Mohawk Power 1141
New York State Dept. of Tax. and Fin.; Bray Terminals, Inc. v. 1143
Neyens v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Nhan Kiem Tran v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1048
Niagara Mohawk Power; New York State Dept. of Env. Conserv. v. 1141
Nichols v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 738
Nielsen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Nimishillen & Tuscarawas R. Co.; Mickler v. . . . . . . . . . . . . . . . . 1084
Nink; Tucker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Nolt, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Norfolk Southern Corp.; Fuller v. . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Norfolk & Western R. Co.; Hughes v. . . . . . . . . . . . . . . . . . . . . . . 1128
Norris; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Norris; Holmes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Norris; McCombs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Norris v. Orndorff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
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Norris; Richley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
North American Vaccine, Inc. v. American Cyanamid Co. . . . . . . 1069
Northbrook Property & Casualty Ins. Co. v. Edwards . . . . . . . . . 1103
North Carolina v. Bryant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
North Carolina; Horton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
North Carolina; McHone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
North Carolina; Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1102
North Carolina v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Northeast Dept. ILGWU Health and Welfare Fund; Travitz v. . . 1143
Northington v. Hoffman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Northrop Corp. v. United States ex rel. Barajas . . . . . . . . . . . . . . 1033
North Star Steel Co. v. Steelworkers . . . . . . . . . . . . . . . . . . . . . . 1048
NTA Graphics, Inc. v. National Labor Relations Bd. . . . . . . . . . . 1124
Nunez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Nunnally v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Nunnelee; Yarrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Nyberg v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Oakes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Oakland; Hazzard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Oberg; Allied Van Lines, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Oberg; Honda Motor Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Ocean County Bd. of Social Services; Gonzalez v. . . . . . . . . . . . . . 1078
O'Connor, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
O'Dea; Stephens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Odeco Oil & Gas Co., Drilling Div. v. Bonnette . . . . . . . . . . . . . . . 1004
Office of Personnel Management; Thieken v. . . . . . . . . . . . . . . . . . 1037
Ogan v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Ogunde v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Oh; Garey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Ohio; Beuke v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Ohio; Buell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Ohio; Byrd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Ohio; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Ohio; Greer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1078
Ohio; Henderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Ohio; Hicks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Ohio; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Ohio; Horning v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Ohio; Jamison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Ohio; Mason v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Ohio; Montgomery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1078
Ohio; Paris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Ohio; Poindexter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Ohio; President v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
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Ohio; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1051
Ohio; Sowell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Ohio Bell Communications, Inc.; Dickinson v. . . . . . . . . . . . . . . . . 1068
Ohio ex rel. Roszmann; Interstate Independent Corp. v. . . . . . . . 1084
Ojeda Chang v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Oklahoma; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Oklahoma; Duffey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Oklahoma v. Hain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Oklahoma; Hain v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Oklahoma; Hooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Oklahoma v. Humphreys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Oklahoma; Mann v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Oklahoma; Thornton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Oklahoma; Williamson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Okolie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Okor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Olivo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Ollie v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Omectin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Omega Medical Center Associates; Martin v. . . . . . . . . . . . . . . . . 1011
Omoike v. Louisiana State Univ. . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
O'Murchu v. Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
O'Murchu v. Suter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
O'Neal v. McAninch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017,1067
O'Neil; D'Amario v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Oregon; Crockett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Oregon Waste Systems, Inc. v. Department of Env. Quality of Ore. 93
Orion Pictures Corp. v. Showtime Networks, Inc. . . . . . . . . . . . . 1026
Orndorff; Norris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Ortega v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Ortiz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Ortiz-Cameron v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Osborne; Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Otero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Ovalle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Overland Express, Inc.; Interstate Commerce Comm'n v. . . . . . . 1103
Owens v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Owens v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Owens-Corning Fiberglas Corp.; Amerada Hess Corp. v. . . . . . . . 1051
Pace v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Pacific Enterprises; Hinton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Pacific Mut. Life Ins. Co.; Morgan Stanley & Co. v. . . . . . . . . . . . 658
Paddio v. Board of Trustees for State Colleges & Univs. of La. . . 1085
Page; Gacy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
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Page v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Page-Bey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Pagliara-Samayoa v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1040
Paradise v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Paris v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Paris Accessories, Inc.; Solick v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Parish v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Parkridge Investors Ltd. Partnership v. Farmers Home Admin. 1142
Parlavecchio v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Parmet; Sei Young Choi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Parole Panel; Esparza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Parr; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Parris v. Cuthbert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Parris v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077,1144
Parrish; McVay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Passer; Hanson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Patriarca v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Patterson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Patton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Paulk v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Pawlak v. Pennsylvania Bd. of Law Examiners . . . . . . . . . . . . . . 1101
Payne v. Escambia County Sheriff . . . . . . . . . . . . . . . . . . . . . . . . 1111
Payne v. Newport News Shipbuilding & Dry Dock Co. . . . . . . . . 1084
Peabody Institute, Johns Hopkins Univ. Conserv. of Music; Ray v. 1107
Peacock v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Pearson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043,1126
Peck v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Pegg, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Pennsylvania; Danilov v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Pennsylvania; Doctor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Pennsylvania; Laessig v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Pennsylvania; Moran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Pennsylvania; Ollie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Pennsylvania; Sam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Pennsylvania; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Pennsylvania Bd. of Law Examiners; Pawlak v. . . . . . . . . . . . . . . 1101
Pennsylvania Dept. of Transportation; Warenczuk v. . . . . . . . . . . 1092
Pennsylvania Public Utility Comm'n; West Penn Power Co. v. . . . 1105
Perry; Last Stand v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Perry; Protect Key West, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Pete v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Peters; Brackett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Peters; Dick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Peterson v. Adventist Health System/Sunbelt, Inc. . . . . . . . . . . . . 1068
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Peterson v. Huguley Memorial Seventh-day Adventist Med. Ctr. 1068
Peterson v. Scully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Peterson; Sellers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Phelps v. Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Phelps v. Lockheed Missiles & Space Co. . . . . . . . . . . . . . . . . . . . 1012
Philadelphia; Fassnacht v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Philadelphia; Steinbronn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Philip Morris Inc.; Tatum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Philip Morris USA; Tatum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Philippen; Morris County v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Phillips v. Ganjoo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Phillips v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Phillips Petroleum Co. v. Robertson Oil Co. . . . . . . . . . . . . . . . . . 1115
Phoebe Putney Memorial Hospital; Edwards v. . . . . . . . . . . . . . . 1039
Pickens v. Tucker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Picray v. Des Moines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Pieratt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Pimentel; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
Pine Bluff School Dist. No. 3; Williams v. . . . . . . . . . . . . . . . . 1007,1102
Pinkett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Pirtle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Pitts v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Pitts v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Pizzulli; Laird v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Platsky v. Kilpatrick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Plaut v. Spendthrift Farm, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Poindexter v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Police v. Carpenter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Pollard v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Polyak v. Boston . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Polyak v. Buford Evans & Sons . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Polyak v. Hamilton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Polyak v. Hulen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Polyak v. Stack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Ponce v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Ponce de Leon v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Poole v. Holland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Poole v. Killeen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Pope v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Port Authority Trans-Hudson Corp.; Hess v. . . . . . . . . . . . . . . . . 1067
Porter v. Michael Reese Hospital & Medical Center . . . . . . . . . . . 1012
Porter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Posters `N' Things, Ltd. v. United States . . . . . . . . . . . . . . . . . . . 513
Postmaster General; Simms v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
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Postmaster General; Spranger v. . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Potillor v. Estelle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Pough; Florida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Powell v. Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Powers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
President v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Presley, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Pressley v. Medlock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Preuss, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Preuss v. District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Prewitt v. Molpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Price, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Price v. Akaka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Price v. Department of Navy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Price v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Price; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124
Prince v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Protect Key West, Inc. v. Perry . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Provda, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Provident Life & Accident Ins. Co.; Kee v. . . . . . . . . . . . . . . . . . . 1084
Prudential-LMI; Ayrs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Prudhome v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Pryor; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Pryor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Psarianos v. United Kingdom Mut. S. S. Assurance Assn. . . . . . . 1142
Public Administrator of N. Y. County; United States Lines, Inc. v. 1085
Pucinski; LaBoy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
PUD No. 1 of Jefferson County v. Washington Dept. of Ecology 700
Puerto Rico Labor Rel. Bd.; Federacion de Maestros de P. R. v. 1069
Pugh v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Puig-Mir v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Purificato v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Purkett; Tyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1138
Putney Memorial Hospital; Edwards v. . . . . . . . . . . . . . . . . . . . . 1039
Quarles v. Scuderi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Quinn-L Capital Corp. v. Royal Ins. Co. of America . . . . . . . . . . . 1032
Qutb v. Bartlett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Radford v. Chevron, U. S. A., Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Radziercz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Raemisch; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Railroad Retirement Bd.; Mikhail v. . . . . . . . . . . . . . . . . . . . . . . . 1110
Raji v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Raju v. Rhodes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Ramaswami v. Texas Dept. of Human Services . . . . . . . . . . . . . . 1047
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Ramirez-Galvan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Ramsden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Ramsey v. Abbeville General Hospital . . . . . . . . . . . . . . . . . . . . . 1032
Ramsey v. Crosby . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Ramsey v. Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Randall v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Randall v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012,1048
Rangaire Corp.; Dempsey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Rasheed-Bey v. DeBruyn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Ratelle v. Crawford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Rau v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Rawoot v. Signet Bank/Va. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Ray v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Ray v. Ervin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Ray v. Peabody Institute, Johns Hopkins Univ. Conserv. of Music 1107
Ray v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Raymond v. Mobil Oil Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Raymond; Titlemore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Razi-Bey v. Mann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Reaves v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Recall '92, Inc. v. Edwards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Redland Aggregates Ltd.; Snead v. . . . . . . . . . . . . . . . . . . . . . . . 1050
Reed v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Reed; Nard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Reed v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Reese Hospital & Medical Center; Porter v. . . . . . . . . . . . . . . . . . 1012
Refco, Inc. v. Committee of Receivers for A. W. Galadari . . . . . . . 1069
Regents of Univ. of Cal.; Dunn v. . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Reich v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Reich; Kim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Reicher v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Reid v. Flint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Reid v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Reimer & Koger Assoc.; Kansas Public Employees Ret. Sys. v. . . 1126
Reiskin v. Department of Water Supply/Maui County . . . . . . . . . 1084
Reno; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Reno; O'Murchu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Rentschler, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051
Resolution Trust Corp.; BFP v. . . . . . . . . . . . . . . . . . . . . . . . . . . 531
Resolution Trust Corp.; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Resolution Trust Corp.; Shane v. . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Reuter; Skipper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Revello v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Revenue Comm'r of Ga.; Reich v. . . . . . . . . . . . . . . . . . . . . . . . . . 1067
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Reyes v. Weimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Reynolds v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Reynolds v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
Rhinehart v. Seattle Times . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Rhodes; Raju v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Rice v. Vaughn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Rich; Toegemann v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Richards v. Bartlett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074,1112
Richards v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Richardson; Lyle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Richardson v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033,1048
Richardson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Richley v. Norris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Richmond v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Richmond v. Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Richmond City Police Dept.; Lewis v. . . . . . . . . . . . . . . . . . . . . . 1023
Rico-Ruiz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Ritchie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Rivas-Cordova v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Rivas-Gaytan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Rivera v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Rivera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1011,1035,1041
River Grove Police Pension Bd.; Ryndak v. . . . . . . . . . . . . . . . . . 1052
Rivers; Moody v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Rivers v. Roadway Express, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 298
Roadway Express, Inc.; Rivers v. . . . . . . . . . . . . . . . . . . . . . . . . . 298
Roberson v. Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Roberts; Arney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Roberts; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Roberts; Sloan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Robertson Oil Co.; Phillips Petroleum Co. v. . . . . . . . . . . . . . . . . 1115
Robins; Fromal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Robinson v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . . . . . . . 1031
Robinson; Simpson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Robinson v. Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Robinson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Robinson v. Welborn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Rocha; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Rocha; Lashley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Rock Island County; Boalbey v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Rodreiquez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Rodrick v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Rogers v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Rogers v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
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Rogers v. Inverness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Rogers v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1102
Rogers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Roldan v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Roman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Roman Catholic Bishop of Worcester; Fortin v. . . . . . . . . . . . . . . 1142
Romero v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Romero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Rone; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Rong Hua Chen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Rosa v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Rosch v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Rose v. Merrell Dow Pharmaceuticals . . . . . . . . . . . . . . . . . . 1040,1153
Rose v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Rose v. Westmoreland Coal Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Ross v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Ross v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042,1124
Ross v. ZVI Trading Corp. Employees' Pension Plan & Trust . . . 1017
Ross; ZVI Trading Corp. Employees' Pension Plan & Trust v. . . 1017
Rosser v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Roszmann; Interstate Independent Corp. v. . . . . . . . . . . . . . . . . . 1084
Rougeau v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Rowland; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Rowland; Trujillo-Garcia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Royal v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
Royal Ins. Co. of America; Quinn-L Capital Corp. v. . . . . . . . . . . 1032
Rubens v. Shine, Julianelle, Karp, Bozelko & Karazin, P. C. . . . . . 1142
Rubinstein v. Department of Navy . . . . . . . . . . . . . . . . . . . . . . . . 1024
Ruchti v. Hedley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Rufolo; Midwest Marine Contractor, Inc. v. . . . . . . . . . . . . . . . . . 1050
Ruiz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Runyon; Simms v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Runyon; Spranger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Ruscitti v. Farmers Ins. Exchange . . . . . . . . . . . . . . . . . . . . . . . . 1107
Russell v. Shaker Heights Municipal Court . . . . . . . . . . . . . . . . . 1131
Ruzicka v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Ryan; Luckette v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Ryles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Ryndak v. River Grove Police Pension Bd. . . . . . . . . . . . . . . . . . . 1052
Ryskamp v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
S. v. District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Sacks, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Saenz Salaiz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Saenz Soliz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
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St. Paul Property & Casualty; Vitek v. . . . . . . . . . . . . . . . . . . . . . 1048
Sakaria v. Trans World Airlines . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Salaiz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Salazar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Salcedo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Salomon Forex, Inc.; Tauber v. . . . . . . . . . . . . . . . . . . . . . . . . 1031,1138
Salter v. Whitley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Sam v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Sammett Corp. v. Key Enterprises of Del., Inc. . . . . . . . . . . . . . . 1126
Sammi Corp.; Vollrath Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Sammons, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
Samrick v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Samuels v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Samura v. Kaiser Foundation Health Plan, Inc. . . . . . . . . . . . . . . 1084
Sanchez v. Martinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Sanchez v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1011,1023,1095
Sanchez Santana v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1114
Sanchez Tellez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Sanders, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Sanders v. Kansas City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Sanders; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Sanderson v. Winfield Carraway Hospital . . . . . . . . . . . . . . . . . . . 1031
Sandoval v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,1101
Sanford v. Alameda-Contra Costa Transit Dist. . . . . . . . . . . . 1007,1102
Santa Monica; Human v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Santana v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Santiago v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Santiago-Godinez v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1060
Savich v. Savich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Schackart v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Schlup v. Delo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Schneider v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Schwartz, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Scott, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Scott v. Delo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Scott; Gonzales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Scott; Holmes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Scott; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Scott; Kennedy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118
Scott; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Scott; Munir v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Scott v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1051
Scott; Richards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Scroggy, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051
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Scuderi; Quarles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Scully; Peterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Seagrave v. Lake County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Sears, Roebuck & Co. v. Harris . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Seattle v. Bascomb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Seattle Times; Rhinehart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Second Judicial District Court of Nev.; Allum v. . . . . . . . . . . . . . . 1109
Secretary, N. C. Dept. of Crime Control; Barfield v. . . . . . . . . . . . 1109
Secretary of Army; Beard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Secretary of Army; Sikka v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Secretary of Defense; Last Stand v. . . . . . . . . . . . . . . . . . . . . . . . 1141
Secretary of Defense; Protect Key West, Inc. v. . . . . . . . . . . . . . . 1141
Secretary of HHS; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1153
Secretary of HHS; Balog v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Secretary of HHS; Falin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Secretary of HHS v. Guernsey Memorial Hospital . . . . . . . . . . . . 1016
Secretary of HHS; Hando v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Secretary of HHS; Huey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Secretary of HHS; LeBlanc v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Secretary of HHS; McCummings v. . . . . . . . . . . . . . . . . . . . . . . . 1032
Secretary of HHS; Methodist Hospital v. . . . . . . . . . . . . . . . . . . . 1142
Secretary of HHS; Price v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Secretary of HHS; Richardson v. . . . . . . . . . . . . . . . . . . . . . . 1033,1048
Secretary of HHS; Semien v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118
Secretary of HHS; Tschida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Secretary of Labor; Kim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Secretary of Navy v. Specter . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
Secretary of State of Miss.; Prewitt v. . . . . . . . . . . . . . . . . . . . . . 1080
Secretary of Veterans Affairs v. Gardner . . . . . . . . . . . . . . . . . . . 1017
Secretary of Veterans Affairs; Jeffress v. . . . . . . . . . . . . . . . . . . . 1112
Secretary of Veterans Affairs; McNaron v. . . . . . . . . . . . . . . . . . . 1108
Security Services, Inc. v. Garvey Corp. . . . . . . . . . . . . . . . . . . . . 1106
Security Services, Inc. v. John H. Harland Co. . . . . . . . . . . . . . . . 1106
Security Services, Inc. v. Kmart Corp. . . . . . . . . . . . . . . . . . . . . . 431
Sei Young Choi v. Parmet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Sellers v. Peterson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Sellick Equipment, Inc. v. Boutte . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Semien v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118
Senich v. Lambdin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Senkowski; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Serhan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Serna Sanchez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Setlech v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Shabazz v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
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Shackford v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Shaker Heights Municipal Court; Russell v. . . . . . . . . . . . . . . . . . 1131
Shakespeare, Inc.; Silstar Corp. of America, Inc. v. . . . . . . . . . . . 1127
Shakur v. Beyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Shalala; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1153
Shalala; Balog v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Shalala; Falin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Shalala v. Guernsey Memorial Hospital . . . . . . . . . . . . . . . . . . . . 1016
Shalala; Hando v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Shalala; Huey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Shalala; LeBlanc v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Shalala; McCummings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Shalala; Methodist Hospital v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Shalala; Price v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Shalala; Richardson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033,1048
Shalala; Semien v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118
Shalala; Tschida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Shane v. Resolution Trust Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Shanteau v. Department of Social Services . . . . . . . . . . . . . . . 1008,1102
Shanz v. Groose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Sharp's Pawn Shop v. Board of County Comm'rs of Osage County 1031
Shelley; Kellom v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Shelling v. Southern R. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Shelton v. Eberhardt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Shelton v. Estelle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Shelton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Sherman v. Community Consol. School Dist. 21 of Wheeling Twp. 1110
Shieh, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Shimizu v. Bellah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Shimizu v. Superior Court of Cal., Sonoma County . . . . . . . . . . . 1032
Shine, Julianelle, Karp, Bozelko & Karazin, P. C.; Rubens v. . . . . 1142
Shockey v. Badger Coal Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1153
Shoop v. Dauphin County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Shorthouse v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Showtime Networks, Inc.; Orion Pictures Corp. v. . . . . . . . . . . . . 1026
Siegel v. James Island Public Service Dist. . . . . . . . . . . . . . . . 1053,1152
Signet Bank/Va.; Rawoot v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Sikka v. West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Silstar Corp. of America, Inc. v. Shakespeare, Inc. . . . . . . . . . . . . 1127
Silva v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Silvey Refrigerated Carriers, Inc. v. H. J. Heinz Co. . . . . . . . . . . 1106
Simmons v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Simmons v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Simmons v. Pryor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
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Simms v. Runyon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Simon v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Simpson v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
Simpson v. Robinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Simpson; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
Simpson Paper (Vt.) Co. v. Department of Env. Conservation . . . 1141
Sims v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Sims-Robertson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Singletary; Marek v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Singletary; Nyberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Singletary; Randall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012,1048
Singletary; Stewart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049
Singletary; Whiting v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Singletary; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Singletary; Woods v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Singleton v. Carmichael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Sinkfield v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Sipos v. Williamson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Skarbnik; Blackston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102
Skipper v. Reuter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Slade v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Slesarik v. Luna County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Sloan, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Sloan v. Guillory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Sloan v. Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Sloan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Slotky; Chicago Truck Drivers Pension Fund v. . . . . . . . . . . . . . . 1018
Smith, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Smith v. Borg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Smith; Christiansen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Smith; Clinton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Smith; Deane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Smith; Hood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Smith v. Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Smith v. Lucas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Smith; Mazyck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Smith; Newkirk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Smith v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1129,1130,1134
Snavely v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Snead v. Redland Aggregates Ltd. . . . . . . . . . . . . . . . . . . . . . . . . 1050
Snell v. Denver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
Snelling v. Chrysler Motors Corp. . . . . . . . . . . . . . . . . . . . . . . . . 1079
Snider v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Snitkin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
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Snyder; Henson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Snyder; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Snyder v. Love . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Snyder; McMurtry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Sobol; Medical Society of N. Y. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Solick v. Paris Accessories, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Soliz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Sotelo Sanchez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
South Carolina; Buchanan v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1074,1153
South Carolina; Elkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
South Carolina; Matthews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138
South Dakota; Stetter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Southern R. Co.; Shelling v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Southern R. Co.; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Sova; Zack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Sowders v. Carter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Sowell v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Spain v. Aetna Life Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Spaletta v. California Workers' Compensation Appeals Bd. . . . . . 1006
Spaulding; Woolery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Specter; Dalton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
Spence, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1125
Spencer v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Spencer v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065
Spendthrift Farm, Inc.; Plaut v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Sperling; DiPinto v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Spotswood Construction Loans, L. P.; Lux v. . . . . . . . . . . . . . . . . 1011
Spranger v. Runyon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Spychala v. Gomez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Stack; Polyak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Stanley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Stanley & Co. v. Pacific Mut. Life Ins. Co. . . . . . . . . . . . . . . . . . . 658
Stansbury v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Stanton; Boothe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009,1153
Staples v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 600
Starkes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124
Starkey v. Henderson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
State. See also name of State.
State Bar of Mont.; Steele v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
State Bar of Wis.; Crosetto v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
State Farm Ins. Co.; Bynum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
State Farm Lloyds Co.; Adamo v. . . . . . . . . . . . . . . . . . . . . . . . . . 1053
State Farm Mut. Automobile Ins. Co.; Gallodoro v. . . . . . . . . . . . 1070
Staton v. Vaughn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
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Stauffacher v. Teledyne Continental Motors . . . . . . . . . . . . . . . . . 1053
Steel v. Wachtler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023,1118
Steele v. State Bar of Mont. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Steele v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Steelworkers; North Star Steel Co. v. . . . . . . . . . . . . . . . . . . . . . 1048
Steelworkers v. Warrior & Gulf Navigation Co. . . . . . . . . . . . . . . 1083
Steinbronn v. Philadelphia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Steiner; Brunwasser v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Steinhorn, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Stepanik; Benson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Stepanik; Hollawell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Stepanik; Ledden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Stepanik; Lomax v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Stephens v. O'Dea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Stephenson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Stetter v. South Dakota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Stevens, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Stevens; Conyers Community Church, Inc. v. . . . . . . . . . . . . . . . . 1053
Stewart v. Chiles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Stewart v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049,1050
Stewart v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049
Stewart v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Stewart; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Stillwell v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Stinson; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Stock; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Stockdale v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Stoddard v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Stone v. Immigration and Naturalization Service . . . . . . . . . . . . . 1105
Strahan; Thandiwe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Strange; Duncan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Streeter v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Streeter v. Burton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054,1132
Stribling v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Strickland; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039,1138
Strobridge v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Stroud v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Suda v. Brenner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Suggs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Sullivan v. Clark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Sullivan v. Flannigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Sundance Cruises Corp. v. American Bureau of Shipping . . . . . . . 1018
Sunrise Bank of Cal.; Anolik v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
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Superintendent of penal or correctional institution. See name or
title of superintendent.
Superior Court of Cal., Appellate Dept., L. A. County; Andrisani v. 1064
Superior Court of Cal., L. A. County; Baxter v. . . . . . . . . . . . . . . 1056
Superior Court of Cal., Sonoma County; Shimizu v. . . . . . . . . . . . 1032
Suter; O'Murchu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Sweatt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Sweeney v. Civil Service Comm'n . . . . . . . . . . . . . . . . . . . . . . 1007,1102
Swerdlow, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139
Swisher; Alston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Symington; Gainer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Tanner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082
Tansy; Murrillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Tantalo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Taren-Palma v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Tarkanian v. National Collegiate Athletic Assn. . . . . . . . . . . . . . . 1033
Tarver v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Tarver v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Tatum v. Philip Morris Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Tatum v. Philip Morris USA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Tauber v. Salomon Forex, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 1031,1138
Tavaglione; Billings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Tavarez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Taveras v. New York Dept. of Correctional Services . . . . . . . . . . 1132
Taylor; Gaster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Taylor v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044,1153
Taylor v. Strickland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039,1138
Taylor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Taylor; Wallace v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
T. B.; J. E. B. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
TCBY Systems, Inc.; EGB Associates, Inc. v. . . . . . . . . . . . . . . . . 1108
Teledyne Continental Motors; Stauffacher v. . . . . . . . . . . . . . . . . 1053
Tellez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Tenantry; Diocese of Colo. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
Tenner v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Tennessee; Van Tran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Terio v. Terio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Ternes v. Berchard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Terrell v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Territory. See name of Territory.
Terry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Texas; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Texas; Barnes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Texas; Behringer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
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Texas; Chambers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Texas; Gosch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Texas; Hughes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
Texas; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Texas; King v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133
Texas; Lamberty v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Texas; Madison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Texas; Moreno v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Texas; Nethery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123
Texas; Ogan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Texas; Owens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141
Texas; Tucker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Texas; Walker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Texas; Watson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Texas; Wills v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Texas Commerce Bancshares, Inc. v. Grossman . . . . . . . . . . . . . . 1128
Texas Dept. of Human Services; Ramaswami v. . . . . . . . . . . . . . . 1047
Thakkar v. Debevoise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Thandiwe v. Compton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Thandiwe v. Strahan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Thieken v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1037
Third National Bank in Nashville v. Commissioner of Ins. of La. 1082
TÂH New Orleans Ltd. Partnership v. Financial Security Assur-
ance, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Thomas v. National Union Fire Ins. Co. . . . . . . . . . . . . . . . . . . . . 1013
Thomas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1004,1043,1148
Thompson v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Thompson; Collins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Thompson; Kowalczyk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Thompson v. United States . . . . . . . . . . . . . . . . . . . 1010,1038,1112,1138
Thornton v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
383 Madison Associates v. New York City . . . . . . . . . . . . . . . . . . 1081
Thurman; Galloway v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
Ticor Title Ins. Co. v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Tiemeyer v. Community Mut. Ins. Co. . . . . . . . . . . . . . . . . . . . . . 1005
Tigard; Dolan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Tilmon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Tingstrom; Missouri Pacific R. Co. v. . . . . . . . . . . . . . . . . . . . 1026,1083
Tingstrom; Union Pacific R. Co. v. . . . . . . . . . . . . . . . . . . . . . 1026,1083
Titlemore v. Raymond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Tizeno v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Todd Shipyards Corp. v. Edwards . . . . . . . . . . . . . . . . . . . . . . . . 1031
Toegemann v. Rich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Tonka Corp. v. Bituminous Casualty Corp. . . . . . . . . . . . . . . . . . . 1083
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Tooze v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Topanga Press, Inc.; Los Angeles v. . . . . . . . . . . . . . . . . . . . . . . . 1030
Tornowski v. Hart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Torres Rivera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Torwico Electronics, Inc. v. N. J. Dept. of Env. Prot. & Energy . . 1046
Town. See name of town.
Townley v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Towns v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Toy v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Tran v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Tran v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024,1048
Transamerican Natural Gas Corp. v. Zapata Partnership, Ltd. . . 1143
Transcon Lines; Interstate Commerce Comm'n v. . . . . . . . . . 1029,1105
Trans World Airlines; Sakaria v. . . . . . . . . . . . . . . . . . . . . . . . . . 1083
Trans World Airlines, Inc.; Hillary v. . . . . . . . . . . . . . . . . . . . . . . 1128
Traunig v. Department of Veterans Affairs . . . . . . . . . . . . . . . . . 1044
Travelers Ins. Co.; Cuomo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Travelers Ins. Co.; Hospital Assn. of N. Y. v. . . . . . . . . . . . . . . . . 1067
Travelers Ins. Co.; N. Y. Conf. of Blue Cross & B. Shield Plans v. 1067
Travitz v. Northeast Dept. ILGWU Health and Welfare Fund . . . 1143
Treadwell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Treasury Employees; United States v. . . . . . . . . . . . . . . . . . . 1029,1102
Tregenza v. Great American Communications Co. . . . . . . . . . . . . 1085
Tregoning v. American Community Mut. Ins. Co. . . . . . . . . . . . . . 1082
Tremblay; DiCicco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Trevizo-Ortiz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Tripati v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Triplin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148
Trippet v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Tri-State Rubbish, Inc. v. Auburn . . . . . . . . . . . . . . . . . . . . . . . . 1106
Tri-State Rubbish, Inc.; Gray v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Trong v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Trujillo-Garcia v. Rowland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
TRW, Inc.; Eagleye v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Tschida v. Shalala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Tucker; Askew v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Tucker v. Georgia Dept. of Human Resources ex rel. Cassel . . . . 1141
Tucker v. Nink . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Tucker; Pickens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Tucker v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Tucker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034,1095
Tullahoma City Schools Bd. of Ed.; Doe v. . . . . . . . . . . . . . . . . . . . 1108
Turnbull v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Turner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
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Turner; Zink v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Tuskegee Area Transportation System v. NLRB . . . . . . . . . . . . . 1083
Two Unknown Marshals; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . 1020
Tyler v. Purkett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1138
Uberoi v. University of Colo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Uberoi v. University of Colo. Bd. of Regents . . . . . . . . . . . . . . . . 1031
Ulyas v. Costa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Uncle Ben's, Inc.; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Union. For labor union, see name of trade.
Union Carbide Corp.; Lamb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Union Pacific R. Co. v. Tingstrom . . . . . . . . . . . . . . . . . . . . . . 1026,1083
United. For labor union, see name of trade.
United Foods, Inc.; Gutierrez v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
United Kingdom Mut. S. S. Assur. Assn. (Bermuda); Psarianos v. 1142
United Parcel Service; Austin v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1152
United States. See name of other party.
U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership . . . . 1002,1140
U. S. Bankruptcy Court, Southern Dist. of N. Y.; Landesberg v. . 1034
U. S. District Court; Bryant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
U. S. District Court; California v. . . . . . . . . . . . . . . . . . . . . . . . . . 1005
U. S. District Court; Erwin v. . . . . . . . . . . . . . . . . . . . . . . . . . 1025,1153
U. S. District Court; Geery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
U. S. District Court; Israel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
U. S. District Judge; Kalakay v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
U. S. District Judge; Thakkar v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
United States Lines, Inc. v. Public Administrator of N. Y. County 1085
U. S. Railroad Retirement Bd.; Hammons v. . . . . . . . . . . . . . . . . . 1069
University of Colo. v. Derdeyn . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
University of Colo.; Uberoi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
University of Colo. Bd. of Regents; Uberoi v. . . . . . . . . . . . . . . . . 1031
Urias-Melendez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1044
USI Film Products; Landgraf v. . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Utah; Hagen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Vailuu v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Valdes-Puig v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
Valencia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
Valenzuela-Lopez v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1130
Valera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Vance; Bartlett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040,1102
Van der Veur; Estes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021,1102
Vandrew; Webber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
VanDyke v. Douglas VanDyke Coal Co. . . . . . . . . . . . . . . . . . . . . 1078
VanDyke Coal Co.; VanDyke v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Van Engel v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
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Van Haele v. Montana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Vanover v. Lampkin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Van Sickle v. McGinnis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Van Tran v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Van Wagner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Van Winkle v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Variable Annuity Life Ins. Co.; Ludwig v. . . . . . . . . . . . . . . . . . . 1141
Variable Annuity Life Ins. Co.; NationsBank of N. C., N. A. v. . . . 1141
Vaughan v. First National Bank of Shamrock . . . . . . . . . . . . . . . . 1127
Vaughan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Vaughn; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Vaughn; Clifton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Vaughn; Grant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Vaughn; Rice v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Vaughn; Staton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Vaughn v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Vela v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149
Veltman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Venable, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Ventetoulo v. DeWitt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Vermont Dept. of Public Service; Choudhary v. . . . . . . . . . . . . . . 1133
Vernon; Loomis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143
Via; Hale v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Vickery v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Victor v. Nebraska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Vidmark, Inc.; Gill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Vierrether v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Villa v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Villanueva v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146
Villegas Lopez v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Vincent v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Virginia; Catlett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Virginia; Dubois v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Virginia Retirement System; Kahn v. . . . . . . . . . . . . . . . . . . . . . . 1083
Virginia State Bar Disciplinary Bd.; Fromal v. . . . . . . . . . . . . . . . 1090
Virgin Islands; Martinez Diaz v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Visintine v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Visiting Homemaker & Health Services, Inc. v. NLRB . . . . . . . . 1123
Vitek v. St. Paul Property & Casualty . . . . . . . . . . . . . . . . . . . . . 1048
Vogt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Voight v. Lewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Voinovich, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Vollrath Co. v. Sammi Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
Von Schiget v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
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Wachtler; Steel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023,1118
Wade, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1125
Walden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Walker, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Walker v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Walker v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Walker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Wall v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Wallace v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Wallace v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Walsh v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081
Warden. See name of warden.
Warenczuk v. Pennsylvania Dept. of Transportation . . . . . . . . . . . 1092
Warner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147
Warren v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Warren v. Grand Rapids . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Warren v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1034,1047,1110
Warrior & Gulf Navigation Co.; Steelworkers v. . . . . . . . . . . . . . . 1083
Washington, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Washington v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Washington v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Washington Dept. of Ecology; PUD No. 1 of Jefferson County v. 700
Waters v. Churchill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 661
Waters; Richmond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Waters v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Watkins; Alabama v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137
Watson v. Morris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021,1118
Watson v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Watson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1076
Watt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Waugh v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Weaver v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Weaver; Employers Underwriters, Inc. v. . . . . . . . . . . . . . . . . . . 1129
Weaver Popcorn Co.; Golden Valley Microwave Foods, Inc. v. . . . 1128
Webb v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Webber v. Vandrew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Weber v. Gorenfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Weber v. Murphy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Webster County Sheriff's Dept., Marshfield; Hoffman v. . . . . . . . . 1092
Weeks; Iverson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Wehringer v. Brannigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Weidner; Armesto v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Weimer; Reyes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Welborn; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
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Welch v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096
Wells, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Wells v. American Airlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Wells; Conn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135
Wells v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050
West v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
West; Beard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
West; Sikka v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
West v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081,1147
Westchester County v. Commissioner of Transportation of Conn. 1107
Westchester County; Murphy v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
West & Co.; Newsome v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Western-Southern Life Ins. Co.; Gross v. . . . . . . . . . . . . . . . . . . . 1037
Westfall v. Whitley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Westmoreland Coal Co.; Rose v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1083
West Penn Power Co. v. Pennsylvania Public Utility Comm'n . . . 1105
Wetzler; Henry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Weyerhaeuser Co.; Woodworkers v. . . . . . . . . . . . . . . . . . . . . . . . 1128
Whatcom County; Lummi Indian Tribe v. . . . . . . . . . . . . . . . . . . 1066
Wheeler v. Nebraska State Bar Assn. . . . . . . . . . . . . . . . . . . . . . 1084
Whitaker, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
White v. Browning-Ferris, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142
White; Hernandez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
White; Hughes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
White; Hunter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
White v. Immigration and Naturalization Service . . . . . . . . . . . . 1141
White v. United States . . . . . . . . . . . . . . . . . . . . . . 1037,1043,1047,1072
Whitehead v. Bradley Univ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Whitehead v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
White Mountain Apache Tribe of Ariz. v. United States . . . . . . . 1030
Whiting v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Whitley; Joseph v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Whitley; Kyles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051,1125
Whitley; Salter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Whitley; Westfall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Whitley; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Whitman v. Donoghue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Whitmore v. Gaines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Wiedeman; Louisiana Dept. of Transportation and Development v. 1127
Williams v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Williams v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022,1055
Williams; Goad v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Williams v. Hawley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055,1131
Williams; North Carolina v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
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lxxii TABLE OF CASES REPORTED
Page
Williams v. Pine Bluff School Dist. No. 3 . . . . . . . . . . . . . . . . 1007,1102
Williams v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Williams v. Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Williams v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1035,1044,1057
Williamson v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Williamson; Sipos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Willis v. DeBruyn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Willoughby of Chevy Chase Condo. Council of Owners; Istvan v. 1037
Wills v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097
Wilson v. Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088
Wilson; Constant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Wilson; Edwards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Wilson v. Lanham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074
Wilson v. Sanders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Wilson v. Southern R. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Wilson v. United States . . . . . . . . . . . . . . . . . . . . . 1054,1057,1130,1134
Wilt; Buracker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Winfield Carraway Hospital; Sanderson v. . . . . . . . . . . . . . . . . . . 1031
Winkler v. Keane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Winston v. Maine Terminal College System . . . . . . . . . . . . . . . . . 1069
Winterboer; Asgrow Seed Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Winters v. Board of County Comm'rs of Osage County . . . . . . . . 1031
Winters; Landsdown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Wisconsin; Beson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Wise v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Wiseman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Wisneski; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Witcher v. Witcher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Witt v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132
Wolens; American Airlines, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1017
Wolfe v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Wolfe v. Meyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Women's Health Center, Inc.; Madsen v. . . . . . . . . . . . . . . . . . . . . 1016
Wood; Campbell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118,1119
Wood v. Larson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089
Woodard, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051
Woodruff v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Woods; Esparza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Woods v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092
Woodward v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Woodworkers v. Weyerhaeuser Co. . . . . . . . . . . . . . . . . . . . . . . . . 1128
Woolery v. Spaulding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Woolsey v. National Transportation Safety Bd. . . . . . . . . . . . . . . 1081
Workers' Compensation Appeals Bd. of Cal.; Yitref v. . . . . . . . . . 1036
511repu123 07-15-97 19:38:54 PGT*TCR
TABLE OF CASES REPORTED lxxiii
Page
Wormuth v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Wright v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Wright; Convertino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Wright; Dowell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Wright v. Marshall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022,1102
Wright; Spencer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065
Wright v. Whitley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144
Wright v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087
Wu v. Board of Trustees, Univ. of Ala. . . . . . . . . . . . . . . . . . . . . . 1033
Wuliger v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
Wyoming; Nebraska v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Wyoming Dept. of Corrections; Meis v. . . . . . . . . . . . . . . . . . . . . 1072
Yamada, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140
Yarrell v. Nunnelee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Yater v. Hancock County Planning Comm'n . . . . . . . . . . . . . . . . . 1019
Yeager v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Yeamons v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Yin Chu v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Yitref v. Workers' Compensation Appeals Bd. of Cal. . . . . . . . . . . 1036
York Rite Bodies of Freemasonry of Savannah v. Board of Equal-
ization of Chatham County . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Young v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1090
Young v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Young Choi v. Parmet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145
Younger v. Younger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Young In Hong v. Children's Memorial Hospital . . . . . . . . . . . . . . 1005
Zack v. Sova . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Zack v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134
Zant; Conklin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100
Zant; Hance v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Zant; Jefferson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Zapata v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Zapata Gulf Marine Corp. v. Chiasson . . . . . . . . . . . . . . . . . . . . . 1029
Zapata Partnership, Ltd.; Transamerican Natural Gas Corp. v. . . 1143
Ziegler v. Board of Bar Examiners of Del. . . . . . . . . . . . . . . . . . . 1084
Zink v. Turner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Zotos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Zuniga-Rosales v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
ZVI Trading Corp. Employees' Pension Plan & Trust v. Ross . . . 1017
ZVI Trading Corp. Employees' Pension Plan & Trust; Ross v. . . 1017
Zzie, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1993
VICTOR v. NEBRASKA
certiorari to the supreme court of nebraska
No. 92Â8894. Argued January 18, 1994-Decided March 22, 1994*
The government must prove beyond a reasonable doubt every element of
a charged offense. In re Winship, 397 U. S. 358. In upholding the first
degree murder convictions and death sentences of petitioners Sandoval
and Victor, the Supreme Courts of California and Nebraska, respec-
tively, rejected contentions that due process was violated by the pattern
jury instructions defining "reasonable doubt" that were given in both
cases.
Held: Taken as a whole, the instructions in question correctly conveyed
the concept of reasonable doubt, and there is no reasonable likelihood
that the jurors understood the instructions to allow convictions based
on proof insufficient to meet the Winship standard. Pp. 5Â23.
(a) The Constitution does not dictate that any particular form of
words be used in advising the jury of the government's burden of proof,
so long as "taken as a whole, the instructions correctly conve[y] the
concept of reasonable doubt," Holland v. United States, 348 U. S. 121,
140. In invalidating a charge declaring, among other things, that a rea-
sonable doubt "must be such . . . as would give rise to a grave uncer-
tainty," "is an actual substantial doubt," and requires "a moral cer-
tainty," the Court, in Cage v. Louisiana, 498 U. S. 39, 40, observed that
*Together with No. 92Â9049, Sandoval v. California, on certiorari to
the Supreme Court of California.
1
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2 VICTOR v. NEBRASKA
Syllabus
a reasonable juror could have interpreted the instruction to allow a
finding of guilt based on a degree of proof below that which is constitu-
tionally required. However, in Estelle v. McGuire, 502 U. S. 62, 72,
and n. 4, the Court made clear that the proper inquiry is not whether
the instruction "could have" been applied unconstitutionally, but
whether there is a reasonable likelihood that the jury did so apply it.
Pp. 5Â6.
(b) The instructions given in Sandoval's case defined reasonable
doubt as, among other things, "not a mere possible doubt," but one "de-
pending on moral evidence," such that the jurors could not say they
felt an abiding conviction, "to a moral certainty," of the truth of the
charge. Pp. 6Â9.
(c) Sandoval's objection to the charge's use of the 19th century
phrases "moral evidence" and "moral certainty" is rejected. Although
the former phrase is not a mainstay of the modern lexicon, its meaning
today is consistent with its original meaning: evidence based on the
general observation of people, rather than on what is demonstrable. Its
use here is unproblematic because the instructions given correctly
pointed the jurors' attention to the facts of the case before them, not
(as Sandoval contends) the ethics or morality of his criminal acts. For
example, in the instruction declaring that "everything relating to human
affairs, and depending on moral evidence, is open to some possible or
imaginary doubt," moral evidence can only mean empirical evidence of-
fered to prove matters relating to human affairs-the proof introduced
at trial. Similarly, whereas "moral certainty," standing alone, might
not be recognized by modern jurors as a synonym for "proof beyond a
reasonable doubt," its use in conjunction with the abiding conviction
language must be viewed as having impressed upon the jury the need
to reach the subjective state of near certitude of guilt, see Jackson v.
Virginia, 443 U. S. 307, 315, and thus as not having invited conviction
on less than the constitutionally required proof. Moreover, in contrast
to the situation in Cage, there is no reasonable likelihood that the jury
here would have understood moral certainty to be disassociated from
the evidence in the case, since the instruction explicitly told the jurors,
among other things, that their conclusion had to be based upon such
evidence. Accordingly, although this Court does not condone the use of
the antiquated "moral certainty" phrase, its use in the context of the
instructions as a whole cannot be said to have rendered those instruc-
tions unconstitutional. Pp. 10Â17.
(d) Sandoval's objection to the portion of the charge declaring that a
reasonable doubt is "not a mere possible doubt" is also rejected. That
the instruction properly uses "possible" in the sense of fanciful is made
511us1$30Z 11-03-97 16:58:40 PAGES OPINPGT
Cite as: 511 U. S. 1 (1994) 3
Syllabus
clear by the fact that it also notes that everything "is open to some
possible or imaginary doubt." P. 17.
(e) The instructions given in Victor's case defined reasonable doubt
as, among other things, a doubt that will not permit an abiding convic-
tion, "to a moral certainty," of the accused's guilt, and an "actual and
substantial doubt" that is not excluded by the "strong probabilities of
the case." Pp. 17Â19.
(f) Victor's primary argument-that equating a reasonable doubt
with a "substantial doubt" overstated the degree of doubt necessary for
acquittal-is rejected. Any ambiguity is removed by reading the
phrase in question in context: The Victor charge immediately distin-
guished an "actual and substantial doubt" from one "arising from mere
possibility, from bare imagination, or from fanciful conjecture," and
thereby informed the jury that a reasonable doubt is something more
than a speculative one, which is an unexceptionable proposition. Cage,
supra, at 41, distinguished. Moreover, the instruction defined a reason-
able doubt alternatively as a doubt that would cause a reasonable person
to hesitate to act, a formulation which this Court has repeatedly ap-
proved and which gives a commonsense benchmark for just how sub-
stantial a reasonable doubt must be. Pp. 19Â21.
(g) The inclusion of the "moral certainty" phrase in the Victor charge
did not render the instruction unconstitutional. In contrast to the situ-
ation in Cage, a sufficient context to lend meaning to the phrase was
provided by the rest of the Victor charge, which equated a doubt suffi-
cient to preclude moral certainty with a doubt that would cause a rea-
sonable person to hesitate to act, and told the jurors that they must
have an abiding conviction of Victor's guilt, must be convinced of such
guilt "after full, fair, and impartial consideration of all the evidence,"
should be governed solely by that evidence in determining factual is-
sues, and should not indulge in speculation, conjectures, or unsupported
inferences. Pp. 21Â22.
(h) The reference to "strong probabilities" in the Victor charge does
not unconstitutionally understate the government's burden, since the
charge also informs the jury that the probabilities must be strong
enough to prove guilt beyond a reasonable doubt. See Dunbar v.
United States, 156 U. S. 185, 199. P. 22.
No. 92Â8894, 242 Neb. 306, 494 N. W. 2d 565, and No. 92Â9049, 4 Cal. 4th
155, 841 P. 2d 862, affirmed.
O'Connor, J., delivered the opinion for a unanimous Court with respect
to Part II, and the opinion of the Court with respect to Parts I, III, and
IV, in which Rehnquist, C. J., and Stevens, Scalia, Kennedy, and
511us1$30Z 11-03-97 16:58:40 PAGES OPINPGT
4 VICTOR v. NEBRASKA
Syllabus
Thomas, JJ., joined in full and in which Ginsburg, J., joined as to Parts
IIIÂB and IV. Kennedy, J., filed a concurring opinion, post, p. 23. Gins-
burg, J., filed an opinion concurring in part and concurring in the judg-
ment, post, p. 23. Blackmun, J., filed an opinion concurring in part and
dissenting in part, in all but Part II of which Souter, J., joined, post,
p. 28.
Mark A. Weber argued the cause and filed briefs for peti-
tioner in No. 92Â8894. Eric S. Multhaup, by appointment
of the Court, 510 U. S. 942, argued the cause for petitioner in
No. 92Â9049. With him on the briefs was Kathy M. Chavez.
Don Stenberg, Attorney General of Nebraska, argued the
cause for respondent in No. 92Â8894. With him on the brief
was J. Kirk Brown, Assistant Attorney General. Daniel E.
Lungren, Attorney General of California, argued the cause
for respondent in No. 92Â9049. With him on the brief were
George Williamson, Chief Assistant Attorney General,
Carol Wendelin Pollack, Senior Assistant Attorney General,
and Susan Lee Frierson, Sharlene A. Honnaka, Donald E.
De Nicola, and Sharon Wooden Richard, Deputy Attorneys
General.
Briefs of amici curiae urging affirmance in both cases were filed for
the United States by Solicitor General Days, Assistant Attorney General
Harris, Deputy Solicitor General Bryson, and Paul J. Larkin, Jr.; and
for the Criminal Justice Legal Foundation by Kent S. Scheidegger and
Charles L. Hobson.
Briefs of amici curiae urging affirmance in No. 92Â9049 were filed for
the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attor-
ney General of Massachusetts, and Pamela L. Hunt and Gregory I. Mass-
ing, Assistant Attorneys General, and by the Attorneys General for their
respective jurisdictions as follows: James H. Evans of Alabama, Larry
EchoHawk of Idaho, Pamela Carter of Indiana, Jeremiah W. (Jay) Nixon
of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of
Nevada, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Theo-
dore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, T.
Travis Medlock of South Carolina, Charles W. Burson of Tennessee, and
Elizabeth Barrett-Anderson of Guam; and for the California District At-
torneys' Association by Gil Garcetti and Brent Riggs.
511us1$30J 11-03-97 16:58:40 PAGES OPINPGT
Cite as: 511 U. S. 1 (1994) 5
Opinion of the Court
Justice O'Connor delivered the opinion of the Court.*
The government must prove beyond a reasonable doubt
every element of a charged offense. In re Winship, 397 U. S.
358 (1970). Although this standard is an ancient and hon-
ored aspect of our criminal justice system, it defies easy ex-
plication. In these cases, we consider the constitutionality
of two attempts to define "reasonable doubt."
I
The beyond a reasonable doubt standard is a requirement
of due process, but the Constitution neither prohibits trial
courts from defining reasonable doubt nor requires them to
do so as a matter of course. Cf. Hopt v. Utah, 120 U. S. 430,
440Â441 (1887). Indeed, so long as the court instructs the
jury on the necessity that the defendant's guilt be proved
beyond a reasonable doubt, see Jackson v. Virginia, 443 U. S.
307, 320, n. 14 (1979), the Constitution does not require that
any particular form of words be used in advising the jury of
the government's burden of proof. Cf. Taylor v. Kentucky,
436 U. S. 478, 485Â486 (1978). Rather, "taken as a whole,
the instructions [must] correctly conve[y] the concept of rea-
sonable doubt to the jury." Holland v. United States, 348
U. S. 121, 140 (1954).
In only one case have we held that a definition of reason-
able doubt violated the Due Process Clause. Cage v. Louisi-
ana, 498 U. S. 39 (1990) (per curiam). There, the jurors
were told:
" `[A reasonable doubt] is one that is founded upon a real
tangible substantial basis and not upon mere caprice and
conjecture. It must be such doubt as would give rise
to a grave uncertainty, raised in your mind by reasons
of the unsatisfactory character of the evidence or lack
thereof. A reasonable doubt is not a mere possible
*Justices Blackmun and Souter join only Part II of this opinion.
Justice Ginsburg joins only Parts II, IIIÂB, and IV.
511us1$30J 11-03-97 16:58:40 PAGES OPINPGT
6 VICTOR v. NEBRASKA
Opinion of the Court
doubt. It is an actual substantial doubt. It is a doubt
that a reasonable man can seriously entertain. What is
required is not an absolute or mathematical certainty,
but a moral certainty.' " Id., at 40 (emphasis added by
this Court in Cage).
We held that the highlighted portions of the instruction
rendered it unconstitutional:
"It is plain to us that the words `substantial' and `grave,'
as they are commonly understood, suggest a higher de-
gree of doubt than is required for acquittal under the
reasonable doubt standard. When those statements are
then considered with the reference to `moral certainty,'
rather than evidentiary certainty, it becomes clear that
a reasonable juror could have interpreted the instruc-
tion to allow a finding of guilt based on a degree of proof
below that required by the Due Process Clause." Id.,
at 41.
In a subsequent case, we made clear that the proper in-
quiry is not whether the instruction "could have" been ap-
plied in an unconstitutional manner, but whether there is a
reasonable likelihood that the jury did so apply it. Estelle
v. McGuire, 502 U. S. 62, 72, and n. 4 (1991). The constitu-
tional question in the present cases, therefore, is whether
there is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to
meet the Winship standard. Although other courts have
held that instructions similar to those given at petitioners'
trials violate the Due Process Clause, see State v. Bryant,
334 N. C. 333, 432 S. E. 2d 291 (1993), cert. pending, No.
93Â753; Morley v. Stenberg, 828 F. Supp. 1413 (Neb. 1993),
both the Nebraska and the California Supreme Courts held
that the instructions were constitutional. We granted cer-
tiorari, 509 U. S. 954 (1993), and now affirm both judgments.
511us1$30J 11-03-97 16:58:40 PAGES OPINPGT
Cite as: 511 U. S. 1 (1994) 7
Opinion of the Court
II
On October 14, 1984, petitioner Sandoval shot three men,
two of them fatally, in a gang-related incident in Los
Angeles. About two weeks later, he entered the home of a
man who had given information to the police about the mur-
ders and shot him dead; Sandoval then killed the man's wife
because she had seen him murder her husband. Sandoval
was convicted on four counts of first degree murder. The
jury found that Sandoval personally used a firearm in the
commission of each offense, and found the special circum-
stance of multiple murder. Cal. Penal Code Ann. § 12022.5
(West 1992) and Cal. Penal Code Ann. § 190.2(a)(3) (West
1988). He was sentenced to death for murdering the woman
and to life in prison without possibility of parole for the other
three murders. The California Supreme Court affirmed the
convictions and sentences. 4 Cal. 4th 155, 841 P. 2d 862
(1992).
The jury in Sandoval's case was given the following in-
struction on the government's burden of proof:
"A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of a
reasonable doubt whether his guilt is satisfactorily
shown, he is entitled to a verdict of not guilty. This
presumption places upon the State the burden of prov-
ing him guilty beyond a reasonable doubt.
"Reasonable doubt is defined as follows: It is not a
mere possible doubt; because everything relating to
human affairs, and depending on moral evidence, is open
to some possible or imaginary doubt. It is that state of
the case which, after the entire comparison and consid-
eration of all the evidence, leaves the minds of the jurors
in that condition that they cannot say they feel an abid-
ing conviction, to a moral certainty, of the truth of the
charge." App. in No. 92Â9049, p. 49 (emphasis added)
(Sandoval App.).
511us1$30J 11-03-97 16:58:40 PAGES OPINPGT
8 VICTOR v. NEBRASKA
Opinion of the Court
The California Supreme Court rejected Sandoval's claim that
the instruction, particularly the highlighted passages, vio-
lated the Due Process Clause. 4 Cal. 4th, at 185Â186, 841
P. 2d, at 878.
The instruction given in Sandoval's case has its genesis in
a charge given by Chief Justice Shaw of the Massachusetts
Supreme Judicial Court more than a century ago:
"[W]hat is reasonable doubt? It is a term often used,
probably pretty well understood, but not easily defined.
It is not mere possible doubt; because every thing relat-
ing to human affairs, and depending on moral evidence,
is open to some possible or imaginary doubt. It is that
state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of ju-
rors in that condition that they cannot say they feel an
abiding conviction, to a moral certainty, of the truth of
the charge. The burden of proof is upon the prosecutor.
All the presumptions of law independent of evidence are
in favor of innocence; and every person is presumed to
be innocent until he is proved guilty. If upon such proof
there is reasonable doubt remaining, the accused is enti-
tled to the benefit of it by an acquittal. For it is not
sufficient to establish a probability, though a strong one
arising from the doctrine of chances, that the fact
charged is more likely to be true than the contrary; but
the evidence must establish the truth of the fact to a
reasonable and moral certainty; a certainty that con-
vinces and directs the understanding, and satisfies the
reason and judgment, of those who are bound to act
conscientiously upon it. This we take to be proof be-
yond reasonable doubt." Commonwealth v. Webster, 59
Mass. 295, 320 (1850).
The Webster charge is representative of the time when
"American courts began applying [the beyond a reasonable
doubt standard] in its modern form in criminal cases." Apo-
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Opinion of the Court
daca v. Oregon, 406 U. S. 404, 412, n. 6 (1972) (plurality opin-
ion). See also Perovich v. United States, 205 U. S. 86, 92
(1907) (approving Webster charge). In People v. Strong, 30
Cal. 151, 155 (1866), the California Supreme Court character-
ized the Webster instruction as "probably the most satisfac-
tory definition ever given to the words `reasonable doubt'
in any case known to criminal jurisprudence." In People v.
Paulsell, 115 Cal. 6, 12, 46 P. 734 (1896), the court cautioned
state trial judges against departing from that formulation.
And in 1927, the state legislature adopted the bulk of the
Webster instruction as a statutory definition of reasonable
doubt. Cal. Penal Code Ann. § 1096 (West 1985); see Califor-
nia Jury Instructions, Criminal, No. 2.90 (4th ed. 1979). In-
deed, the California Legislature has directed that "the court
may read to the jury section 1096 of this code, and no further
instruction on the subject of the presumption of innocence
or defining reasonable doubt need be given." § 1096a. The
statutory instruction was given in Sandoval's case.
The California instruction was criticized in People v. Brig-
ham, 25 Cal. 3d 283, 292Â316, 599 P. 2d 100, 106Â121 (1979)
(Mosk, J., concurring). Justice Mosk apparently did not
think the instruction was unconstitutional, but he "urge[d]
the Legislature to reconsider its codification." Id., at 293,
599 P. 2d, at 106. The California Assembly and Senate re-
sponded by requesting the committee on jury instructions of
the Los Angeles Superior Court "to study alternatives to
the definition of `reasonable doubt' set forth in Section 1096
of the Penal Code, and to report its findings and recommen-
dations to the Legislature." Cal. Assem. Con. Res. No. 148,
1986 Cal. Stats. 5634. The committee recommended that
the legislature retain the statutory definition unmodified, see
Alternative Definitions of Reasonable Doubt: A Report of
the Committee on Standard Jury Instructions-Criminal to
the California Legislature (May 22, 1987), and § 1096 has not
been changed.
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10 VICTOR v. NEBRASKA
Opinion of the Court
A
Sandoval's primary objection is to the use of the phrases
"moral evidence" and "moral certainty" in the instruction.
As noted, this part of the charge was lifted verbatim from
Chief Justice Shaw's Webster decision; some understand-
ing of the historical context in which that instruction was
written is accordingly helpful in evaluating its continuing
validity.
By the beginning of the Republic, lawyers had borrowed
the concept of "moral evidence" from the philosophers and
historians of the 17th and 18th centuries. See generally B.
Shapiro, "Beyond Reasonable Doubt" and "Probable Cause":
Historical Perspectives on the Anglo-American Law of Evi-
dence, ch. 1 (1991). James Wilson, who was instrumental in
framing the Constitution and who served as one of the origi-
nal Members of this Court, explained in a 1790 lecture on
law that "evidence . . . is divided into two species-demon-
strative and moral." 1 Works of James Wilson 518 (J. An-
drews ed. 1896). Wilson went on to explain the distinction
thus:
"Demonstrative evidence has for its subject abstract
and necessary truths, or the unchangeable relations of
ideas. Moral evidence has for its subject the real but
contingent truths and connections, which take place
among things actually existing. . . .
. . . . .
"In moral evidence, there not only may be, but there
generally is, contrariety of proofs: in demonstrative evi-
dence, no such contrariety can take place. . . . [T]o sup-
pose that two contrary demonstrations can exist, is to
suppose that the same proposition is both true and false:
which is manifestly absurd. With regard to moral evi-
dence, there is, for the most part, real evidence on both
sides. On both sides, contrary presumptions, contrary
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Opinion of the Court
testimonies, contrary experiences must be balanced."
Id., at 518Â519.
A leading 19th century treatise observed that "[m]atters of
fact are proved by moral evidence alone; . . . [i]n the ordinary
affairs of life, we do not require demonstrative evidence, . . .
and to insist upon it would be unreasonable and absurd." 1
S. Greenleaf, Law of Evidence 3Â4 (13th ed. 1876).
The phrase "moral certainty" shares an epistemological
pedigree with moral evidence. See generally Shapiro, "To
A Moral Certainty": Theories of Knowledge and Anglo-
American Juries 1600Â1850, 38 Hastings L. J. 153 (1986).
Moral certainty was the highest degree of certitude based on
such evidence. In his 1790 lecture, James Wilson observed:
"In a series of moral evidence, the inference drawn in
the several steps is not necessary; nor is it impossible
that the premises should be true, while the conclusion
drawn from them is false.
". . . In moral evidence, we rise, by an insensible
gradation, from possibility to probability, and from
probability to the highest degree of moral certainty."
1 Works of James Wilson, supra, at 519.
At least one early treatise explicitly equated moral certainty
with proof beyond a reasonable doubt:
"Evidence which satisfies the minds of the jury of the
truth of the fact in dispute, to the entire exclusion of
every reasonable doubt, constitutes full proof of the
fact. . . .
"Even the most direct evidence can produce nothing
more than such a high degree of probability as amounts
to moral certainty. From the highest degree it may
decline, by an infinite number of gradations, until
it produce in the mind nothing more than a mere pre-
ponderance of assent in favour of the particular fact."
T. Starkie, Law of Evidence 478 (2d ed. 1833).
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12 VICTOR v. NEBRASKA
Opinion of the Court
See also Greenleaf, supra, at 4 ("The most that can be af-
firmed of [things proved by moral evidence] is, that there is
no reasonable doubt concerning them").
Thus, when Chief Justice Shaw penned the Webster in-
struction in 1850, moral certainty meant a state of subjective
certitude about some event or occurrence. As the Massa-
chusetts Supreme Judicial Court subsequently explained:
"Proof `beyond a reasonable doubt' . . . is proof `to a
moral certainty,' as distinguished from an absolute cer-
tainty. As applied to a judicial trial for crime, the two
phrases are synonymous and equivalent; each has been
used by eminent judges to explain the other; and each
signifies such proof as satisfies the judgment and con-
sciences of the jury, as reasonable men, and applying
their reason to the evidence before them, that the crime
charged has been committed by the defendant, and so
satisfies them as to leave no other reasonable conclusion
possible." Commonwealth v. Costley, 118 Mass. 1, 24
(1875).
Indeed, we have said that "[p]roof to a `moral certainty'
is an equivalent phrase with `beyond a reasonable doubt.' "
Fidelity Mut. Life Assn. v. Mettler, 185 U. S. 308, 317 (1902),
citing Commonwealth v. Costley, supra. See also Wilson v.
United States, 232 U. S. 563, 570 (1914) (approving reason-
able doubt instruction cast in terms of moral certainty);
Miles v. United States, 103 U. S. 304, 309, 312 (1881).
We recognize that the phrase "moral evidence" is not a
mainstay of the modern lexicon, though we do not think it
means anything different today than it did in the 19th cen-
tury. The few contemporary dictionaries that define moral
evidence do so consistently with its original meaning. See,
e. g., Webster's New Twentieth Century Dictionary 1168 (2d
ed. 1979) ("based on general observation of people, etc.
rather than on what is demonstrable"); Collins English Dic-
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Opinion of the Court
tionary 1014 (3d ed. 1991) (similar); 9 Oxford English Diction-
ary 1070 (2d ed. 1989) (similar).
Moreover, the instruction itself gives a definition of the
phrase. The jury was told that "everything relating to
human affairs, and depending on moral evidence, is open to
some possible or imaginary doubt"-in other words, that ab-
solute certainty is unattainable in matters relating to human
affairs. Moral evidence, in this sentence, can only mean em-
pirical evidence offered to prove such matters-the proof in-
troduced at trial.
This conclusion is reinforced by other instructions given
in Sandoval's case. The judge informed the jurors that their
duty was "to determine the facts of the case from the evi-
dence received in the trial and not from any other source."
Sandoval App. 38. The judge continued: "Evidence consists
of testimony of witnesses, writings, material objects, or any-
thing presented to the senses and offered to prove the exist-
ence or non-existence of a fact." Id., at 40. The judge also
told the jurors that "you must not be influenced by pity for
a defendant or by prejudice against him," and that "[y]ou
must not be swayed by mere sentiment, conjecture, sympa-
thy, passion, prejudice, public opinion or public feeling."
Id., at 39. These instructions correctly pointed the jurors'
attention to the facts of the case before them, not (as Sando-
val contends) the ethics or morality of Sandoval's criminal
acts. Accordingly, we find the reference to moral evidence
unproblematic.
We are somewhat more concerned with Sandoval's argu-
ment that the phrase "moral certainty" has lost its historical
meaning, and that a modern jury would understand it to
allow conviction on proof that does not meet the beyond a
reasonable doubt standard. Words and phrases can change
meaning over time: A passage generally understood in 1850
may be incomprehensible or confusing to a modern juror.
And although some contemporary dictionaries contain defi-
nitions of moral certainty similar to the 19th century under-
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14 VICTOR v. NEBRASKA
Opinion of the Court
standing of the phrase, see Webster's Third New Inter-
national Dictionary 1468 (1981) ("virtual rather than act-
ual, immediate, or completely demonstrable"); 9 Oxford Eng-
lish Dictionary, supra, at 1070 ("a degree of probability so
great as to admit of no reasonable doubt"), we are willing to
accept Sandoval's premise that "moral certainty," standing
alone, might not be recognized by modern jurors as a syn-
onym for "proof beyond a reasonable doubt." But it does
not necessarily follow that the California instruction is
unconstitutional.
Sandoval first argues that moral certainty would be under-
stood by modern jurors to mean a standard of proof lower
than beyond a reasonable doubt. In support of this proposi-
tion, Sandoval points to contemporary dictionaries that de-
fine moral certainty in terms of probability. E. g., Webster's
New Twentieth Century Dictionary, supra, at 1168 ("based
on strong probability"); Random House Dictionary of the
English Language 1249 (2d ed. 1983) ("resting upon convinc-
ing grounds of probability"). But the beyond a reasonable
doubt standard is itself probabilistic. "[I]n a judicial pro-
ceeding in which there is a dispute about the facts of some
earlier event, the factfinder cannot acquire unassailably accu-
rate knowledge of what happened. Instead, all the fact-
finder can acquire is a belief of what probably happened."
In re Winship, 397 U. S., at 370 (Harlan, J., concurring) (em-
phasis in original). The problem is not that moral certainty
may be understood in terms of probability, but that a jury
might understand the phrase to mean something less than
the very high level of probability required by the Constitu-
tion in criminal cases.
Although in this respect moral certainty is ambiguous in
the abstract, the rest of the instruction given in Sandoval's
case lends content to the phrase. The jurors were told that
they must have "an abiding conviction, to a moral certainty,
of the truth of the charge." Sandoval App. 49. An instruc-
tion cast in terms of an abiding conviction as to guilt, without
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Opinion of the Court
reference to moral certainty, correctly states the govern-
ment's burden of proof. Hopt v. Utah, 120 U. S., at 439
("The word `abiding' here has the signification of settled and
fixed, a conviction which may follow a careful examination
and comparison of the whole evidence"); see Criminal Jury
Instructions: District of Columbia 46 (3d H. Greene & T.
Guidoboni ed. 1978). And the judge had already informed
the jury that matters relating to human affairs are proved
by moral evidence, see supra, at 13; giving the same meaning
to the word moral in this part of the instruction, moral cer-
tainty can only mean certainty with respect to human affairs.
As used in this instruction, therefore, we are satisfied that
the reference to moral certainty, in conjunction with the
abiding conviction language, "impress[ed] upon the factfinder
the need to reach a subjective state of near certitude of the
guilt of the accused." Jackson v. Virginia, 443 U. S., at 315.
Accordingly, we reject Sandoval's contention that the moral
certainty element of the California instruction invited the
jury to convict him on proof below that required by the Due
Process Clause.
Sandoval's second argument is a variant of the first. Ac-
cepting that the instruction requires a high level of confi-
dence in the defendant's guilt, Sandoval argues that a juror
might be convinced to a moral certainty that the defendant
is guilty even though the government has failed to prove
his guilt beyond a reasonable doubt. A definition of moral
certainty in a widely used modern dictionary lends support
to this argument, see American Heritage Dictionary 1173 (3d
ed. 1992) ("Based on strong likelihood or firm conviction,
rather than on the actual evidence"), and we do not gainsay
its force. As we have noted, "[t]he constitutional standard
recognized in the Winship case was expressly phrased as one
that protects an accused against a conviction except on `proof
beyond a reasonable doubt.' " Jackson v. Virginia, supra,
at 315 (emphasis in original). Indeed, in Cage we contrasted
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16 VICTOR v. NEBRASKA
Opinion of the Court
"moral certainty" with "evidentiary certainty." 498 U. S.,
at 41.
But the moral certainty language cannot be sequestered
from its surroundings. In the Cage instruction, the jurors
were simply told that they had to be morally certain of the
defendant's guilt; there was nothing else in the instruction
to lend meaning to the phrase. Not so here. The jury in
Sandoval's case was told that a reasonable doubt is "that
state of the case which, after the entire comparison and con-
sideration of all the evidence, leaves the minds of the jurors
in that condition that they cannot say they feel an abiding
conviction, to a moral certainty, of the truth of the charge."
Sandoval App. 49 (emphasis added). The instruction thus
explicitly told the jurors that their conclusion had to be based
on the evidence in the case. Other instructions reinforced
this message. The jury was told "to determine the facts of
the case from the evidence received in the trial and not from
any other source." Id., at 38. The judge continued that
"you must not be influenced by pity for a defendant or by
prejudice against him. . . . You must not be swayed by mere
sentiment, conjecture, sympathy, passion, prejudice, public
opinion or public feeling." Id., at 39. Accordingly, there is
no reasonable likelihood that the jury would have understood
moral certainty to be disassociated from the evidence in the
case.
We do not think it reasonably likely that the jury under-
stood the words "moral certainty" either as suggesting a
standard of proof lower than due process requires or as
allowing conviction on factors other than the government's
proof. At the same time, however, we do not condone the
use of the phrase. As modern dictionary definitions of
moral certainty attest, the common meaning of the phrase
has changed since it was used in the Webster instruction, and
it may continue to do so to the point that it conflicts with
the Winship standard. Indeed, the definitions of reasonable
doubt most widely used in the federal courts do not contain
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Opinion of the Court
any reference to moral certainty. See Federal Judicial Cen-
ter, Pattern Criminal Jury Instructions 28 (1988); 1 E. Dev-
itt & C. Blackmar, Federal Jury Practice and Instructions
§ 11.14 (3d ed. 1977). But we have no supervisory power
over the state courts, and in the context of the instructions
as a whole we cannot say that the use of the phrase rendered
the instruction given in Sandoval's case unconstitutional.
B
Finally, Sandoval objects to the portion of the charge in
which the judge instructed the jury that a reasonable doubt
is "not a mere possible doubt." The Cage instruction in-
cluded an almost identical reference to "not a mere possible
doubt," but we did not intimate that there was anything
wrong with that part of the charge. See 498 U. S., at 40.
That is because "[a] `reasonable doubt,' at a minimum, is one
based upon `reason.' " Jackson v. Virginia, supra, at 317.
A fanciful doubt is not a reasonable doubt. As Sandoval's
defense attorney told the jury: "Anything can be possible
. . . . [A] planet could be made out of blue cheese. But that's
really not in the realm of what we're talking about." Sando-
val App. 79 (excerpt from closing argument). That this is
the sense in which the instruction uses "possible" is made
clear from the final phrase of the sentence, which notes that
everything "is open to some possible or imaginary doubt."
We therefore reject Sandoval's challenge to this portion of
the instruction as well.
III
On December 26, 1987, petitioner Victor went to the
Omaha home of an 82-year-old woman for whom he occasion-
ally did gardening work. Once inside, he beat her with a
pipe and cut her throat with a knife, killing her. Victor was
convicted of first degree murder. A three-judge panel found
the statutory aggravating circumstances that Victor had
previously been convicted of murder, Neb. Rev. Stat. § 29Â
2523(1)(a) (1989), and that the murder in this case was espe-
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18 VICTOR v. NEBRASKA
Opinion of the Court
cially heinous, atrocious, and cruel, § 29Â2523(1)(d). Finding
none of the statutory mitigating circumstances, the panel
sentenced Victor to death. The Nebraska Supreme Court
affirmed the conviction and sentence. State v. Victor, 235
Neb. 770, 457 N. W. 2d 431 (1990), cert. denied, 498 U. S.
1127 (1991).
At Victor's trial, the judge instructed the jury that "[t]he
burden is always on the State to prove beyond a reasonable
doubt all of the material elements of the crime charged, and
this burden never shifts." App. in No. 92Â8894, p. 8 (Victor
App.). The charge continued:
" `Reasonable doubt' is such a doubt as would cause a
reasonable and prudent person, in one of the graver and
more important transactions of life, to pause and hesi-
tate before taking the represented facts as true and re-
lying and acting thereon. It is such a doubt as will not
permit you, after full, fair, and impartial consideration
of all the evidence, to have an abiding conviction, to a
moral certainty, of the guilt of the accused. At the
same time, absolute or mathematical certainty is not re-
quired. You may be convinced of the truth of a fact
beyond a reasonable doubt and yet be fully aware that
possibly you may be mistaken. You may find an ac-
cused guilty upon the strong probabilities of the case,
provided such probabilities are strong enough to exclude
any doubt of his guilt that is reasonable. A reasonable
doubt is an actual and substantial doubt reasonably
arising from the evidence, from the facts or circum-
stances shown by the evidence, or from the lack of evi-
dence on the part of the State, as distinguished from a
doubt arising from mere possibility, from bare imagina-
tion, or from fanciful conjecture." Id., at 11 (emphasis
added).
On state postconviction review, the Nebraska Supreme
Court rejected Victor's contention that the instruction, par-
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Opinion of the Court
ticularly the emphasized phrases, violated the Due Process
Clause. 242 Neb. 306, 310Â311, 494 N. W. 2d 565, 569 (1993).
Because the last state court in which review could be had
considered Victor's constitutional claim on the merits, it is
properly presented for our review despite Victor's failure to
object to the instruction at trial or raise the issue on direct
appeal. See, e. g., Ylst v. Nunnemaker, 501 U. S. 797, 801
(1991).
The instruction given in Victor's case can be traced to
two separate lines of cases. Much of the charge is taken
from Chief Justice Shaw's Webster instruction. See Carr
v. State, 23 Neb. 749, 752Â753, 37 N. W. 630, 631Â632 (1888)
(approving the use of Webster). The rest derives from a
series of decisions approving instructions cast in terms of
an "actual doubt" that would cause a reasonable person to
hesitate to act. See, e. g., Whitney v. State, 53 Neb. 287,
298, 73 N. W. 696, 699 (1898); Willis v. State, 43 Neb. 102,
110Â111, 61 N. W. 254, 256 (1894); Polin v. State, 14 Neb.
540, 546Â547, 16 N. W. 898, 900Â901 (1883). In 1968, a
committee appointed by the Nebraska Supreme Court devel-
oped model jury instructions; a court rule in effect at the
time Victor was tried directed that those instructions were
to be used where applicable. Nebraska Jury Instructions ix
(1969) (N. J. I.). The model instruction on reasonable doubt,
N. J. I. 14.08, is the one given at Victor's trial. (Since Victor
was tried, a revised reasonable doubt instruction, N. J. I. 2d
Crim. 2.0 (1992), has been adopted, although the prior ver-
sion may still be used.)
A
Victor's primary argument is that equating a reasonable
doubt with a "substantial doubt" overstated the degree of
doubt necessary for acquittal. We agree that this construc-
tion is somewhat problematic. On the one hand, "substan-
tial" means "not seeming or imaginary"; on the other, it
means "that specified to a large degree." Webster's Third
New International Dictionary, at 2280. The former is un-
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20 VICTOR v. NEBRASKA
Opinion of the Court
exceptionable, as it informs the jury only that a reasonable
doubt is something more than a speculative one; but the lat-
ter could imply a doubt greater than required for acquittal
under Winship. Any ambiguity, however, is removed by
reading the phrase in the context of the sentence in which it
appears: "A reasonable doubt is an actual and substantial
doubt . . . as distinguished from a doubt arising from mere
possibility, from bare imagination, or from fanciful conjec-
ture." Victor App. 11 (emphasis added).
This explicit distinction between a substantial doubt and
a fanciful conjecture was not present in the Cage instruction.
We did say in that case that "the words `substantial' and
`grave,' as they are commonly understood, suggest a higher
degree of doubt than is required for acquittal under the rea-
sonable doubt standard." 498 U. S., at 41. But we did not
hold that the reference to substantial doubt alone was suffi-
cient to render the instruction unconstitutional. Cf. Taylor
v. Kentucky, 436 U. S., at 488 (defining reasonable doubt as a
substantial doubt, "though perhaps not in itself reversible
error, often has been criticized as confusing") (emphasis
added). Rather, we were concerned that the jury would
interpret the term "substantial doubt" in parallel with the
preceding reference to "grave uncertainty," leading to an
overstatement of the doubt necessary to acquit. In the
instruction given in Victor's case, the context makes clear
that "substantial" is used in the sense of existence rather
than magnitude of the doubt, so the same concern is not
present.
In any event, the instruction provided an alternative defi-
nition of reasonable doubt: a doubt that would cause a rea-
sonable person to hesitate to act. This is a formulation we
have repeatedly approved, Holland v. United States, 348
U. S., at 140; cf. Hopt v. Utah, 120 U. S., at 439Â441, and to
the extent the word "substantial" denotes the quantum of
doubt necessary for acquittal, the hesitate to act standard
gives a commonsense benchmark for just how substantial
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Opinion of the Court
such a doubt must be. We therefore do not think it reason-
ably likely that the jury would have interpreted this instruc-
tion to indicate that the doubt must be anything other than
a reasonable one.
B
Victor also challenges the "moral certainty" portion of the
instruction. In another case involving an identical instruc-
tion, the Nebraska Supreme Court distinguished Cage as fol-
lows: "[U]nder the Cage instruction a juror is to vote for
conviction unless convinced to a moral certainty that there
exists a reasonable doubt, whereas under the questioned in-
struction a juror is to vote for acquittal unless convinced to
a moral certainty that no reasonable doubt exists." State v.
Morley, 239 Neb. 141, 155, 474 N. W. 2d 660, 670 (1991); see
also 242 Neb., at 310Â311, 494 N. W. 2d, at 569 (relying on
Morley). We disagree with this reading of Cage. The
moral certainty to which the Cage instruction referred was
clearly related to the defendant's guilt; the problem in Cage
was that the rest of the instruction provided insufficient con-
text to lend meaning to the phrase. But the Nebraska in-
struction is not similarly deficient.
Instructing the jurors that they must have an abiding con-
viction of the defendant's guilt does much to alleviate any
concerns that the phrase "moral certainty" might be misun-
derstood in the abstract. See supra, at 14Â15. The instruc-
tion also equated a doubt sufficient to preclude moral cer-
tainty with a doubt that would cause a reasonable person to
hesitate to act. In other words, a juror morally certain of a
fact would not hesitate to rely on it; and such a fact can fairly
be said to have been proved beyond a reasonable doubt. Cf.
Hopt v. Utah, supra, at 439Â440. The jurors were told that
they must be convinced of Victor's guilt "after full, fair, and
impartial consideration of all the evidence." Victor App. 11.
The judge also told them: "In determining any questions of
fact presented in this case, you should be governed solely by
the evidence introduced before you. You should not indulge
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22 VICTOR v. NEBRASKA
Opinion of the Court
in speculation, conjectures, or inferences not supported by
the evidence." Id., at 2. There is accordingly no reason-
able likelihood that the jurors understood the reference to
moral certainty to allow conviction on a standard insufficient
to satisy Winship, or to allow conviction on factors other
than the government's proof. Though we reiterate that we
do not countenance its use, the inclusion of the "moral cer-
tainty" phrase did not render the instruction given in Vic-
tor's case unconstitutional. C
Finally, Victor argues that the reference to "strong proba-
bilities" in the instruction unconstitutionally understated the
government's burden. But in the same sentence, the in-
struction informs the jury that the probabilities must be
strong enough to prove the defendant's guilt beyond a rea-
sonable doubt. We upheld a nearly identical instruction in
Dunbar v. United States, 156 U. S. 185, 199 (1895): "While
it is true that [the challenged instruction] used the words
`probabilities' and `strong probabilities,' yet it emphasized
the fact that those probabilities must be so strong as to ex-
clude any reasonable doubt, and that is unquestionably the
law" (citing Hopt v. Utah, supra, at 439). That conclusion
has lost no force in the course of a century, and we therefore
consider Dunbar controlling on this point.
IV
The Due Process Clause requires the government to prove
a criminal defendant's guilt beyond a reasonable doubt, and
trial courts must avoid defining reasonable doubt so as to
lead the jury to convict on a lesser showing than due process
requires. In these cases, however, we conclude that "taken
as a whole, the instructions correctly conveyed the concept
of reasonable doubt to the jury." Holland v. United States,
supra, at 140. There is no reasonable likelihood that the
jurors who determined petitioners' guilt applied the instruc-
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Cite as: 511 U. S. 1 (1994) 23
Opinion of Ginsburg, J.
tions in a way that violated the Constitution. The judg-
ments in both cases are accordingly
Affirmed.
Justice Kennedy, concurring.
It was commendable for Chief Justice Shaw to pen an
instruction that survived more than a century, but, as the
Court makes clear, what once might have made sense to
jurors has long since become archaic. In fact, some of the
phrases here in question confuse far more than they clarify.
Though the reference to "moral certainty" is not much bet-
ter, California's use of "moral evidence" is the most trou-
bling, and to me seems quite indefensible. The derivation
of the phrase is explained in the Court's opinion, but even
with this help the term is a puzzle. And for jurors who have
not had the benefit of the Court's research, the words will
do nothing but baffle.
I agree that use of "moral evidence" in the California for-
mulation is not fatal to the instruction here. I cannot under-
stand, however, why such an unruly term should be used at
all when jurors are asked to perform a task that can be of
great difficulty even when instructions are altogether clear.
The inclusion of words so malleable, because so obscure,
might in other circumstances have put the whole instruction
at risk.
With this observation, I concur in full in the opinion of
the Court.
Justice Ginsburg, concurring in part and concurring in
the judgment.
I agree with the Court that the reasonable doubt instruc-
tions given in these cases, read as a whole, satisfy the Consti-
tution's due process requirement. As the Court observes,
the instructions adequately conveyed to the jurors that they
should focus exclusively upon the evidence, see ante, at 13,
16, 21Â22, and that they should convict only if they had an
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24 VICTOR v. NEBRASKA
Opinion of Ginsburg, J.
"abiding conviction" of the defendant's guilt, see ante, at
14, 21. I agree, further, with the Court's suggestion that
the term "moral certainty," while not in itself so misleading
as to render the instructions unconstitutional, should be
avoided as an unhelpful way of explaining what reasonable
doubt means. See ante, at 16, 22.
Similarly unhelpful, in my view, are two other features of
the instruction given in Victor's case. That instruction be-
gins by defining reasonable doubt as "such a doubt as would
cause a reasonable and prudent person, in one of the graver
and more important transactions of life, to pause and hesi-
tate before taking the represented facts as true and relying
and acting thereon." App. in No. 92Â8894, p. 11. A com-
mittee of distinguished federal judges, reporting to the Judi-
cial Conference of the United States, has criticized this "hesi-
tate to act" formulation
"because the analogy it uses seems misplaced. In the
decisions people make in the most important of their
own affairs, resolution of conflicts about past events does
not usually play a major role. Indeed, decisions we
make in the most important affairs of our lives-choos-
ing a spouse, a job, a place to live, and the like-gener-
ally involve a very heavy element of uncertainty and
risk-taking. They are wholly unlike the decisions ju-
rors ought to make in criminal cases." Federal Judicial
Center, Pattern Criminal Jury Instructions 18Â19 (1987)
(commentary on instruction 21).
More recently, Second Circuit Chief Judge Jon O. Newman
observed:
"Although, as a district judge, I dutifully repeated [the
`hesitate to act' standard] to juries in scores of criminal
trials, I was always bemused by its ambiguity. If the
jurors encounter a doubt that would cause them to `hesi-
tate to act in a matter of importance,' what are they to
do then? Should they decline to convict because they
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Opinion of Ginsburg, J.
have reached a point of hesitation, or should they simply
hesitate, then ask themselves whether, in their own pri-
vate matters, they would resolve the doubt in favor of
action, and, if so, continue on to convict?" Beyond
"Reasonable Doubt," 68 N. Y. U. L. Rev. 201, 204 (1994)
(James Madison Lecture, delivered at New York Univer-
sity Law School, Nov. 9, 1993).
Even less enlightening than the "hesitate to act" formula-
tion is the passage of the Victor instruction counseling: "[The
jury] may find an accused guilty upon the strong probabilities
of the case, provided such probabilities are strong enough
to exclude any doubt of his guilt that is reasonable." App.
in No. 92Â8894, p. 11. If the italicized words save this part
of the instruction from understating the prosecution's bur-
den of proof, see ante, at 22, they do so with uninstructive
circularity. Jury comprehension is scarcely advanced when
a court "defines" reasonable doubt as "doubt . . . that is
reasonable."
These and similar difficulties have led some courts to ques-
tion the efficacy of any reasonable doubt instruction. At
least two of the Federal Courts of Appeals have admonished
their District Judges not to attempt a definition.* This
Court, too, has suggested on occasion that prevailing defini-
tions of "reasonable doubt" afford no real aid. See, e. g.,
Holland v. United States, 348 U. S. 121, 140 (1954) (" `[a]t-
tempts to explain the term "reasonable doubt" do not usually
result in making it any clearer to the minds of the jury' "),
*See, e. g., United States v. Adkins, 937 F. 2d 947, 950 (CA4 1991) ("This
circuit has repeatedly warned against giving the jury definitions of reason-
able doubt, because definitions tend to impermissibly lessen the burden of
proof. . . . The only exception to our categorical disdain for definition is
when the jury specifically requests it."); United States v. Hall, 854 F. 2d
1036, 1039 (CA7 1988) (upholding District Court's refusal to provide defi-
nition, despite jury's request, because "at best, definitions of reasonable
doubt are unhelpful to a jury . . . . An attempt to define reasonable doubt
presents a risk without any real benefit.").
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26 VICTOR v. NEBRASKA
Opinion of Ginsburg, J.
quoting Miles v. United States, 103 U. S. 304, 312 (1881);
Hopt v. Utah, 120 U. S. 430, 440Â441 (1887) ("The rule may
be, and often is, rendered obscure by attempts at definition,
which serve to create doubts instead of removing them.").
But we have never held that the concept of reasonable doubt
is undefinable, or that trial courts should not, as a matter of
course, provide a definition. Nor, contrary to the Court's
suggestion, see ante, at 5, have we ever held that the Consti-
tution does not require trial courts to define reasonable
doubt.
Because the trial judges in fact defined reasonable doubt
in both jury charges we review, we need not decide whether
the Constitution required them to do so. Whether or not
the Constitution so requires, however, the argument for de-
fining the concept is strong. While judges and lawyers are
familiar with the reasonable doubt standard, the words "be-
yond a reasonable doubt" are not self-defining for jurors.
Several studies of jury behavior have concluded that "jurors
are often confused about the meaning of reasonable doubt"
when that term is left undefined. See Note, Defining Rea-
sonable Doubt, 90 Colum. L. Rev. 1716, 1723 (1990) (citing
studies). Thus, even if definitions of reasonable doubt are
necessarily imperfect, the alternative-refusing to define the
concept at all-is not obviously preferable. Cf. Newman,
supra, at 205Â206 ("I find it rather unsettling that we are
using a formulation that we believe will become less clear
the more we explain it.").
Fortunately, the choice need not be one between two kinds
of potential juror confusion-on one hand, the confusion that
may be caused by leaving "reasonable doubt" undefined, and
on the other, the confusion that might be induced by the
anachronism of "moral certainty," the misplaced analogy of
"hesitation to act," or the circularity of "doubt that is reason-
able." The Federal Judicial Center has proposed a defini-
tion of reasonable doubt that is clear, straightforward, and
accurate. That instruction reads:
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Opinion of Ginsburg, J.
"[T]he government has the burden of proving the de-
fendant guilty beyond a reasonable doubt. Some of you
may have served as jurors in civil cases, where you were
told that it is only necessary to prove that a fact is more
likely true than not true. In criminal cases, the govern-
ment's proof must be more powerful than that. It must
be beyond a reasonable doubt.
"Proof beyond a reasonable doubt is proof that leaves
you firmly convinced of the defendant's guilt. There
are very few things in this world that we know with
absolute certainty, and in criminal cases the law does
not require proof that overcomes every possible doubt.
If, based on your consideration of the evidence, you are
firmly convinced that the defendant is guilty of the
crime charged, you must find him guilty. If on the
other hand, you think there is a real possibility that he
is not guilty, you must give him the benefit of the doubt
and find him not guilty." Federal Judicial Center, Pat-
tern Criminal Jury Instructions, at 17Â18 (instruction
21).
This instruction plainly informs the jurors that the prosecu-
tion must prove its case by more than a mere preponderance
of the evidence, yet not necessarily to an absolute certainty.
The "firmly convinced" standard for conviction, repeated for
emphasis, is further enhanced by the juxtaposed prescription
that the jury must acquit if there is a "real possibility" that
the defendant is innocent. This model instruction surpasses
others I have seen in stating the reasonable doubt standard
succinctly and comprehensibly.
I recognize, however, that this Court has no supervisory
powers over the state courts, see ante, at 17, and that the
test we properly apply in evaluating the constitutionality of
a reasonable doubt instruction is not whether we find it ex-
emplary; instead, we inquire only whether there is a "reason-
able likelihood that the jury understood the instructio[n] to
allow conviction based on proof insufficient to meet" the rea-
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28 VICTOR v. NEBRASKA
Opinion of Blackmun, J.
sonable doubt standard. See ante, at 6. On that under-
standing, I join Parts II, IIIÂB, and IV of the Court's opinion
and concur in its judgment.
Justice Blackmun, with whom Justice Souter joins
in all but Part II, concurring in part and dissenting in part.
In Cage v. Louisiana, 498 U. S. 39 (1990), this Court, by a
per curiam opinion, found a jury instruction defining reason-
able doubt so obviously flawed that the resulting state-court
judgment deserved summary reversal. The majority today
purports to uphold and follow Cage, but plainly falters in its
application of that case. There is no meaningful difference
between the jury instruction delivered at Victor's trial and
the jury instruction issued in Cage, save the fact that the
jury instruction in Victor's case did not contain the two
words "grave uncertainty." But the mere absence of these
two words can be of no help to the State, since there is other
language in the instruction that is equally offensive to due
process. I therefore dissent from the Court's opinion and
judgment in No. 92Â8894, Victor v. Nebraska.
I
Our democracy rests in no small part on our faith in the
ability of the criminal justice system to separate those who
are guilty from those who are not. This is a faith which
springs fundamentally from the requirement that unless
guilt is established beyond all reasonable doubt, the accused
shall go free. It was not until 1970, however, in In re
Winship, 397 U. S. 358, that the Court finally and explicitly
held that "the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged." Id., at 364. In Winship, the Court
recounted the long history of the reasonable-doubt standard,
noting that it "dates at least from our early years as a Na-
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Opinion of Blackmun, J.
tion." Id., at 361. The Court explained that any "society
that values the good name and freedom of every individual
should not condemn a man for commission of a crime when
there is a reasonable doubt about his guilt." Id., at 363Â364.
Despite the inherent appeal of the reasonable-doubt stand-
ard, it provides protection to the innocent only to the extent
that the standard, in reality, is an enforceable rule of law.
To be a meaningful safeguard, the reasonable-doubt standard
must have a tangible meaning that is capable of being under-
stood by those who are required to apply it. It must be
stated accurately and with the precision owed to those whose
liberty or life is at risk. Because of the extraordinarily high
stakes in criminal trials, "[i]t is critical that the moral force
of the criminal law not be diluted by a standard of proof
that leaves people in doubt whether innocent men are being
condemned." Id., at 364.
When reviewing a jury instruction that defines "reason-
able doubt," it is necessary to consider the instruction as a
whole and to give the words their common and ordinary
meaning. Estelle v. McGuire, 502 U. S. 62, 72 (1991). It is
not sufficient for the jury instruction merely to be suscepti-
ble to an interpretation that is technically correct. The im-
portant question is whether there is a "reasonable likelihood"
that the jury was misled or confused by the instruction, and
therefore applied it in a way that violated the Constitution.
Boyde v. California, 494 U. S. 370, 380 (1990). Any jury in-
struction defining "reasonable doubt" that suggests an im-
properly high degree of doubt for acquittal or an improperly
low degree of certainty for conviction offends due process.
Either misstatement of the reasonable-doubt standard is
prejudicial to the defendant, as it "vitiates all the jury's find-
ings," see Sullivan v. Louisiana, 508 U. S. 275, 281 (1993)
(emphasis deleted), and removes the only constitutionally ap-
propriate predicate for the jury's verdict.
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30 VICTOR v. NEBRASKA
Opinion of Blackmun, J.
A
In a Louisiana trial court, Tommy Cage was convicted of
first-degree murder and sentenced to death. On appeal to
the Supreme Court of Louisiana, he argued, among other
things, that the reasonable-doubt instruction used in the
guilt phase of his trial violated the Due Process Clause of
the Fourteenth Amendment. See State v. Cage, 554 So. 2d
39 (1989). The instruction in relevant part provided:
"If you entertain a reasonable doubt as to any fact or
element necessary to constitute the defendant's guilt, it
is your duty to give him the benefit of that doubt and
return a verdict of not guilty. Even where the evidence
demonstrates a probability of guilt, if it does not estab-
lish such guilt beyond a reasonable doubt, you must ac-
quit the accused. This doubt, however, must be a rea-
sonable one; that is one that is founded upon a real
tangible substantial basis and not upon mere caprice and
conjecture. It must be such a doubt as would give rise
to a grave uncertainty, raised in your mind by reasons
of the unsatisfactory character of the evidence or lack
thereof. A reasonable doubt is not a mere possible
doubt. It is an actual substantial doubt. It is a doubt
that a reasonable man can seriously entertain. What is
required is not an absolute or mathematical certainty,
but a moral certainty." Id., at 41 (second emphasis
added; first and third emphases in original).
The Louisiana Supreme Court affirmed Cage's conviction,
reasoning that, although some of the language "might over-
state the requisite degree of uncertainty and confuse the
jury," the charge as a whole was understandable to "reason-
able persons of ordinary intelligence," and therefore consti-
tutional. Ibid.
We granted certiorari and summarily reversed. Cage v.
Louisiana, 498 U. S. 39 (1990). The Court noted that some
of the language in the instruction was adequate, but ruled
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Opinion of Blackmun, J.
that the phrases "actual substantial doubt" and "grave un-
certainty" suggested a "higher degree of doubt than is re-
quired for acquittal under the reasonable-doubt standard,"
and that those phrases taken together with the reference to
"moral certainty," rather than "evidentiary certainty," ren-
dered the instruction as a whole constitutionally defective.
Id., at 41.
Clarence Victor, petitioner in No. 92Â8894, also was con-
victed of first-degree murder and sentenced to death. The
instruction in his case reads as follows:
" `Reasonable doubt' is such a doubt as would cause a
reasonable and prudent person, in one of the graver and
more important transactions of life, to pause and hesi-
tate before taking the represented facts as true and re-
lying and acting thereon. It is such a doubt as will not
permit you, after full, fair, and impartial consideration
of all the evidence, to have an abiding conviction, to a
moral certainty, of the guilt of the accused. At the
same time absolute or mathematical certainty is not re-
quired. You may be convinced of the truth of a fact
beyond a reasonable doubt and yet be fully aware that
possibly you may be mistaken. You may find an ac-
cused guilty upon the strong probabilities of the case,
provided such probabilities are strong enough to exclude
any doubt of his guilt that is reasonable. A reasonable
doubt is an actual and substantial doubt reasonably
arising from the evidence, from the facts or circum-
stances shown by the evidence, or from the lack of evi-
dence on the part of the State, as distinguished from a
doubt arising from mere possibility, from bare imagina-
tion, or from fanciful conjecture." App. in No. 92Â8894,
p. 11 (emphases added).
The majority's attempt to distinguish this instruction from
the one employed in Cage is wholly unpersuasive. Both in-
structions equate "substantial doubt" with reasonable doubt,
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32 VICTOR v. NEBRASKA
Opinion of Blackmun, J.
and refer to "moral certainty" rather than "evidentiary cer-
tainty." And although Victor's instruction does not contain
the phrase "grave uncertainty," the instruction contains lan-
guage that has an equal potential to mislead, including the
invitation to the jury to convict based on the "strong proba-
bilities" of the case and the overt effort to dissuade jurors
from acquitting when they are "fully aware that possibly
they may be mistaken." Nonetheless, the majority argues
that "substantial doubt" has a meaning in Victor's instruc-
tion different from that in Cage's instruction, and that the
"moral certainty" language is sanitized by its context. The
majority's approach seems to me to fail under its own logic.
B
First, the majority concedes, as it must, that equating rea-
sonable doubt with substantial doubt is "somewhat problem-
atic" since one of the common definitions of "substantial" is
" `that specified to a large degree.' " Ante, at 19. But the
majority insists that the jury did not likely interpret the
word "substantial" in this manner because Victor's instruc-
tion, unlike Cage's instruction, used the phrase "substantial
doubt" as a means of distinguishing reasonable doubt from
mere conjecture. According to the majority, "[t]his explicit
distinction between a substantial doubt and a fanciful conjec-
ture was not present in the Cage instruction," and thus, read
in context, the use of "substantial doubt" in Victor's instruc-
tion is less problematic. Ante, at 20.
A casual reading of the Cage instruction reveals the major-
ity's false premise. The Cage instruction plainly states that
a reasonable doubt is a doubt "founded upon a real tangible
substantial basis and not upon mere caprice and conjecture."
See 498 U. S., at 40. The Cage instruction also used the
"substantial doubt" language to distinguish a reasonable
doubt from "a mere possible doubt." Ibid. (" `A reasonable
doubt is not a mere possible doubt. It is an actual substan-
tial doubt' "). Thus, the reason the Court condemned the
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Opinion of Blackmun, J.
"substantial doubt" language in Cage had nothing to do with
the absence of appropriate contrasting language; rather, the
Court condemned the language for precisely the reason it
gave: "[T]he words `substantial' and `grave,' as they are com-
monly understood, suggest a higher degree of doubt than is
required for acquittal under the reasonable doubt standard."
Id., at 41. In short, the majority's speculation that the jury
in Victor's case interpreted "substantial" to mean something
other than "that specified to a large degree" simply because
the word "substantial" is used at one point to distinguish
mere conjecture is unfounded and is foreclosed by Cage itself.
The majority further attempts to minimize the obvious
hazards of equating "substantial doubt" with reasonable
doubt by suggesting that, in Cage, it was the combined use
of "substantial doubt" and "grave uncertainty," "in parallel,"
that rendered the use of the phrase "substantial doubt" un-
constitutional. Ante, at 20. This claim does not withstand
scrutiny. The Court in Cage explained that both "substan-
tial doubt" and "grave uncertainty" overstated the degree of
doubt necessary to acquit, and found that it was the use of
those words in conjunction with the misleading phrase
"moral certainty" that violated due process. The Court's
exact words were:
"It is plain to us that the words `substantial' and `grave,'
as they are commonly understood, suggest a higher de-
gree of doubt than is required for acquittal under the
reasonable doubt standard. When those statements are
then considered with the reference to `moral certainty,'
rather than evidentiary certainty, it becomes clear that
a reasonable juror could have interpreted the instruc-
tion to allow a finding of guilt based on a degree of proof
below that required by the Due Process Clause." 498
U. S., at 41.
Clearly, the Court was not preoccupied with the relationship
between "substantial doubt" and "grave uncertainty." The
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34 VICTOR v. NEBRASKA
Opinion of Blackmun, J.
Court instead endorsed the universal opinion of the Courts
of Appeals that equating reasonable doubt with "substantial
doubt" is improper and potentially misleading in that it over-
states the degree of doubt required for acquittal under the
reasonable-doubt standard. See, e. g., Smith v. Bordenkir-
cher, 718 F. 2d 1273, 1276 (CA4 1983) (noting agreement with
the "uniformly disapproving" view of the appellate courts
regarding the use of the "substantial doubt" language), cert.
denied, 466 U. S. 976 (1984); see also Taylor v. Kentucky,
436 U. S. 478, 488 (1978) ("[Equating `substantial doubt' with
reasonable doubt], though perhaps not in itself reversible
error, often has been criticized as confusing").*
In a final effort to distinguish the use of the phrase "sub-
stantial doubt" in this case from its use in Cage, the majority
states: "In any event, the instruction provided an alternative
definition of reasonable doubt: a doubt that would cause a
reasonable person to hesitate to act." Ante, at 20. The
Court reasons that since this formulation has been upheld in
other contexts, see Holland v. United States, 348 U. S. 121,
140 (1954), this "alternative" statement makes it unlikely
that the jury would interpret "substantial" to mean "to a
large degree."
To begin with, I note my general agreement with Justice
Ginsburg's observation that the "hesitate to act" language
is far from helpful, and may in fact make matters worse by
analogizing the decision whether to convict or acquit a de-
fendant to the frequently high-risk personal decisions people
must make in their daily lives. See ante, at 24 (opinion
*Despite the overwhelming disapproval of the use of the phrase "sub-
stantial doubt" by appellate courts, some state trial courts continue to
employ the language when instructing jurors. See Bordenkircher, 718 F.
2d, at 1279 (dissenting opinion) ("As the majority has forthrightly pointed
out, a `good and substantial doubt' instruction has evoked a `uniformly
disapproving' response from appellate courts . . . . Evidently the slight
slaps on the wrist followed by affirmance of the convictions have not
served the hoped for end of correction of the error in futuro").
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Opinion of Blackmun, J.
concurring in part and concurring in judgment). But even
assuming this "hesitate to act" language is in some way help-
ful to a jury in understanding the meaning of reasonable
doubt, the existence of an "alternative" and accurate defini-
tion of reasonable doubt somewhere in the instruction does
not render the instruction lawful if it is "reasonably likely"
that the jury would rely on the faulty definition during its
deliberations. Boyde, 494 U. S., at 380. Cage itself con-
tained proper statements of the law with respect to what is
required to convict or acquit a defendant, but this language
could not salvage the instruction since it remained reason-
ably likely that, despite the proper statements of law, the
jury understood the instruction to require "a higher degree
of doubt than is required for acquittal under the reasonable
doubt standard." 498 U. S., at 41.
In my view, the predominance of potentially misleading
language in Victor's instruction made it likely that the jury
interpreted the phrase "substantial doubt" to mean that a
"large" doubt, as opposed to a merely reasonable doubt, is
required to acquit a defendant. It seems that a central pur-
pose of the instruction is to minimize the jury's sense of re-
sponsibility for the conviction of those who may be innocent.
The instruction goes out of its way to assure jurors that
"[y]ou may be convinced of the truth of a fact beyond a rea-
sonable doubt and yet be fully aware that possibly you may
be mistaken"; and then, after acquainting jurors with the
possibility that their consciences will be unsettled after con-
victing the defendant, the instruction states that the jurors
should feel free to convict based on the "strong probabilities
of the case." Viewed as a whole, the instruction is geared
toward assuring jurors that although they may be mistaken,
they are to make their decision on those "strong probabili-
ties," and only a "substantial doubt" of a defendant's guilt
should deter them from convicting.
The majority dismisses the potentially harmful effects of
the "strong probabilities" language on the ground that a
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36 VICTOR v. NEBRASKA
Opinion of Blackmun, J.
"nearly identical instruction" was upheld by the Court a cen-
tury ago. See ante, at 22, citing Dunbar v. United States,
156 U. S. 185, 199 (1895). But the instruction in Dunbar did
not equate reasonable doubt with "substantial doubt," nor
did it contain the phrase "moral certainty." As the majority
appreciates elsewhere in its opinion, challenged jury instruc-
tions must be considered in their entirety. Ante, at 5, quot-
ing Holland, 348 U. S., at 140 (" `[T]aken as a whole, the in-
structions [must] correctly conve[y] the concept of reasonable
doubt to the jury' "). Rather than examining the jury in-
struction as a whole, the majority parses it, ignoring the re-
lationship between the challenged phrases as well as their
cumulative effect.
Considering the instruction in its entirety, it seems fairly
obvious to me that the "strong probabilities" language in-
creased the likelihood that the jury understood "substantial
doubt" to mean "to a large degree." Indeed, the jury could
have a reasonable doubt about a defendant's guilt but still
find that the "strong probabilities" are in favor of conviction.
Only when a reasonable doubt is understood to be a doubt
"to a large degree" does the "strong probabilities" language
begin to make sense. A Nebraska Federal District Court
recently observed: "The word `probability' brings to mind
terms such as `chance,' `possibility,' `likelihood' and `plausibil-
ity'-none of which appear to suggest the high level of cer-
tainty which is required to be convinced of a defendant's
guilt `beyond a reasonable doubt.' " Morley v. Stenberg, 828
F. Supp. 1413, 1422 (1993). All of these terms, however, are
consistent with the interpretation of "substantial doubt" as
a doubt "to a large degree." A jury could have a large and
reasonable doubt about a defendant's guilt but still find the
defendant guilty on "the strong probabilities of the case,"
believing it "likely" that the defendant committed the crime
for which he was charged.
To be sure, the instruction does qualify the "strong proba-
bilities" language by noting that "the strong probabilities of
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Opinion of Blackmun, J.
the case" should be "strong enough to exclude any doubt of
his guilt that is reasonable." But this qualification is useless
since a "doubt of his guilt that is reasonable" is immediately
defined, in the very next sentence, as a "substantial doubt."
Thus, the supposed clarification only compounds the confu-
sion by referring the jury to the "substantial doubt" phrase
as a means of defining the "strong probabilities" language.
Finally, the instruction issued in Victor's case states that
a reasonable doubt "is such a doubt as will not permit you,
after full, fair, and impartial consideration of all the evidence,
to have an abiding conviction, to a moral certainty, of the
guilt of the accused." In Cage, the Court disapproved of
the use of the phrase "moral certainty," because of the real
possibility that such language would lead jurors reasonably
to believe that they could base their decision to convict upon
moral standards or emotion in addition to or instead of evi-
dentiary standards. The risk that jurors would understand
"moral certainty" to authorize convictions based in part on
value judgments regarding the defendant's behavior is par-
ticularly high in cases where the defendant is alleged to have
committed a repugnant or brutal crime. In Cage, we there-
fore contrasted "moral certainty" with "evidentiary cer-
tainty," and held that where "moral certainty" is used in con-
junction with "substantial doubt" and "grave uncertainty,"
the Due Process Clause is violated. 498 U. S., at 41.
Just as in Cage, the "moral certainty" phrase in Victor's
instruction is particularly dangerous because it is used in
conjunction with language that overstates the degree of
doubt necessary to convict. This relationship between the
"moral certainty" language, which potentially understates
the degree of certainty required to convict, and the "substan-
tial doubt," "strong probabilities," and "possibly you may be
mistaken" language which, especially when taken together,
overstates the degree of doubt necessary to acquit, also dis-
tinguishes Victor's instruction from the one challenged in
No. 92Â9049, Sandoval v. California. See ante, at 7. The
511us1$30F 11-03-97 16:58:41 PAGES OPINPGT
38 VICTOR v. NEBRASKA
Opinion of Blackmun, J.
jury instruction defining reasonable doubt in Sandoval used
the phrases "moral certainty" and "moral evidence," but the
phrases were not used in conjunction with language of the
type at issue here-language that easily may be interpreted
as overstating the degree of doubt required to acquit. In
other words, in Victor's instruction, unlike Sandoval's, all of
the misleading language is mutually reinforcing, both over-
stating the degree of doubt necessary to acquit and under-
stating the degree of certainty required to convict.
This confusing and misleading state of affairs leads me in-
eluctably to the conclusion that, in Victor's case, there exists
a reasonable likelihood that the jury believed that a lesser
burden of proof rested with the prosecution; and, moreover,
it prevents me from distinguishing the jury instruction chal-
lenged in Victor's case from the one issued in Cage. As with
the Cage instruction, it simply cannot be said that Victor's
instruction accurately informed the jury as to the degree of
certainty required for conviction and the degree of doubt
required for acquittal. Where, as here, a jury instruction
attempts but fails to convey with clarity and accuracy the
meaning of reasonable doubt, the reviewing court should
reverse the conviction and remand for a new trial. See
Sullivan v. Louisiana, 508 U. S., at 277Â288. I would va-
cate the judgment of the Supreme Court of Nebraska and
remand the case.
II
Although I concur in the Court's opinion in No. 92Â9049,
Sandoval v. California, I dissent from the Court's affirm-
ance of the judgment in that case. Adhering to my view
that the death penalty cannot be imposed fairly within the
constraints of our Constitution, see my dissent in Callins v.
Collins, 510 U. S. 1141, 1143 (1994), I would vacate the sen-
tence of death in Sandoval. And, in view of my dissent
in Callins, I also would vacate the sentence of death in
No. 92Â8894, Victor v. Nebraska, even if I believed that the
underlying conviction withstood constitutional scrutiny.
511us1$31Z 11-03-97 17:00:27 PAGES OPINPGT
OCTOBER TERM, 1993 39
Syllabus
UNITED STATES v. GRANDERSON
certiorari to the united states court of appeals for
the eleventh circuit
No. 92Â1662. Argued January 10, 1994-Decided March 22, 1994
Respondent Granderson, a letter carrier, pleaded guilty to one count of
destruction of mail. The potential imprisonment range for that crime
was 0Â6 months under the United States Sentencing Guidelines. The
District Court imposed no prison time, sentencing Granderson instead
to five years' probation and a fine. After Granderson tested positive
for cocaine, the court resentenced him under 18 U. S. C. § 3565(a), which
provides that if a person serving a sentence of probation possesses ille-
gal drugs, "the court shall revoke the sentence of probation and sen-
tence the defendant to not less than one-third of the original sentence."
Accepting the Government's reading of the statute, the District Court
concluded that the phrase "original sentence" referred to the term of
probation actually imposed (60 months), rather than the 0Â6 month
imprisonment range authorized by the Guidelines. Accordingly, that
court resentenced Granderson to 20 months' imprisonment. The Court
of Appeals upheld the revocation of Granderson's probation, but vacated
his new sentence. Invoking the rule of lenity, the court agreed with
Granderson that "original sentence" referred to the potential imprison-
ment range under the Guidelines, not to the actual probation sentence.
Because Granderson had already served 11 months of his revocation
sentence-more than the 6-months maximum under the Guidelines-the
court ordered him released from custody.
Held: The minimum revocation sentence under § 3565(a)'s drug-possession
proviso is one-third the maximum of the originally applicable Guidelines
range of imprisonment, and the maximum revocation sentence is the
Guidelines maximum. Pp. 44Â57.
(a) The Government is correct that the proviso mandates imprison-
ment, not renewed probation, as the required type of punishment. The
contrast in §§ 3565(a)(1) and (2) between "continu[ing]" and "revok[ing]"
probation as the alternative punishments for a defendant who violates
a probation condition suggests that a revocation sentence must be a
sentence of imprisonment, not a continuation of probation. Moreover,
it would be absurd to punish drug-possessing probationers by revoking
their probation and imposing a new term of probation no longer than
the original. However, the Government contends incorrectly that the
term "original sentence" unambiguously calls for a sentence based on
511us1$31Z 11-03-97 17:00:27 PAGES OPINPGT
40 UNITED STATES v. GRANDERSON
Syllabus
the term of probation. The statutory language appears to differentiate,
not to equate or amalgamate, "the sentence of probation" and "the origi-
nal sentence." The Government's interpretation, furthermore, reads
the proviso's word "sentence" inconsistently. Pp. 44Â47.
(b) Under Granderson's reading of the proviso, the "original sen-
tence" that sets the duration of the revocation sentence is the applicable
Guidelines sentence of imprisonment, not the revoked term of probation.
That reading avoids both the linguistic anomalies presented by the Gov-
ernment's construction and the sentencing disparities that would attend
the Government's interpretation. Furthermore, contrary to the Gov-
ernment's arguments, Granderson's reading satisfies the statute's pur-
pose by treating the class of drug possessors more severely than other
probation violators, and the proviso need not be interpreted in pari
materia with the discrete, differently worded provision prescribing rev-
ocation of the supervised release of drug possessors. Moreover, the
proviso's history furnishes additional cause to resist the Government's
interpretation, for it indicates that the proviso may not have received
Congress' careful attention and may have been composed with an ob-
solete federal sentencing regime in the drafters' minds. In these cir-
cumstances, where the text, structure, and statutory history fail to es-
tablish that the Government's position is unambiguously correct, the
rule of lenity operates to resolve the statutory ambiguity in Grander-
son's favor. Pp. 47Â54.
(c) The benchmark for the revocation sentence under the proviso is
the maximum Guidelines sentence of imprisonment. Pp. 54Â56.
(d) Because Granderson's maximum revocation sentence under the
proviso was 6 months, and because he had already served 11 months
imprisonment at the time the Court of Appeals issued its decision, that
court correctly ordered his release. Pp. 56Â57.
969 F. 2d 980, affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Blackmun,
Stevens, O'Connor, and Souter, JJ., joined. Scalia, J., post, p. 57,
and Kennedy, J., post, p. 60, filed opinions concurring in the judgment.
Rehnquist, C. J., filed a dissenting opinion, in which Thomas, J., joined,
post, p. 69.
Thomas G. Hungar argued the cause for the United
States. With him on the briefs were Solicitor General
Days, Acting Assistant Attorney General Keeney, and Dep-
uty Solicitor General Bryson.
511us1$31Z 11-03-97 17:00:27 PAGES OPINPGT
Cite as: 511 U. S. 39 (1994) 41
Opinion of the Court
Gregory S. Smith, by appointment of the Court, 510 U. S.
806, argued the cause for respondent. With him on the brief
was Stephanie Kearns.*
Justice Ginsburg delivered the opinion of the Court.
This case presents a question of statutory interpretation
regarding revocation of a federal sentence of probation.
The law at issue provides that if a person serving a sentence
of probation possesses illegal drugs, "the court shall revoke
the sentence of probation and sentence the defendant to not
less than one-third of the original sentence." 18 U. S. C.
§ 3565(a). Congress did not further define the critical term
"original sentence," nor are those words, unmodified, used
elsewhere in the Federal Criminal Code chapter on sen-
tencing. Embedded in that context, the words "original
sentence" in § 3565(a) are susceptible to at least three
interpretations.
Read in isolation, the provision could be taken to mean the
reimposition of a sentence of probation, for a period not less
than one-third of the original sentence of probation. This
construction, however, is implausible, and has been urged by
neither party, for it would generally demand no increased
sanction, plainly not what Congress intended.
The Government, petitioner here, reads the provision to
draw the time period from the initially imposed sentence of
probation, but to require incarceration, not renewed proba-
tion, for not less than one-third of that period. On the Gov-
ernment's reading, accepted by the District Court, respond-
ent Granderson would face a 20-month mandatory minimum
sentence of imprisonment.
Granderson maintains that "original sentence" refers to
the sentence of incarceration he could have received initially,
*Briefs of amici curiae urging affirmance were filed for the American
Bar Association by R. William Ide III and Antonio B. Ianniello; and
for the National Association of Criminal Defense Lawyers by Stephen
R. Sady.
511us1$31P 11-03-97 17:00:27 PAGES OPINPGT
42 UNITED STATES v. GRANDERSON
Opinion of the Court
in lieu of the sentence of probation, under the United States
Sentencing Guidelines. Granderson's construction calls for
a 2-month mandatory minimum. The Court of Appeals ac-
cepted Granderson's interpretation, see 969 F. 2d 980 (CA11
1992); returns in other Circuits are divided.1
The "original sentence" prescription of § 3565(a) was a
late-hour addition to the Anti-Drug Abuse Act of 1988, a
sprawling enactment that takes up 364 pages in the Statutes
at Large. Pub. L. 100Â690, 102 Stat. 4181Â4545. The provi-
sion appears not to have received Congress' careful atten-
tion. It may have been composed, we suggest below, with
the pre-1984 federal sentencing regime in the drafters'
minds; it does not easily adapt to the regime established by
the Sentencing Reform Act of 1984.
According the statute a sensible construction, we recog-
nize, in common with all courts that have grappled with the
"original sentence" conundrum, that Congress prescribed
imprisonment as the type of punishment for drug-possessing
probationers.2 As to the duration of that punishment, we
rest on the principle that " `the Court will not interpret a
federal criminal statute so as to increase the penalty . . .
when such an interpretation can be based on no more than a
1 Compare United States v. Penn, 17 F. 3d 70 (CA4 1994); United States
v. Alese, 6 F. 3d 85 (CA2 1993) (per curiam); United States v. Diaz, 989
F. 2d 391 (CA10 1993); United States v. Clay, 982 F. 2d 959 (CA6 1993),
cert. pending, No. 93Â52; United States v. Gordon, 961 F. 2d 426 (CA3 1992)
(all interpreting "original sentence" to mean the period of incarceration
originally available under the United States Sentencing Guidelines), with
United States v. Sosa, 997 F. 2d 1130 (CA5 1993); United States v. Byrkett,
961 F. 2d 1399 (CA8 1992); United States v. Corpuz, 953 F. 2d 526 (CA9
1992) (all reading "original sentence" to refer to the term of the revoked
probation).
2 The interpretation offered by Justice Kennedy-a reduced sentence
of probation as the mandatory minimum-is notable for its originality.
No court that has essayed construction of the prescription at issue has
come upon the answer Justice Kennedy finds clear in "the text and
structure of the statute." Post, at 60, 68. But cf. post, at 67 (describing
the statute as "far from transparent").
511us1$31P 11-03-97 17:00:27 PAGES OPINPGT
Cite as: 511 U. S. 39 (1994) 43
Opinion of the Court
guess as to what Congress intended.' " Bifulco v. United
States, 447 U. S. 381, 387 (1980), quoting Ladner v. United
States, 358 U. S. 169, 178 (1958). We therefore adopt Grand-
erson's interpretation and affirm the judgment of the Court
of Appeals.
I
Granderson, a letter carrier, pleaded guilty to one count
of destruction of mail, in violation of 18 U. S. C. § 1703(a).
Under the Sentencing Guidelines, the potential imprison-
ment range, derived from the character of the offense and
the offender's criminal history category, was 0Â6 months.
The District Court imposed no prison time, but sentenced
Granderson to five years' probation and a $2,000 fine.3 As a
standard condition of probation, Granderson was required to
submit periodically to urinary testing for illegal drug use.
Several weeks after his original sentencing, Granderson
tested positive for cocaine, and his probation officer peti-
tioned for revocation of the sentence of probation. Finding
that Granderson had possessed cocaine, the District Court
revoked Granderson's sentence of probation and undertook
to resentence him, pursuant to § 3565(a), to incarceration for
"not less than one-third of the original sentence." The term
"original sentence," the District Court concluded, referred
to the term of probation actually imposed (60 months) rather
than the imprisonment range authorized by the Guidelines
(0Â6 months). The court accordingly sentenced Granderson
to 20 months' imprisonment.
The Court of Appeals upheld the revocation of the sen-
tence of probation but vacated Granderson's new sentence.
969 F. 2d 980 (CA11 1992). That court observed that the
probation revocation sentence of 20 months' imprisonment
imposed by the District Court was far longer than the sen-
3 The Sentencing Reform Act of 1984, for the first time, classified proba-
tion as a sentence; before 1984, probation had been considered an alterna-
tive to a sentence. See S. Rep. No. 98Â225, p. 88 (1983).
511us1$31P 11-03-97 17:00:27 PAGES OPINPGT
44 UNITED STATES v. GRANDERSON
Opinion of the Court
tence that could have been imposed either for the underlying
crime of destroying mail (six months) or for the crime of
cocaine possession (one year). Id., at 983, and n. 2. The
Court of Appeals called it "legal alchemy" to convert an
"original sentence" of " `conditional liberty,' " with a corre-
spondingly long term, into a sentence of imprisonment with a
time span geared to the lesser restraint. Id., at 984, quoting
United States v. Gordon, 961 F. 2d 426, 432 (CA3 1992). In-
voking the rule of lenity, 969 F. 2d, at 983, the court con-
cluded that the phrase "original sentence" referred to "the
[0Â6 month] sentence of incarceration faced by Granderson
under the Guidelines," not to the 60-month sentence of
probation, id., at 984. Because Granderson had served 11
months of his revocation sentence-more than the 6-month
maximum-the Court of Appeals ordered him released from
custody. Id., at 985.
II
The text of § 3565(a) reads:
"If the defendant violates a condition of probation at any
time prior to the expiration or termination of the term
of probation, the court may . . .
"(1) continue him on probation, with or without ex-
tending the term or modifying [or] enlarging the condi-
tions; or
"(2) revoke the sentence of probation and impose any
other sentence that was available . . . at the time of the
initial sentencing.
"Notwithstanding any other provision of this section, if
a defendant is found by the court to be in possession of
a controlled substance . . . the court shall revoke the
sentence of probation and sentence the defendant to not
less than one-third of the original sentence." (Empha-
sis added.)
The Government argues that the italicized proviso is
unambiguous. The "original sentence" that establishes the
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Cite as: 511 U. S. 39 (1994) 45
Opinion of the Court
benchmark for the revocation sentence, the Government as-
serts, can only be the very sentence actually imposed, i. e.,
the sentence of probation. In this case, the sentence of pro-
bation was 60 months; "one-third of the original sentence"
is thus 20 months. But for two reasons, the Government
continues, Granderson's 20-month revocation sentence must
be one of imprisonment rather than probation. First, the
contrast in subsections (1) and (2) between "continu[ing]"
and "revok[ing]" probation suggests that a revocation sen-
tence must be a sentence of imprisonment, not a continuation
of probation. Second, the Government urges, it would be
absurd to "punish" drug-possessing probationers by revok-
ing their probation and imposing a new term of probation no
longer than the original. Congress could not be taken to
have selected drug possessors, from the universe of all pro-
bation violators, for more favorable treatment, the Govern-
ment reasons, particularly not under a provision enacted as
part of a statute called "The Anti-Drug Abuse Act."
We agree, for the reasons stated by the Government, that
a revocation sentence must be a term of imprisonment. Oth-
erwise the proviso at issue would make little sense.4 We do
not agree, however, that the term "original sentence" relates
to the duration of the sentence set for probation. The stat-
ute provides that if a probationer possesses drugs, "the court
4 Justice Kennedy's novel interpretation would authorize revocation
sentences under which drug possessors could profit from their violations.
The present case is an example. The District Court determined, just over
4 months into Granderson's 60-month sentence of probation, that Grander-
son had violated his conditions of probation by possessing drugs. If Jus-
tice Kennedy were correct that the proviso allows a revocation sentence
of probation, one-third as long as the sentence of probation originally im-
posed, then the District Court could have "punished" Granderson for his
cocaine possession by reducing his period of probation from 60 months to
just over 24 months. Justice Kennedy's interpretation would present
a similar anomaly whenever the drug-possessing probationer has served
less than two-thirds of the sentence of probation initially imposed. Surely
such an interpretation is implausible.
511us1$31P 11-03-97 17:00:27 PAGES OPINPGT
46 UNITED STATES v. GRANDERSON
Opinion of the Court
shall revoke the sentence of probation and sentence the de-
fendant to not less than one-third of the original sentence."
This language appears to differentiate, not to equate or amal-
gamate, "the sentence of probation" and "the original sen-
tence." See United States v. Penn, 17 F. 3d 70, 73 (CA4
1994) ("a sentence of probation does not equate to a sentence
of incarceration"). If Congress wished to convey the mean-
ing pressed by the Government, it could easily have in-
structed that the defendant be incarcerated for a term "not
less than one-third of the original sentence of probation," or
"not less than one-third of the revoked term of probation."
The Government's interpretation has a further textual dif-
ficulty. The Government reads the word "sentence," when
used as a verb in the proviso's phrase "sentence the defend-
ant," to mean "sentence to imprisonment" rather than "sen-
tence to probation." Yet, when the word "sentence" next
appears, this time as a noun ("original sentence"), the Gov-
ernment reads the word to mean "sentence of probation."
Again, had Congress designed the language to capture the
Government's construction, the proviso might have read:
"[T]he court shall revoke the sentence of probation and sen-
tence the defendant to a term of imprisonment whose length
is not less than one-third the length of the original sentence
of probation." Cf. Reves v. Ernst & Young, 507 U. S. 170,
177 (1993) ("it seems reasonable to give . . . a similar con-
struction" to a word used as both a noun and a verb in a
single statutory sentence).
As the Court of Appeals commented, "[p]robation and im-
prisonment are not fungible"; they are sentences fundamen-
tally different in character. 969 F. 2d, at 984. One-third of
a 60-month term of probation or "conditional liberty" is a
sentence scarcely resembling a 20-month sentence of impris-
onment. The Government insists and, as already noted, we
agree, that the revocation sentence, measured as one-third of
the "original sentence," must be a sentence of imprisonment.
But that "must be" suggests that "original sentence" refers
511us1$31P 11-03-97 17:00:27 PAGES OPINPGT
Cite as: 511 U. S. 39 (1994) 47
Opinion of the Court
the resentencer back to an anterior sentence of imprison-
ment, not a sentence of probation.
III
Granderson's reading of the § 3565(a) proviso entails such
a reference back. The words "original sentence," he con-
tends, refer back to § 3565(a)(2), the prescription immediately
preceding the drug-possession proviso: the "other sentence
that was available under subchapter A [the general sentenc-
ing provisions] at the time of the initial sentencing." The
Guidelines sentence of imprisonment authorized by subchap-
ter A was the "original sentence," Granderson argues, for it
was the presumptive sentence, the punishment that proba-
tion, as a discretionary alternative, replaced. The Guide-
lines range of imprisonment available at Granderson's initial
sentencing for destruction of mail was 0Â6 months. Start-
ing at the top of this range, Granderson arrives at two
months as the minimum revocation sentence.
A
Granderson's interpretation avoids linguistic anomalies
presented by the Government's construction. First, Grand-
erson's reading differentiates, as does the proviso, between
"the sentence of probation" that the resentencer must revoke
and "the original sentence" that determines the duration of
the revocation sentence. See supra, at 46. Second, Grand-
erson's construction keeps constant the meaning of "sen-
tence" in the phrases "sentence the defendant" and "original
sentence." See ibid. While the Government cannot easily
explain how multiplying a sentence of probation by one-third
can yield a sentence of imprisonment, Granderson's con-
struction encounters no such shoal. See Gordon, 961 F. 2d,
at 433 ("one-third of three years probation is one year proba-
tion, not one year imprisonment").5
5 The dissent notes that the term "original sentence" has been used in a
number of this Court's opinions and in other statutes and rules, in each
instance to refer to a sentence actually imposed. See post, at 72Â73, and
511us1$31P 11-03-97 17:00:28 PAGES OPINPGT
48 UNITED STATES v. GRANDERSON
Opinion of the Court
Granderson's reading of the proviso also avoids the star-
tling disparities in sentencing that would attend the Govern-
ment's interpretation. A 20-month minimum sentence
would exceed not only the 6-month maximum punishment
under the Guidelines for Granderson's original offense; it
would also exceed the 1-year statutory maximum, see 21
U. S. C. § 844(a), that Granderson could have received, had
the Government prosecuted him for cocaine possession and
afforded him the full constitutional protections of a criminal
trial, rather than the limited protections of a revocation
hearing.6 Indeed, a 20-month sentence would exceed con-
secutive sentences for destruction of mail and cocaine posses-
sion (18 months in all).
Furthermore, 20 months is only the minimum revocation
sentence, on the Government's reading of the proviso. The
Government's interpretation would have allowed the Dis-
trict Court to sentence Granderson to a term of imprison-
ment equal in length to the revoked term of probation. This
prison term-five years-would be 10 times the exposure to
imprisonment Granderson faced under the Guidelines for his
nn. 4Â5. None of those cases, statutes, or rules, however, involves an
interpretive problem such as the one presented here, where, if the "origi-
nal sentence" is the sentence actually imposed, a "plain meaning" interpre-
tation of the proviso leads to an absurd result. See supra, at 41, 45, and
n. 4.
The dissent observes, further, that other federal sentencing provisions
"us[e] the word `sentence' to refer to the punishment actually imposed on
a defendant." Post, at 71, n. 2. In each of the cited instances, however,
this reference is made clear by context, either by specifying the type of
sentence (e. g., "sentence to pay a fine," "sentence to probation," 18 U. S. C.
§ 3551(c)), or by using a variant of the phrase "impose sentence" (see
§§ 3553(a), (b), (c), (e); 3554Â3558).
6 At a revocation hearing, in contrast to a full-scale criminal trial, the
matter is tried to the court rather than a jury; also, the standard of proof
has been held to be less stringent than the reasonable-doubt standard
applicable to criminal prosecutions. See 18 U. S. C. § 3565(a); Fed. Rule
Crim. Proc. 32.1; United States v. Gordon, 961 F. 2d 426, 429 (CA3 1992)
(citing cases).
511us1$31P 11-03-97 17:00:28 PAGES OPINPGT
Cite as: 511 U. S. 39 (1994) 49
Opinion of the Court
original offense, and 5 times the applicable statutory maxi-
mum for cocaine possession. It seems unlikely that Con-
gress could have intended so to enlarge the District Court's
discretion. See Penn, 17 F. 3d, at 73.7
B
Two of the Government's arguments against Granderson's
interpretation are easily answered. First, the Government
observes that the purpose of the Anti-Drug Abuse Act was
to impose tough sanctions on drug abusers. See Brief for
United States 22Â26 (listing new penalties and quoting state-
ments from Members of Congress that they intended to pun-
ish drug offenders severely). But we cannot divine from the
legislators' many "get tough on drug offenders" statements
any reliable guidance to particular provisions. None of the
legislators' expressions, as the Government admits, focuses
on "the precise meaning of the provision at issue in this
case." Id., at 24, and n. 4; cf. Busic v. United States, 446
U. S. 398, 408 (1980) ("[W]hile Congress had a general desire
to deter firearm abuses, that desire was not unbounded.
Our task here is to locate one of the boundaries, and the
inquiry is not advanced by the assertion that Congress
wanted no boundaries."). Under Granderson's interpreta-
tion, moreover, drug possessors are hardly favored. In-
7 The dissent suggests that the statutory maximum for the original of-
fense (five years in this case, see 18 U. S. C. § 1703(a)) is the maximum
revocation sentence. See post, at 77, n. 8. The District Court, however,
could not have imposed this sentence originally, without providing "the
specific reason" for departing from the Guidelines range, 18 U. S. C.
§ 3553(c), and explaining in particular why "an aggravating . . . circum-
stance [exists,] of a kind, or to a degree, [that was] not adequately taken
into consideration by the Sentencing Commission in formulating the
guidelines . . . ." § 3553(b). Upward departures from the presumptive
Guidelines range to the statutory maximum are thus appropriate only in
exceptional cases. See infra, at 56, n. 14. The dissent's interpretation,
however, would allow district courts to impose the statutory maximum as
a revocation sentence in the routine exercise of their ordinary discretion.
511us1$31P 11-03-97 17:00:28 PAGES OPINPGT
50 UNITED STATES v. GRANDERSON
Opinion of the Court
stead, they are singled out among probation violators for
particularly adverse treatment: They face mandatory, rather
than optional, terms of imprisonment.
Next, the Government argues that the drug-possession
proviso must be construed in pari materia with the parallel
provision, added at the same time, governing revocation of
supervised release upon a finding of drug possession. In the
latter provision, the Government observes, Congress or-
dered a revocation sentence of "not less than one-third of the
term of supervised release," and it expressly provided that
the revocation sentence should be "serve[d] in prison." 18
U. S. C. § 3583(g). Correspondingly, the Government main-
tains, the probation revocation proviso should be construed
to require a minimum prison term of one-third the term of
probation. The Government acknowledges that, while Con-
gress spelled out "one-third of the term of supervised re-
lease," Congress did not similarly say "one-third of the term
of probation." However, the Government attributes this
difference to the fact that, unlike probation under the cur-
rent sentencing regime, supervised release is not itself an
"original sentence," it is only a component of a sentence that
commences with imprisonment.
We are not persuaded that the supervised release revoca-
tion prescription should control construction of the probation
revocation proviso. Supervised release, in contrast to pro-
bation, is not a punishment in lieu of incarceration. Persons
serving postincarceration terms of supervised release gener-
ally are more serious offenders than are probationers. But
terms of supervised release, because they follow up prison
terms, are often shorter than initial sentences of probation.8
8 A probation term of 1Â5 years is available for Class C and D felonies;
the corresponding term of supervised release is not more than 3 years.
For Class E felonies, a 1Â5 year probation term is available, but not more
than a 1-year term of supervised release. For misdemeanors, a probation
term of not more than 5 years is available; the corresponding term of
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Cite as: 511 U. S. 39 (1994) 51
Opinion of the Court
Thus, under the Government's in pari materia approach,
drug possessors whose original offense warranted the more
serious sanction of prison plus supervised release would
often receive shorter revocation sentences than would drug-
possessing probationers.
The Government counters that Congress might have in-
tended to punish probationers more severely because they
were "extended special leniency." Reply Brief for United
States 13, n. 14. A sentence of probation, however, even if
"lenient," ordinarily reflects the judgment that the offense
and offender's criminal history were not so serious as to war-
rant imprisonment. In sum, probation sans imprisonment
and supervised release following imprisonment are sentences
of unlike character. This fact weighs heavily against the ar-
gument that the discrete, differently worded probation and
supervised release revocation provisions should be construed
in pari materia.
C
The history of the probation revocation proviso's enact-
ment gives us additional cause to resist the Government's
interpretation. The Anti-Drug Abuse Act, in which the pro-
viso was included, was a large and complex measure, de-
scribed by one Member of the House of Representatives as
"more like a telephone book than a piece of legislation." 134
Cong. Rec. 33290 (1988) (remarks of Rep. Conte). The pro-
viso seems first to have appeared in roughly its present form
as a Senate floor amendment offered after both the House
and the Senate had passed the bill. See id., at 24924Â24925
(House passage, Sept. 22); id., at 30826 (Senate passage, Oct.
14); id., at 30945 (proviso included in lengthy set of amend-
ments proposed by Sen. Nunn, Oct. 14). No conference re-
port addresses the provision, nor are we aware of any post-
supervised release is not more than 1 year. See 18 U. S. C. §§ 3561(b),
3583(b).
511us1$31P 11-03-97 17:00:28 PAGES OPINPGT
52 UNITED STATES v. GRANDERSON
Opinion of the Court
conference discussion of the issue.9 The proviso thus seems
to have been inserted into the Anti-Drug Abuse Act without
close inspection. Cf. United States v. Bass, 404 U. S. 336,
344 (1971) (applying rule of lenity, noting that statutory pro-
vision "was a last-minute Senate amendment" to a long and
complex bill and "was hastily passed, with little discussion,
no hearings, and no report").
Another probation-related provision of the Anti-Drug
Abuse Act, proposed shortly before the proviso, casts further
doubt on the Government's reading. That provision amends
the prohibition against using or carrying an explosive in the
commission of a federal felony, to provide in part: "Notwith-
standing any other provision of law, the court shall not place
on probation or suspend the sentence of any person con-
victed of a violation of this subsection . . . ." Pub. L. 100Â
690, § 6474(b), 102 Stat. 4380, codified at 18 U. S. C. § 844(h)
(emphasis added). This provision, notwithstanding its 1988
date of enactment, is intelligible only under pre-1984 law:
The 1984 Sentencing Reform Act had abolished suspended
sentences, and the phrase "place on probation" had yielded
to the phrase "impose a sentence of probation."
Granderson's counsel suggested at oral argument, see Tr.
of Oral Arg. 22Â23, 29Â31, 36Â41, that the proviso's drafters
might similarly have had in mind the pre-1984 sentencing
regime, in particular, the pre-1984 practice of imposing a sen-
tence of imprisonment, suspending its execution, and placing
the defendant on probation. See 18 U. S. C. § 3651 (1982)
(for any offense "not punishable by death or life imprison-
9 Debate over the conference bill took place in the middle of the night,
see 134 Cong. Rec. 32633 (1988) ("I am cognizant that it is 2:20 in the
morning, and I will not take long") (remarks of Sen. Dole); id., at 33318
(House vote taken at 1 a.m.), with Congress anxious to adjourn and return
home for the 1988 elections that were little more than two weeks away.
Section-by-section analyses were produced after conference in both the
Senate and the House, but neither publication casts much light on the
proviso. See id., at 32707 (Senate); id., at 33236 (House).
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Cite as: 511 U. S. 39 (1994) 53
Opinion of the Court
ment," the court may "suspend the imposition or execution
of sentence and place the defendant on probation for such
period and upon such terms and conditions as the court
deems best"). The proviso would fit the suspension-of-
execution scheme precisely: The "original sentence" would
be the sentence imposed but not executed, and one-third of
that determinate sentence would be the revocation sentence.
In that application, the proviso would avoid incongruities
presented in Granderson's and the Government's interpreta-
tions of the words "original sentence": An imposed, albeit
unexecuted, term of imprisonment would be an actual, rather
than a merely available, sentence, and one-third of that
sentence would be a term of imprisonment, not probation.
If Granderson could demonstrate that the proviso's draft-
ers in fact drew the prescription to match the pre-1984
suspension-of-execution scheme, Granderson's argument
would be all the more potent: The closest post-1984 analogue
to the suspended sentence is the Guidelines sentence of im-
prisonment that could have been implemented, but was held
back in favor of a probation sentence.10
We cannot say with assurance that the proviso's drafters
chose the term "original sentence" with a view toward pre-
1984 law.11 The unexacting process by which the proviso
was enacted, however, and the evident anachronism in an-
other probation-related section of the Anti-Drug Abuse Act,
leave us doubtful that it was Congress' design to punish
drug-possessing probationers with the extraordinarily dis-
proportionate severity the Government urges.
10 See Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard
Cases, 103 Yale L. J. 1561, 1579Â1581 (1994).
11 The chief difficulty with such an interpretation is that pre-1984 law
recognized two kinds of suspended sentences, each of which could lead to
probation. While suspension of the execution of sentence, as mentioned,
neatly fits Granderson's theory, suspension of the imposition of sentence
fits the theory less well: In that situation, no determinate "original sen-
tence" would be at hand for precise calculation of the revocation sentence.
511us1$31P 11-03-97 17:00:28 PAGES OPINPGT
54 UNITED STATES v. GRANDERSON
Opinion of the Court
In these circumstances-where text, structure, and his-
tory fail to establish that the Government's position is unam-
biguously correct-we apply the rule of lenity and resolve
the ambiguity in Granderson's favor. See, e. g., Bass, 404
U. S., at 347Â349. We decide that the "original sentence"
that sets the duration of the revocation sentence is the appli-
cable Guidelines sentence of imprisonment, not the revoked
term of probation.12
IV
We turn, finally, to the Government's argument that
Granderson's theory, and the Court of Appeals' analysis, are
fatally flawed because the Guidelines specify not a term but a
range-in this case, 0Â6 months. Calculating the minimum
revocation sentence as one-third of that range, the manda-
tory minimum term of imprisonment would be 0Â2 months,
the Government asserts, which would permit a perverse re-
sult: A resentencing court could revoke a drug possessor's
sentence of probation, and then impose no sentence at all.
Recognizing this curiosity, lower courts have used not 0Â6
months as their starting place, but the top of that range, as
12 Justice Kennedy suggests that our interpretation of the proviso
"read[s] a criminal statute against a criminal defendant," post, at 67, and
that to the extent the rule of lenity is applicable, it would "deman[d] the
interpretation" advanced in his opinion-that the proviso establishes a
mandatory minimum sentence of probation, one-third as long as the sen-
tence of probation initially imposed, post, at 69. We note that Grander-
son, the criminal defendant in this case, does not urge the interpretation
Justice Kennedy presents. More to the point, both of Justice Ken-
nedy's assertions presuppose that his interpretation of the proviso is a
permissible one. For reasons set out above, we think it is not. See
supra, at 45, and n. 4.
Justice Scalia suggests that on our interpretation of the proviso, the
mandatory minimum revocation sentence should include a fine as well as
a term of imprisonment. See post, at 58. The term of probation, how-
ever, was imposed in lieu of a sentence of imprisonment, not in lieu of a
fine. Revocation of the sentence of probation, we think, implies replacing
the sentence of probation with a sentence of imprisonment, but does not
require changing an unrevoked sentence earlier imposed.
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Opinion of the Court
the "original sentence," which yields 2 months as the mini-
mum revocation sentence. The Government complains that
no court has explained why the top, rather than the middle
or the bottom of the range, is the appropriate point of
reference.13
The reason for starting at the top of the range, however,
is evident: No other solution yields as sensible a response to
the "original sentence" conundrum. Four measures of the
minimum revocation sentence could be hypothesized as pos-
sibilities, if the applicable Guidelines range is the starting
point: The sentence could be calculated as (1) one-third of
the Guidelines maximum, (2) one-third of the Guidelines min-
imum, (3) one-third of some point between the minimum and
maximum, such as the midpoint, or (4) one-third of the range
itself. The latter two possibilities can be quickly eliminated.
Selecting a point between minimum and maximum, whether
the midpoint or some other point, would be purely arbitrary.
Calculating the minimum revocation sentence as one-third of
the Guidelines range, in practical application, yields the same
result as setting the minimum revocation sentence at one-
third of the Guidelines minimum: To say, for example, that a
2Â4 month sentence is the minimum revocation sentence is
effectively to say that a 2-month sentence is the minimum.
Using the Guidelines minimum in cases such as the pres-
ent one (0Â6 month range), as already noted, would yield a
13 See United States v. Penn, 17 F. 3d 70 (CA4 1994) (expressly declaring
that the minimum revocation sentence is one-third of the top of the Guide-
lines range); United States v. Alese, 6 F. 3d 85 (CA2 1993) (per curiam)
(same); United States v. Gordon, 961 F. 2d 426 (CA3 1992) (same); United
States v. Clay, 982 F. 2d 959 (CA6 1993) (holding that the maximum revo-
cation sentence is the top of the Guidelines range), cert. pending, No.
93Â52; United States v. Diaz, 989 F. 2d 391 (CA10 1993) (vacating a revoca-
tion sentence that exceeded the top of the original Guidelines range).
The Court of Appeals in the present case was not required to identify the
minimum term, because Granderson had served five months more than the
top of the Guidelines range by the time the opinion was issued. See 969
F. 2d 980, 985 (CA11 1992).
511us1$31P 11-03-97 17:00:28 PAGES OPINPGT
56 UNITED STATES v. GRANDERSON
Opinion of the Court
minimum revocation sentence of zero, a result incompatible
with the apparent objective of the proviso-to assure that
those whose probation is revoked for drug possession serve
a term of imprisonment. The maximum Guidelines sentence
as the benchmark for the revocation sentence, on the other
hand, is "a sensible construction" that avoids attributing to
the legislature either "an unjust or an absurd conclusion."
In re Chapman, 166 U. S. 661, 667 (1897).14
V
We decide, in sum, that the drug-possession proviso of
§ 3565(a) establishes a mandatory minimum sentence of im-
prisonment, but we reject the Government's contention that
the proviso unambiguously calls for a sentence based on the
term of probation rather than the originally applicable
Guidelines range of imprisonment. Granderson's interpre-
tation, if not flawless, is a securely plausible reading of the
statutory language, and it avoids the textual difficulties and
sentencing disparities we identified in the Government's po-
sition. In these circumstances, in common with the Court
of Appeals, we apply the rule of lenity and resolve the ambi-
guity in Granderson's favor. The minimum revocation sen-
tence, we hold, is one-third the maximum of the originally
14 The Government observes that "in appropriate circumstances" the
sentencing court may depart upward from the presumptive Guidelines
range, limited in principle only by the statutory maximum. See 18
U. S. C. § 3553(b). According to the Government, it follows that if the
"original sentence" is the "maximum available sentence," then the statu-
tory maximum rather than the top of the presumptive Guidelines range is
the appropriate basis for the revocation sentence. Brief for United States
22. The short answer to the Government's argument is that for cases in
which the sentencing judge considers an upward departure warranted, a
sentence of probation, rather than one of imprisonment, is a most unlikely
prospect. It makes scant sense, then, to assume that an "original sen-
tence" for purposes of probation revocation is a sentence beyond the pre-
sumptively applicable Guidelines range.
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Cite as: 511 U. S. 39 (1994) 57
Scalia, J., concurring in judgment
applicable Guidelines range,15 and the maximum revocation
sentence is the Guidelines maximum.
In this case, the maximum revocation sentence is six
months. Because Granderson had served 11 months impris-
onment by the time the Court of Appeals issued its decision,
that court correctly ordered his release. The judgment of
the Court of Appeals is therefore
Affirmed.
Justice Scalia, concurring in the judgment.
My view of this case is close to, but not precisely, that of
Justice Kennedy. I agree with him, for the reasons he
well expresses, that the only linguistically tenable interpre-
tation of 18 U. S. C. § 3565(a) establishes as a floor a sentence
one-third of the sentence originally imposed, but leaves the
district court free to impose any greater sentence available
for the offense under the United States Code and the
Sentencing Guidelines. Wherein I differ is that I do not be-
lieve (as he does) that only the probation element of the orig-
inal sentence is to be considered-i. e., as he puts it, "that
`original sentence' refers to the sentence of probation a
defendant in fact received at the initial sentencing." Post,
at 61 (emphasis added). (The Chief Justice also espouses
15 At oral argument the Government suggested that its own interpreta-
tion is more lenient than Granderson's, in those rare cases in which the
court has departed downward from the Guidelines to impose a sentence of
probation. In United States v. Harrison, 815 F. Supp. 494 (DC 1993), for
example, the court, on the Government's motion, had departed downward
from a 97Â121 month Guidelines range and a 10-year statutory mandatory
minimum to impose only a sentence of probation. When the Government
moved to revoke probation for drug possession, the court held that the
statute required basing the revocation sentence upon the term of proba-
tion rather than the Guidelines range, and, in the alternative, that even if
the statute were ambiguous, the rule of lenity would so require. Having
found § 3565(a)'s drug-possession proviso ambiguous, we agree that the
rule of lenity would support a shorter sentence, whether on Harrison's
analysis, or on the theory that the "applicable Guidelines range" is the
maximum of a Guidelines range permitting a sentence of probation.
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58 UNITED STATES v. GRANDERSON
Scalia, J., concurring in judgment
this view, see post, at 71.) It seems to me that the term
must refer to the entire original sentence; where that in-
cludes a fine in addition to the probation, the fine also is
included. Thus, one-third of a sentence consisting of three
years' probation and a $3,000 fine would be not merely one
year's probation but a $1,000 fine as well. Even the major-
ity, to maintain some measure of consistency in its strained
interpretation of "original sentence," ought to consider, in
addition to "the applicable Guidelines sentence of imprison-
ment," ante, at 54, the equally applicable range of fines set
forth in the Guidelines, see United States Sentencing Com-
mission, Guidelines Manual § 5E1.2(c)(3) (Nov. 1993) (USSG).*
*The Court's reply to this is that since "[t]he term of probation . . . was
imposed in lieu of a sentence of imprisonment, not in lieu of a fine," its
revocation "implies replacing the sentence of probation with a sentence of
imprisonment." Ante, at 54, n. 12. I do not know why an implication
would inhere in the proviso which contradicts the body of § 3565(a)(2) to
which the proviso is attached. The latter provides that the court may
"revoke the sentence of probation and impose any other sentence that
was available . . . at the time of the initial sentencing" (emphasis added).
Presumably the Court would concede that "any other sentence" includes
a fine-in which case its discernment of some implication that revoked
probation may be replaced by only prison time must be wrong.
Justice Kennedy makes a similar defense. He refuses to consider the
fine component because "[t]he proviso instructs the district court to `re-
voke the sentence of probation,' but says nothing about the fine imposed
at the initial sentencing," post, at 61. There is, however, clearly no re-
quirement that only what has been revoked can be the baseline for mea-
suring the requisite minimum-for even the unrevoked (because already
served) portion of the probation period counts. Justice Kennedy's ar-
gument reduces, therefore, to the contention that for some unexplained
reason the requisite minimum replacement for the revoked "probation
component" of the original sentence can be measured only by that same
component. This imperative is not to be found in the language of the
statute; to the contrary, interchangeability of fines and probation is sug-
gested by the body of § 3565(a)(2) quoted above. Here, it seems to me,
Justice Kennedy simply abandons the text and adopts an intuited limita-
tion remarkably similar to those for which he criticizes the Court and
the dissent.
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Cite as: 511 U. S. 39 (1994) 59
Scalia, J., concurring in judgment
Both under my analysis, and under Justice Kennedy's,
there exists a problem of comparing the incomparable that
ought to be acknowledged. Since Granderson's original sen-
tence was 60 months' probation plus a $2,000 fine, I must, in
order to concur in today's judgment, conclude, as I do, that
the five extra months of prison (beyond the Guidelines' 6-
month maximum imposable for the original offense) which
Granderson has served are worth at least $667 (one-third the
original fine) and that 11 months in prison are the equivalent
of 20 months' probation plus a $667 fine-because otherwise
I would have to consider imposing some or all of the $5,000
maximum fine imposable for the original offense, see USSG
§ 5E1.2(c)(3), or indeed consider departing upward from the
applicable Guidelines range, see 18 U. S. C. § 3553(b), towards
the 5-year imprisonment that is the statutory maximum for
the offense, see 18 U. S. C. § 1703(a). And Justice Ken-
nedy, even if he takes only the probation into account for
purposes of determining the "original sentence," must still
conclude, it seems to me, that 11 months in prison is at least
the equivalent of 20 months' probation-because otherwise
he would have to consider imposing some or all of the avail-
able $5,000 fine or departing upward from the Guidelines.
It is no easy task to determine how many days' imprison-
ment equals how many dollars' fine equals how many months'
probation. Comparing the incommensurate is always a
tricky business. See, e. g., Bendix Autolite Corp. v. Mid-
wesco Enterprises, Inc., 486 U. S. 888, 897 (1988) (Scalia, J.,
concurring in judgment). I frankly doubt that those who
drafted and adopted this language intended to impose that
task upon us; but I can neither pronounce the results reached
by a straightforward reading of the statute utterly absurd
nor discern any other self-evident disposition for which they
are an obviously mistaken replacement. Cf. Green v. Bock
Laundry Machine Co., 490 U. S. 504, 527 (1989) (Scalia, J.,
concurring in judgment). It seems to me that the other in-
terpretations proposed today suffer, in varying degrees, the
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60 UNITED STATES v. GRANDERSON
Kennedy, J., concurring in judgment
double curse of producing neither textually faithful results
nor plausibly intended ones. It is best, as usual, to apply
the statute as written, and to let Congress make the needed
repairs. That repairs are needed is perhaps the only thing
about this wretchedly drafted statute that we can all agree
upon.
For these reasons, I concur in the judgment of the Court.
Justice Kennedy, concurring in the judgment.
The Court's holding that the drug proviso in 18 U. S. C.
§ 3565(a) calls for a mandatory minimum sentence of two
months in prison rests upon two premises: first, that the
term "original sentence" means the maximum Guidelines
sentence that the district court could have, but did not, im-
pose at the initial sentencing; and, second, that the verb "sen-
tence" means only "sentence to imprisonment." Neither
premise is correct. As close analysis of the text and struc-
ture of the statute demonstrates, the proviso requires a man-
datory minimum sentence of a probation term one-third the
length of the initial term of probation. I concur in the judg-
ment only because Granderson, under my reading of the stat-
ute, was entitled to release from prison.
I
Section 3565(a) provides, in relevant part:
"If the defendant violates a condition of probation at any
time prior to the expiration or termination of the term
of probation, the court may . . .
"(1) continue him on probation, with or without ex-
tending the term or modifying or enlarging the condi-
tions; or
"(2) revoke the sentence of probation and impose any
other sentence that was available under subchapter A at
the time of the initial sentencing.
"Notwithstanding any other provision of this section,
if a defendant is found by the court to be in possession
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Kennedy, J., concurring in judgment
of a controlled substance, thereby violating the condition
imposed by section 3563(a)(3), the court shall revoke the
sentence of probation and sentence the defendant to not
less than one-third of the original sentence." (Empha-
sis added.)
The Court construes the term "original sentence" to refer
to the maximum sentence of imprisonment available under
the Guidelines at the initial sentencing. I accept, in sub-
stantial part, The Chief Justice's critique of the Court's
strained interpretation, and agree with him that "original
sentence" refers to the sentence of probation a defendant in
fact received at the initial sentencing. It is true that the
term "original sentence," standing alone, could be read to
encompass the entire original sentence, including any fine
imposed. When considered in context, however, it is prefer-
able to construe the term to refer only to the original sen-
tence of probation. The proviso instructs the district court
to "revoke the sentence of probation," but says nothing about
the fine imposed at the initial sentencing. Given this, the
subsequent reference to "one-third of the original sentence"
is better read to mean the probation component of the origi-
nal sentence, and not the whole sentence.
I disagree with both the Court and The Chief Justice,
however, in their conclusion that the verb "sentence" in the
proviso means only "sentence to imprisonment." Given the
statutory text and structure, the verb "sentence" can mean
either "sentence to probation" or "sentence to imprison-
ment." It follows, in my view, that the drug proviso calls
for a mandatory minimum sentence equal to a probation
term one-third the length of the original term of probation.
Before 1984, fines and imprisonment were the only sen-
tences in the federal system; probation, by contrast, was an
alternative to sentencing. See 18 U. S. C. § 3651 (1982). In
the Sentencing Reform Act of 1984, Congress altered this
understanding and made probation a kind of sentence. See
§ 3561(a) (defendant "may be sentenced to a term of proba-
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62 UNITED STATES v. GRANDERSON
Kennedy, J., concurring in judgment
tion"); United States Sentencing Commission, Guidelines
Manual ch. 7, pt. A2(a), p. 321 (Nov. 1993) (USSG) ("[T]he
Sentencing Reform Act recognized probation as a sentence
in itself"). Probation no longer entails some deviation from
a presumptive sentence of imprisonment, as the facts of this
case illustrate. Granderson's conviction for destruction of
mail, when considered in light of his criminal history cate-
gory, placed him in Zone A of the Guidelines Sentencing
Table, which carries a presumptive sentence of 0 to 6 months.
The Sentencing Guidelines authorize a sentence of probation
for defendants falling within Zone A, see USSG § 5B1.1(a)(1),
and set a maximum probation term of five years for the sub-
set of Zone A defendants of which Granderson is a member,
see § 5B1.2(a)(1). For defendants like Granderson, then,
probation is a sentence available at the initial sentencing,
no less so than a sentence of imprisonment. See 18 U. S. C.
§ 3553(a)(4) (the court, in determining sentence, "shall con-
sider . . . the kinds of sentence and the sentencing range
established for the applicable category of offense . . . as set
forth in the guidelines") (emphasis added). Because the
term "to sentence," if left unadorned, can bear any one of
three meanings, Congress took care, as a general matter, to
specify the type of punishment called for when it used "sen-
tence" as a verb in Chapter 227 of Title 18, the sentencing
provisions of the criminal code. See, e. g., § 3561(a) ("sen-
tenced to a term of probation"), § 3572(e) ("sentenced to
pay a fine"), § 3583(a) ("impos[e] a sentence to a term of
imprisonment").
Congress was less careful when drafting the provision now
before us, which does not specify whether the district court
should impose a fine, imprisonment, or another term of pro-
bation when revoking the original term of probation on ac-
count of drug possession. The Government brushes aside
this significant ambiguity, contending that "the language of
the statute, in context," demonstrates that Congress "plainly
intended" to require imprisonment. Brief for United States
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Kennedy, J., concurring in judgment
14, 15. The Government is correct to say that we must ex-
amine the context of the proviso to ascertain its meaning.
See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809
(1989). Close attention to that context, however, leads me
to conclude that Congress did not intend to require imprison-
ment upon revocation of the original term of probation.
Congress enacted the drug proviso as § 7303(a)(2) of the
Anti-Drug Abuse Act of 1988 (1988 Act). Pub. L. 100Â690,
102 Stat. 4181, 4464. Section 7303(b)(2) of the 1988 Act,
which concerns defendants serving a term of supervised re-
lease, provides that "[i]f the defendant is found by the court
to be in the possession of a controlled substance, the court
shall terminate the term of supervised release and require
the defendant to serve in prison not less than one-third of
the term of supervised release." 102 Stat. 4464, codified at
18 U. S. C. § 3583(g) (emphasis added).
Sections 7303(a)(2) and (b)(2) are, as the Government puts
it, "parallel and closely related." Brief for United States 26.
Both pertain to the consequences of drug possession for
defendants under some form of noncustodial supervision.
They differ, of course, in one fundamental respect: Section
7303(b)(2) explicitly provides for a revocation sentence of
imprisonment, while § 7303(a)(2) does not. The difference
is significant. " `[W]here Congress includes particular lan-
guage in one section of a statute but omits it in another sec-
tion of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.' " Gozlon-Peretz v. United States, 498 U. S. 395,
404 (1991), quoting Russello v. United States, 464 U. S. 16,
23 (1983) (internal quotation marks omitted). The presump-
tion loses some of its force when the sections in question are
dissimilar and scattered at distant points of a lengthy and
complex enactment. But in this case, given the parallel
structure of §§ 7303(a)(2) and (b)(2) and the fact that Con-
gress enacted both provisions in the same section of the same
Act, the presumption is strong. The disparate use of the
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64 UNITED STATES v. GRANDERSON
Kennedy, J., concurring in judgment
term "to serve in prison" is compelling evidence that Con-
gress intended to mandate incarceration as a revocation pun-
ishment in § 7303(b)(2), but not in § 7303(a)(2) (the § 3565(a)
drug proviso).
The Government interposes a structural argument of its
own. Before enactment of the drug proviso in the 1988 Act,
§ 3565(a) consisted only of subsections (a)(1) and (a)(2), which,
for all relevant purposes, took the same form as they do now.
Those provisions grant courts two options for defendants
who violate probation conditions that do not involve drugs
or guns. Section 3565(a)(1) permits a court to continue the
defendant on probation, with or without extending the term
or modifying or enlarging the conditions. As an alternative,
§ 3565(a)(2) permits a court to "revoke the sentence of proba-
tion and impose any other sentence that was available . . . at
the time of the initial sentencing." According to the Gov-
ernment, the two provisions make clear that the consequence
of revocation under § 3565(a)(2) is that, in light of § 3565(a)(1),
the court must impose a sentence other than probation,
namely imprisonment. The meaning borne by the phrase
"revoke the sentence of probation" in § 3565(a)(2), the Gov-
ernment concludes, must carry over when the same phrase
appears in the drug proviso.
This argument, which the Court accepts, see ante, at 45,
is not convincing. The conclusion that § 3565(a)(2) demands
imprisonment upon revocation of the original sentence of
probation does not rest upon anything inherent in the phrase
"revoke the sentence of probation." Rather, it follows from
the structure of §§ 3565(a)(1) and (a)(2). Congress set off
subsection (a)(2) as an alternative to subsection (a)(1), which
provides for every conceivable probation option. Thus, in
order to make sense of the statutory scheme, § 3565(a)(2)
should be read to require a punishment of something other
than probation: imprisonment. That consequence, however,
is due to the juxtaposition of subsection (a)(2) with subsec-
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Cite as: 511 U. S. 39 (1994) 65
Kennedy, J., concurring in judgment
tion (a)(1), not to Congress' use of the phrase "revoke the
sentence of probation" in § 3565(a)(2). Taken by itself, that
phrase requires termination of the original sentence of pro-
bation, but does not indicate the kind of sentence that must
be imposed in its place. The meaning assumed by the
phrase "revoke the sentence of probation" in the particular
context of § 3565(a)(2), then, does not travel when the same
phrase appears in a different context.
The Government's argument that "revoke the sentence of
probation," standing alone, must import a sentence of im-
prisonment also fails to account for how similar language is
used in § 7303(b)(2) of the 1988 Act. That provision, as noted
above, states that "the court shall terminate the term of
supervised release and require the defendant to serve in
prison not less than one-third of the term of supervised re-
lease" if a defendant is found in possession of drugs. 18
U. S. C. § 3583(g) (emphasis added). The statutory text sug-
gests that a subsequent sentence of imprisonment is not im-
plicit in the phrase "the court shall terminate the term of
supervised release"; had it been, Congress would not have
felt it necessary to mandate imprisonment in an explicit man-
ner. So there is little reason to think that Congress believed
imprisonment to be implicit in the parallel phrase "the court
shall revoke the sentence of probation" in the § 3565(a) drug
proviso, § 7303(a)(2) of the 1988 Act.
The Government's view suffers from a final infirmity. The
term "original sentence" refers to the sentence of probation
imposed at the initial sentencing. So if the proviso imposed
a minimum punishment of incarceration, the length of incar-
ceration must be tied to the length of the revoked sentence
of probation. That would be an odd result. " `[I]mprison-
ment is an `intrinsically different' form of punishment' " than
probation. Blanton v. North Las Vegas, 489 U. S. 538, 542
(1989), quoting Muniz v. Hoffman, 422 U. S. 454, 477 (1975).
Without belaboring the point, probation is a form of "condi-
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66 UNITED STATES v. GRANDERSON
Kennedy, J., concurring in judgment
tional liberty," Black v. Romano, 471 U. S. 606, 611 (1985),
while imprisonment is nothing of the sort. Transforming a
sentence of probation into a prison term via some mathemat-
ical formula would, in the words of one court to have consid-
ered this issue, constitute a form of "legal alchemy." United
States v. Gordon, 961 F. 2d 426, 433 (CA3 1992). In all
events, it is not what one would expect in the ordinary
course.
The Chief Justice is correct, of course, to say that it
would not be irrational for Congress to tie a mandatory mini-
mum sentence of imprisonment to the length of the original
probation term. Post, at 75. He is also correct to observe
that Congress would have been within its powers to write
such a result into law, and that Congress indeed provided for
a similar result in § 7303(b)(2) of the 1988 Act, 18 U. S. C.
§ 3583(g). Post, at 76. But these observations do not speak
to the only relevant question: whether Congress did so in
the text of the § 3565(a) drug proviso, viewed in light of the
statutory structure. For all of the above reasons, in my
view it did not.
In sum, the drug proviso does not mandate incarceration,
but rather must be read to permit a revocation sentence of
probation. Concluding that the mandatory minimum sen-
tence is a term of imprisonment would be inconsistent with
this reading, and would also lead to the anomaly of tying the
length of the mandated prison term to the original term of
probation. It follows that the mandatory minimum sentence
required by the drug proviso is a probation term equal to
one-third the length of the original term of probation.
Given that Congress did not eliminate the possibility of in-
carceration (for example, by drafting the proviso to require
a "sentence of probation"), the proviso gives the district
court the discretion to impose any prison term otherwise
available under the other portions of § 3565(a), which is more
severe than the mandatory minimum sentence of probation.
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Kennedy, J., concurring in judgment
II
It is unfortunate that Congress has drafted a criminal stat-
ute that is far from transparent; more unfortunate that the
Court has interpreted it to require imprisonment when the
text and structure call for a different result; but most unfor-
tunate that the Court has chosen such a questionable path to
reach its destination. I speak of the Court's speculation that
Congress drafted the § 3565(a) drug proviso with the pre-
1984 federal sentencing regime in mind. See ante, at 52Â53.
Reading the proviso to require Granderson to serve a 2-
month mandatory minimum sentence of imprisonment, the
Court reasons, "would fit the [pre-1984] scheme precisely."
Ante, at 53. And viewing the proviso in that light, the
Court adds, would avoid problems with both Granderson's
and the Government's interpretations. See ibid. Although
the Court purports not to place much reliance upon this ven-
ture in interpretive archaeology, its extended discussion of
the matter suggests otherwise.
This interpretive technique, were it to take hold, would be
quite a novel addition to the traditional rules that govern
our interpretation of criminal statutes. Some Members of
the Court believe that courts may look to "the language and
structure, legislative history, and motivating policies" when
reading a criminal statute in a manner adverse to a criminal
defendant. See United States v. R. L. C., 503 U. S. 291, 305
(1992) (plurality opinion) (internal quotation marks omitted).
Others would eschew reliance upon legislative history and
nebulous motivating policies when construing criminal stat-
utes. See id., at 308Â310 (Scalia, J., concurring). But, to
my knowledge, none of us has ever relied upon some vague
intuition of what Congress "might . . . have had in mind"
(ante, at 52) when drafting a criminal law. And I am certain
that we have not read a criminal statute against a criminal
defendant by attributing to Congress a mindset that reflects
a statutory framework that Congress itself had discarded
over four years earlier.
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68 UNITED STATES v. GRANDERSON
Kennedy, J., concurring in judgment
Of course, the Court thinks it has done Granderson and
probationers like him a great favor with its guesswork: As-
suming that the drug proviso mandates incarceration, the
Court's intuitions lead it to conclude that the mandatory min-
imum sentence of imprisonment here is 2, rather than 20,
months. But in its rush to achieve what it views as justice
in this case, the Court has missed a broader point: The stat-
ute, by word and design, does not mandate a punishment of
imprisonment on revocation. In my respectful submission,
had the Court adhered to the text and structure of the stat-
ute Congress enacted and the President signed, rather than
given effect to its own intuitions of what might have been on
Congress' mind at the time, it would have come to a different
conclusion. See Deal v. United States, 508 U. S. 129, 136Â
137 (1993). And the fortuity that Granderson himself does
not contend that the proviso permits a revocation sentence
of probation, see ante, at 54, n. 12, is no reason to overlook
that option here, given that our interpretation of the statute
binds all probationers, not just Granderson. Cf. Elder v.
Holloway, 510 U. S. 510, 514Â516, and n. 3 (1994).
Perhaps the result the Court reaches today may be sensi-
ble as a matter of policy, and may even reflect what some in
Congress hoped to accomplish. That result, however, does
not accord with the text of the statute Congress saw fit to
enact. Put in simple terms, if indeed Congress intended to
require the mandatory minimum sentence of imprisonment
the Court surmises, Congress fired a blank. See Puerto
Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp.,
485 U. S. 495, 501 (1988) ("[U]nenacted approvals, beliefs,
and desires are not laws"). It is beyond our province to res-
cue Congress from its drafting errors, and to provide for
what we might think, perhaps along with some Members
of Congress, is the preferred result. See Smith v. United
States, 508 U. S. 223, 247, n. 4 (1993) (Scalia, J., dissenting)
("Stretching language in order to write a more effective stat-
ute than Congress devised is not an exercise we should
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Cite as: 511 U. S. 39 (1994) 69
Rehnquist, C. J., dissenting
indulge in"); Pavelic & LeFlore v. Marvel Entertainment
Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126
(1989) ("Our task is to apply the text, not to improve upon
it"); United States v. Locke, 471 U. S. 84, 95 (1985) ("[T]he
fact that Congress might have acted with greater clarity or
foresight does not give courts a carte blanche to redraft stat-
utes in an effort to achieve that which Congress is perceived
to have failed to do"). This admonition takes on a particular
importance when the Court construes criminal laws. "[B]e-
cause of the seriousness of criminal penalties, and because
criminal punishment usually represents the moral condemna-
tion of the community, legislatures and not courts should de-
fine criminal activity," United States v. Bass, 404 U. S. 336,
348 (1971), and set the punishments therefor, see Bifulco v.
United States, 447 U. S. 381 (1980).
Under any of the three interpretations set forth in the
opinions filed today, there are bound to be cases where the
mandatory sentence will make little sense or appear anoma-
lous when compared with sentences imposed in similar cases.
Some incongruities, however, are inherent in any statute
providing for mandatory minimum sentences.
In my view, it is not necessary to invoke the rule of lenity
here, for the text and structure of the statute yield but one
proper answer. But assuming, as the Court does, that the
rule comes into play, I would have thought that it demands
the interpretation set forth above. For these reasons, I con-
cur only in the judgment.
Chief Justice Rehnquist, with whom Justice Thomas
joins, dissenting.
The Court today interprets the term "original sentence,"
as it appears in 18 U. S. C. § 3565(a), to mean "the maximum
sentence, under the relevant Sentencing Guidelines range,
which a defendant could have received, but did not, when
initially sentenced." I think this interpretation ignores the
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70 UNITED STATES v. GRANDERSON
Rehnquist, C. J., dissenting
most natural meaning of these two words, and I therefore
dissent.
Section 3565(a) does not indicate on its face whether a de-
fendant found in violation of probation must be sentenced to
prison or resentenced to another term of probation. I agree
with the Court that § 3565(a) must be read to require imposi-
tion of a term of imprisonment; otherwise, as the Court ex-
plains, the proviso would be senseless.1 See ante, at 45; In
re Chapman, 166 U. S. 661, 667 (1897) ("[N]othing is better
settled than that statutes should receive a sensible construc-
tion, such as will effectuate the legislative intention, and, if
possible, so as to avoid an unjust or an absurd conclusion").
If the Court had stopped there, I would have been happy to
join its opinion. Having correctly resolved one ambiguity in
§ 3565(a), however, the Court proceeds to find another, re-
garding the meaning of the term "original sentence," where
none exists. The Court thus ultimately concludes, incor-
rectly in my view, that the rule of lenity should be applied.
The Court believes that the Government's reading of
§ 3565(a) is not "unambiguously correct." Ante, at 54. As
we have explained, however, the rule of lenity should not be
applied "merely because it [is] possible to articulate a con-
struction more narrow than that urged by the Government."
Moskal v. United States, 498 U. S. 103, 108 (1990). Instead
we have reserved lenity for those situations where, after
"[a]pplying well-established principles of statutory construc-
tion," Gozlon-Peretz v. United States, 498 U. S. 395, 410
(1991), there still remains "a grievous ambiguity or uncer-
1 The option of imposing a fine after revocation is also foreclosed. As a
matter of common usage, the prepositional phrase following a noun need
not be repeated when the noun appears again in the same sentence.
Thus, § 3565(a) reads: "[T]he court shall revoke the sentence of probation
and sentence the defendant to not less than one-third of the original sen-
tence [of probation]." (Emphasis added.) "[N]ot less than one-third" of
a term of probation is a period of time. A fine cannot follow revocation,
then, because a fine is measured in money, not time.
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Cite as: 511 U. S. 39 (1994) 71
Rehnquist, C. J., dissenting
tainty in the language and structure of the Act," Chapman
v. United States, 500 U. S. 453, 463 (1991) (internal quotation
marks and citation omitted).
The term "original sentence" is not defined in the statute.
A basic principle of statutory construction provides that
where words in a statute are not defined, they "must be
given their ordinary meaning." Id., at 462; see also Smith
v. United States, 508 U. S. 223, 228 (1993) ("When a word is
not defined by statute, we normally construe it in accord
with its ordinary or natural meaning").
Whether one consults a dictionary or common sense, the
meaning of "original sentence" is plain: The term refers to
the initial judgment imposing punishment on a defendant.
"Original" is commonly understood to mean "initial" or "first
in order." See Webster's Third New International Diction-
ary 1592 (1971) (Webster's) (defining "original" as "of or re-
lating to a rise or beginning . . . initial, primary"); Black's
Law Dictionary 1099 (6th ed. 1990) (defining "original" as
"[p]rimitive" or "first in order"). "Sentence," in turn, is or-
dinarily meant in the context of criminal law to refer to the
judgment or order "by which a court or judge imposes pun-
ishment or penalty upon a person found guilty." Webster's
2068; see also Black's Law Dictionary, supra, at 1362 (defin-
ing "sentence" as "[t]he judgment . . . imposing the punish-
ment to be inflicted, usually in the form of a fine, incarcera-
tion, or probation").2 In the context of § 3565(a), the term
"original sentence" thus must refer to the sentence of proba-
tion a defendant actually received when initially sentenced.
It cannot, therefore, mean what the Court says it means: the
maximum sentence which a defendant could have received,
but did not.
The Court's interpretation thus founders, I believe, be-
cause the word "sentence" does not ordinarily, or even occa-
2 Federal sentencing law also consistently uses the word "sentence" to
refer to the punishment actually imposed on a defendant. See, e. g., 18
U. S. C. §§ 3551(b) and (c), 3553(a), (b), (c), and (e), and 3554Â3558.
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72 UNITED STATES v. GRANDERSON
Rehnquist, C. J., dissenting
sionally, refer to a range of available punishment. Nor does
the modifying word "original" support the Court's interpre-
tation, because "original" is nowhere defined as "potential"
or "available," nor can it be so construed. Yet under the
Court's interpretation of the term "original sentence," if we
know that "sentence" itself does not mean an available range
of punishment, then "original" must be twisted to mean what
we know it cannot-i. e., "potential" or "available." 3
This Court has on many occasions demonstrated its clear
understanding of the term "original sentence." See, e. g.,
Hicks v. Feiock, 485 U. S. 624, 639, and n. 11 (1988) (using
term "original sentence" to refer to sentence of imprison-
ment initially imposed and suspended); Tuten v. United
States, 460 U. S. 660, 666Â667, and n. 11 (1983) (using term
"original sentence" to refer to period of probation imposed
by sentencing court when youthful defendant was initially
sentenced); United States v. DiFrancesco, 449 U. S. 117, 135
(1980), and id., at 148 (Brennan, J., dissenting) (both using
term "original sentence" to refer to sentence imposed upon
defendant at conclusion of first trial); North Carolina v.
Pearce, 395 U. S. 711, 713, and n. 1 (1969), and id., at 743
(Black, J., concurring in part and dissenting in part) (same);
Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 53 (1937)
3 Congress itself, in the subsections preceding and following the provi-
sion at issue here, distinguishes between "original" and "available." Sec-
tions 3565(a)(2) and (b) provide that under certain circumstances, a court
can or must "revoke the sentence of probation and impose any other sen-
tence that was available . . . at the time of the initial sentencing." (Em-
phasis added.) If "original" and "available" were in fact synonymous, or
if "sentence" could mean an available range of punishment, Congress could
have simply stated in §§ 3565(a)(2) and (b) that upon revocation of proba-
tion, a court can or must "impose the original sentence." See United
States v. Sosa, 997 F. 2d 1130, 1133 (CA5 1993) ("The statute taken as a
whole demonstrates that Congress knew how to refer to the sentence the
defendant could have received at the time of the initial sentencing. In-
stead, . . . Congress used the term `original sentence,' which plainly refers
to the sentence imposed on the defendant for his original crime").
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Cite as: 511 U. S. 39 (1994) 73
Rehnquist, C. J., dissenting
(same). As these and numerous other opinions show,4 we
have until today invariably used "original sentence" just as
one would expect: to refer to the punishment imposed upon
a defendant when he was first sentenced, and to distinguish
that initial sentence from a sentence the defendant received
after some intervening event-such as a new trial, see
Pearce, supra, or a revocation of probation, see Hicks,
supra.5
The Court's heretofore firm grasp on the meaning of "orig-
inal sentence" should not be cause for wonder or surprise.
Whether alone or in combination, the definitions of "original"
and "sentence" simply do not seem open to serious debate.
Once the term "original sentence" is accorded its ordinary
meaning, the operation of § 3565(a) becomes perfectly clear.6
4 The term "original sentence" appears in at least 50 prior opinions.
Rather than citing them all, suffice it to say that a review of these opinions
reveals that the term is not once used to refer to the range of punishment
potentially applicable when a defendant was first sentenced.
5 Although the term "original sentence" does not appear in other provi-
sions of the Federal Criminal Code chapter on sentencing, it does appear
in other federal statutes and rules. In each instance, the term refers to
the sentence initially imposed upon a defendant. See, e. g., Fed. Rule
Crim. Proc. 35(a)(2) (directing sentencing courts to correct sentences upon
remand from a court of appeals if, after further sentencing proceedings,
"the court determines that the original sentence was incorrect"); 10
U. S. C. § 863 (providing that upon rehearing in a court-martial, "no sen-
tence in excess of or more severe than the original sentence may be im-
posed"). The term is similarly used in the Federal Sentencing Guidelines.
See, e. g., United States Sentencing Commission, Guidelines Manual
§ 4A1.2(k) (Nov. 1993) (using term "original sentence" to refer to sentence
previously imposed upon defendant); § 7B1.4, comment., n. 4 (same).
6 The Court suggests that if "original sentence" is given its ordinary
meaning, the statute will have to be interpreted to require the absurd
result that a revocation sentence be another term of probation. See ante,
at 47Â48, n. 5. I do not see at all how or why the latter proposition follows
from the former. The Court rightly rejects interpreting the statute to
require reimposition of probation because that would be a senseless read-
ing, and it would be senseless regardless of what the term "original sen-
tence" means. See ante, at 44Â45. It is thus beyond me why the Court
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74 UNITED STATES v. GRANDERSON
Rehnquist, C. J., dissenting
It follows, from another elementary canon of construction,
that the plain language of § 3565(a) should control. See
Moskal, 498 U. S., at 108. As we stated in Consumer Prod-
uct Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108
(1980), "[a]bsent a clearly expressed legislative intention to
the contrary, [the statutory] language must ordinarily be re-
garded as conclusive." 7
The Court offers several reasons for rejecting the most
natural reading of § 3565(a). None of them persuades. The
Court begins by suggesting that if Congress meant for the
sentence of probation to be used to calculate the length of
incarceration, it could have stated so more clearly. See
ante, at 46. Although perhaps true, Congress could have
just as easily, if it wished, stated in clear terms that the
sentence of incarceration should be calculated based on the
maximum available sentence under the Guidelines range.
Indeed, as I have already noted, supra, at 72, n. 3, Congress
stated something very similar in the subsections preceding
and following the one at issue, where it provided that upon
revocation of probation, a court can or must impose any sen-
tence that was "available" when the defendant was initially
sentenced. See §§ 3565(a)(2) and (b); United States v. Sosa,
997 F. 2d 1130, 1133 (CA5 1993); United States v. Byrkett,
961 F. 2d 1399, 1400Â1401 (CA8 1992) ("If Congress, in refer-
ring to the `original sentence,' meant the Guidelines range
seems to think that according the term "original sentence" its most natu-
ral reading would require it to readopt a reading of the statute that it
justifiably discarded as senseless.
7 The Court suggests that the legislative history of § 3565(a) casts doubt
upon the Government's interpretation. Yet even the Court recognizes
that the legislative history is, at best, inconclusive. See ante, at 49
("None of the legislators' expressions . . . focuses on `the precise meaning
of the provision at issue in this case' ") (quoting Brief for United States
24, and n. 4); see also ante, at 51Â53, and n. 11. Where the language of a
statute is clear, that language, rather than "isolated excerpts from the
legislative history," should be followed. Patterson v. Shumate, 504 U. S.
753, 761, and n. 4 (1992).
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Rehnquist, C. J., dissenting
applicable at the time of the initial sentencing, it would have
simply said, `any other sentence that was available . . . at
the time of the initial sentencing,' as it did" in §§ 3565(a)(2)
and (b)).
The Court also asserts that its reading of the term avoids
according two different meanings to the word "sentence."
Yet under the Court's own interpretation, the word "sen-
tence" when used as a verb refers to the imposition of a fixed
period of incarceration; but when the word "sentence" next
appears, as a noun, the Court concludes that it refers to a
range of available punishment. Thus it is the Court's read-
ing of the statute that fails " `to give . . . a similar con-
struction' " to a word used as both a noun and a verb in a
single statutory sentence. See ante, at 46 (quoting Reves v.
Ernst & Young, 507 U. S. 170, 177 (1993)). Under what I
think is the correct reading of the statute, all that changes
is what the defendant will be (or was) sentenced to-prison
or probation; the word "sentence" itself does not change
meanings.
The Court next contends that " `[p]robation and imprison-
ment are not fungible,' " ante, at 46 (citation omitted), and
that its interpretation of the statute avoids the "shoal" sup-
posedly encountered when explaining "how multiplying a
sentence of probation by one-third can yield a sentence of
imprisonment," ante, at 47. Probation and imprisonment,
however, need not be fungible for this statute to make sense.
They need only both be subsumed under the term "sen-
tence," which, for the reasons previously stated, they are.
See Black's Law Dictionary, at 1362 (defining "sentence" as
a judgment imposing punishment, which may include "a fine,
incarceration, or probation"). While tying the length of im-
prisonment to the length of the original sentence of proba-
tion might seem harsh to the Court, surely it is not an irra-
tional method of calculation. Indeed, the Court does not
question that Congress could have tied the length of impris-
onment to the length of the original sentence of probation.
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76 UNITED STATES v. GRANDERSON
Rehnquist, C. J., dissenting
Congress in fact prescribed a similar method of calculation
in a parallel provision of the Anti-Drug Abuse Act of 1988,
18 U. S. C. § 3583(g), which was added at the same time as
§ 3565(a) and which also sets out the punishment for defend-
ants found in possession of a controlled substance. Section
3583(g) explicitly provides: "If the defendant is found by
the court to be in the possession of a controlled substance,
the court shall terminate the term of supervised release and
require the defendant to serve in prison not less than one-
third of the term of supervised release." Considering that
§§ 3565(a) and 3583(g) were enacted at the same time and
are directed at precisely the same problem, it seems quite
reasonable to construe them in pari materia to call for par-
allel treatment of drug offenders under noncustodial supervi-
sion. Whatever the differences between supervised release
and probation, surely supervised release is more like proba-
tion than it is like imprisonment. That Congress explicitly
chose in § 3583(g) to tie the length of imprisonment to the
length of supervised release suggests quite strongly that
Congress meant in § 3565(a) to use length of the original sen-
tence of probation as the basis for calculation. At the very
least, the method of calculation prescribed in § 3583(g) re-
moves the imaginary "shoal" which blocks the Court's way
to a sensible construction of § 3565(a).
The Court refuses to read these provisions in pari mate-
ria because a sentence of probation is normally-but not nec-
essarily-longer than a period of supervised release. See
ante, at 50Â51, and n. 8. Simply because the end result of
the calculation might be different in some cases, however, is
not a persuasive reason for refusing to recognize the obvious
similarity in the methods of calculation. Nor is it irrational
for Congress to have decided that, in general, those defend-
ants who have already been incarcerated should return to
prison for a shorter time than those who have served no time
in prison.
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Rehnquist, C. J., dissenting
Here, as in other portions of its opinion, the Court ex-
presses concern with the apparent harshness of the result if
"original sentence" is interpreted to mean the sentence of
probation initially imposed on a defendant.8 In some cases
the result may indeed appear harsh. Yet harsh punishment,
in itself, is neither a legitimate ground for invalidating a stat-
ute nor cause for injecting ambiguity into a statute that is
susceptible to principled statutory construction. See Calla-
nan v. United States, 364 U. S. 587, 596 (1961) ("The rule
[of lenity] comes into operation at the end of the process of
construing what Congress has expressed, not at the begin-
ning as an overriding consideration of being lenient to
wrongdoers"). A straightforward reading of § 3565(a) may
in some cases call for imposition of severe punishment, but
it does not produce "a result so absurd or glaringly unjust,
as to raise a reasonable doubt about Congress' intent."
Chapman, 500 U. S., at 463Â464 (internal quotation marks
and citations omitted).
The Court's interpretation of § 3565(a), finally, creates an
incurable uncertainty: It offers no sound basis for choosing
8 The Court expresses disbelief that Congress could have intended to
authorize punishment for drug-possessing probationers so much more se-
vere than the punishment authorized for the probationer's original offense.
Ante, at 48Â49. I think the Court misses two points. First, as the Court
itself seems to recognize, the maximum punishment authorized for re-
spondent's original offense is not the Guidelines range, but the maximum
statutory sentence. See 18 U. S. C. §§ 1703(a), 3553(b), 3559(a)(4), and
3581(b)(4). In respondent's case, the punishment authorized for his origi-
nal offense is therefore exactly equal to the punishment authorized for his
probation violation-five years' imprisonment. See § 1703(a). Second,
Congress provided for equally harsh revocation sentences in the subsec-
tions preceding and following § 3565(a). By allowing sentencing courts to
impose "any other sentence that was available . . . at the time of the initial
sentencing," §§ 3565(a)(2) and (b), Congress authorized these courts to
impose the maximum statutory sentence upon revocation of probation.
Thus, if respondent's probation had been revoked pursuant to §§ 3565(a)(2)
or (b), he would have faced the same maximum revocation sentence he
faces under § 3565(a)-five years' imprisonment.
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78 UNITED STATES v. GRANDERSON
Rehnquist, C. J., dissenting
which point in the Guidelines range should serve as the basis
for calculating a revocation sentence. After describing the
four possible reference points within the range, the Court
selects the maximum available sentence. It rejects select-
ing a point in the middle of the available range, because to
do so "would be purely arbitrary." Ante, at 55. Yet the
Court does not explain why choosing the top end of the range
is any less arbitrary, or any more "sensible," than picking a
point in the middle of the range. Indeed, the Court's selec-
tion smacks of awarding a consolation prize to the Govern-
ment simply out of concern that the Government was mistak-
enly done out of victory in the main event. And choosing
the maximum possible sentence under the Guidelines hardly
seems consistent with the rule of lenity which the Court pur-
ports to apply.9
A straightforward reading of § 3565(a) creates no similar
uncertainty. Because I think the language of § 3565(a) is
clear, I would apply it. Accordingly, I would reverse the
Court of Appeals.
9 The Government suggests that if "original sentence" does not refer to
the sentence of probation imposed, then it might just as readily refer to
the statutory sentence. The Court rejects this suggestion because impos-
ing the maximum statutory sentence would require an upward departure
from the Guidelines range, and probation "is a most unlikely prospect" in
any case involving an upward departure. Ante, at 56, n. 14. Thus, ac-
cording to the Court, it "makes scant sense" to assume that "original sen-
tence" is the statutory maximum sentence. Ibid. By the same reason-
ing, however, it makes little sense to assume that the maximum Guidelines
sentence is the "original sentence," as probation is an "unlikely prospect"
in any case where a defendant would otherwise receive the maximum
available sentence under the Guidelines. Indeed, if the plausibility of the
potential sentence is the Court's guide, one would think the Court would
choose the bottom of the Guidelines range as its benchmark.
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
OCTOBER TERM, 1993 79
Syllabus
POWELL v. NEVADA
certiorari to the supreme court of nevada
No. 92Â8841. Argued February 22, 1994-Decided March 30, 1994
Petitioner Powell was arrested on November 3, 1989, for felony child
abuse. Not until November 7, however, did a Magistrate find probable
cause to hold him for a preliminary hearing. The child in question sub-
sequently died of her injuries, and Powell was charged additionally with
her murder. At the trial, the state prosecutor presented prejudicial
statements Powell had made to the police on November 7. The jury
found him guilty and sentenced him to death. On appeal, the Nevada
Supreme Court, sua sponte, raised the question whether the 4-day delay
in judicial confirmation of probable cause violated the Fourth Amend-
ment, in view of County of Riverside v. McLaughlin, 500 U. S. 44, which
held that a judicial probable-cause determination must generally be
made within 48 hours of a warrantless arrest, and that, absent extraordi-
nary circumstances, a longer delay is unconstitutional. The state court
decided that McLaughlin was inapplicable to Powell's case, because his
prosecution commenced prior to the rendition of that decision.
Held: The Nevada Supreme Court erred in failing to recognize that
McLaughlin's 48-hour rule must be applied retroactively, for under
Griffith v. Kentucky, 479 U. S. 314, 328, "a . . . rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or
federal, . . . not yet final" when the rule is announced. Although the
4-day delay here was presumptively unreasonable under McLaughlin,
it does not necessarily follow that Powell must be set free or gain other
relief. Several questions remain open for decision on remand, including
the appropriate remedy for a delay in determining probable cause (an
issue not resolved by McLaughlin), the consequence of Powell's failure
to raise the federal question, and whether introduction at trial of what
Powell said on November 7 was "harmless" in view of a similar, albeit
shorter, statement he made prior to his arrest. Pp. 83Â85.
108 Nev. 700, 838 P. 2d 921, vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Blackmun,
Stevens, O'Connor, Scalia, Kennedy, and Souter, JJ., joined.
Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., joined,
post, p. 85.
Michael Pescetta argued the cause and filed briefs for
petitioner.
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
80 POWELL v. NEVADA
Opinion of the Court
Dan M. Seaton argued the cause and filed a brief for
respondent.
Miguel A. Estrada argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were Solicitor General Days, Assistant Attorney General
Harris, and Deputy Solicitor General Bryson.*
Justice Ginsburg delivered the opinion of the Court.
In Gerstein v. Pugh, 420 U. S. 103 (1975), we held that the
Fourth Amendment's shield against unreasonable seizures
requires a prompt judicial determination of probable cause
following an arrest made without a warrant and ensuing de-
tention. County of Riverside v. McLaughlin, 500 U. S. 44
(1991), established that "prompt" generally means within 48
hours of the warrantless arrest; absent extraordinary cir-
cumstances, a longer delay violates the Fourth Amendment.
In the case now before us, the Supreme Court of Nevada
stated that McLaughlin does not apply to a prosecution com-
menced prior to the rendition of that decision. We hold that
the Nevada Supreme Court misread this Court's precedent:
"[A] . . . rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, . . . not yet
final" when the rule is announced. Griffith v. Kentucky, 479
U. S. 314, 328 (1987).
*Briefs of amici curiae urging affirmance were filed for the State of
Utah et al. by Jan Graham, Attorney General of Utah, Carol Clawson,
Solicitor General, and J. Kevin Murphy, Assistant Attorney General,
Grant Woods, Attorney General of Arizona, John M. Bailey, Chief State's
Attorney of Connecticut, Robert A. Marks, Attorney General of Hawaii,
Larry EchoHawk, Attorney General of Idaho, Robert T. Stephan, Attorney
General of Kansas, Chris Gorman, Attorney General of Kentucky, Richard
P. Ieyoub, Attorney General of Louisiana, Scott Harshbarger, Attorney
General of Massachusetts, Joseph P. Mazurek, Attorney General of Mon-
tana, Fred DeVesa, Attorney General of New Jersey, Susan B. Loving,
Attorney General of Oklahoma, Lee Fisher, Attorney General of Ohio, and
T. Travis Medlock, Attorney General of South Carolina; and for the Crimi-
nal Justice Legal Foundation by Kent S. Scheidegger.
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
Cite as: 511 U. S. 79 (1994) 81
Opinion of the Court
I
Petitioner Kitrich Powell was arrested on Friday, Novem-
ber 3, 1989, for felony child abuse of his girlfriend's 4-year-
old daughter, in violation of Nev. Rev. Stat. § 200.508 (1991).
That afternoon, the arresting officer prepared a sworn decla-
ration describing the cause for and circumstances of the ar-
rest. Not until November 7, 1989, however, did a Magis-
trate find probable cause to hold Powell for a preliminary
hearing. That same day, November 7, Powell made state-
ments to the police, prejudicial to him, which the prosecutor
later presented at Powell's trial. Powell was not personally
brought before a Magistrate until November 13, 1989. By
that time, the child had died of her injuries, and Powell was
charged additionally with her murder.
A jury found Powell guilty of first-degree murder and, fol-
lowing a penalty hearing, sentenced him to death. On ap-
peal to the Nevada Supreme Court, Powell argued that the
State had violated Nevada's "initial appearance" statute by
failing to bring him before a magistrate within 72 hours, and
that his conviction should therefore be reversed.
The Nevada statute governing appearances before a mag-
istrate provides:
"If an arrested person is not brought before a magis-
trate within 72 hours after arrest, excluding nonjudicial
days, the magistrate:
"(a) Shall give the prosecuting attorney an opportu-
nity to explain the circumstances leading to the delay;
and"(b) May release the arrested person if he determines
that the person was not brought before a magistrate with-
out unnecessary delay." Nev. Rev. Stat. § 171.178(3)
(1991).
Powell emphasized that 10 days had elapsed between his ar-
rest on November 3, 1989, and his November 13 initial ap-
pearance before a Magistrate. In view of the incriminating
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
82 POWELL v. NEVADA
Opinion of the Court
statements he made on November 7, Powell contended, the
unlawful delay was prejudicial to him. Under Nevada law,
Powell asserted, vindication of his right to a speedy first
appearance required that his conviction be reversed, and
that he be set free. Appellant's Opening Brief in No. 22348
(Nev.), p. 85.
The district attorney maintained before the Nevada Su-
preme Court that there had been no fatal violation of Neva-
da's initial appearance statute. First, the district attorney
urged, the confirmation of probable cause by a Magistrate on
November 7 occurred within 72 hours of the November 3
arrest (excluding the intervening weekend). This probable-
cause finding, the district attorney contended, satisfied the
72-hour prescription of Nev. Rev. Stat. § 171.178. In any
event, the district attorney continued, under Nevada law, an
accused waives his right to a speedy arraignment when he
voluntarily waives his right to remain silent and his right to
counsel. Powell did so, the district attorney said, when he
made his November 7 statements, after he was read his Mi-
randa rights and waived those rights. See Respondent's
Answering Brief in No. 22348 (Nev.), pp. 56Â60. In reply,
Powell vigorously contested the district attorney's portrayal
of the probable-cause determination as tantamount to an ini-
tial appearance sufficient to satisfy Nev. Rev. Stat. § 171.178's
72-hour prescription. Powell pointed out that he "was
neither present [n]or advised of the magistrate's finding."
Appellant's Reply Brief in No. 22348 (Nev.), p. 1.
The Nevada Supreme Court concluded, in accord with the
district attorney's assertion, that Powell had waived his
right under state law to a speedy arraignment. 108 Nev.
700, 705, 838 P. 2d 921, 924Â925 (1992). If the Nevada Su-
preme Court had confined the decision to that point, its opin-
ion would have resolved no federal issue. But the Nevada
Supreme Court said more. Perhaps in response to the dis-
trict attorney's contention that the Magistrate's November 7
probable-cause notation satisfied Nev. Rev. Stat. § 171.178 (a
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
Cite as: 511 U. S. 79 (1994) 83
Opinion of the Court
contention the State now disavows), the Nevada Supreme
Court, sua sponte, raised a federal concern. That court de-
toured from its state-law analysis to inquire whether the No-
vember 3 to November 7, 1989, delay in judicial confirmation
of probable cause violated the Fourth Amendment under this
Court's precedents.
County of Riverside v. McLaughlin, 500 U. S. 44 (1991),
the Nevada Supreme Court recognized, made specific the
probable-cause promptness requirement of Gerstein v. Pugh,
420 U. S. 103 (1975); McLaughlin instructed that a delay ex-
ceeding 48 hours presumptively violates the Fourth Amend-
ment. Merging the speedy initial appearance required by
Nevada statute and the prompt probable-cause determina-
tion required by the Fourth Amendment, the Nevada Su-
preme Court declared: "The McLaughlin case renders [Nev.
Rev. Stat. § ]171.178(3) unconstitutional insofar [as] it permits
an initial appearance up to seventy-two hours after arrest
and instructs that non-judicial days be excluded from the cal-
culation of those hours." 108 Nev., at 705, 838 P. 2d, at 924.
While instructing that, henceforth, probable-cause determi-
nations be made within 48 hours of a suspect's arrest, the
Nevada Supreme Court held McLaughlin inapplicable "to
the case at hand," because that recent precedent postdated
Powell's arrest. 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1.
McLaughlin announced a new rule, the Nevada Supreme
Court observed, and therefore need not be applied retroac-
tively. 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1.
Powell petitioned for our review raising the question
whether a state court may decline to apply a recently ren-
dered Fourth Amendment decision of this Court to a case
pending on direct appeal. We granted certiorari, 510 U. S.
811 (1993), and now reject the state court's prospectivity
declaration.
II
Powell's arrest was not validated by a magistrate until
four days elapsed. That delay was presumptively unreason-
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
84 POWELL v. NEVADA
Opinion of the Court
able under McLaughlin's 48-hour rule. The State so con-
cedes. Appellee's Answer to Petition for Rehearing in No.
22348 (Nev.), p. 7; Tr. of Oral Arg. 28. The State further
concedes that the Nevada Supreme Court's retroactivity
analysis was incorrect. See ibid. We held in Griffith v.
Kentucky, 479 U. S., at 328, that "a new rule for the conduct
of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet
final." Griffith stressed two points. First, "the nature of
judicial review . . . precludes us from `[s]imply fishing one
case from the stream of appellate review, using it as a vehicle
for pronouncing new constitutional standards, and then per-
mitting a stream of similar cases subsequently to flow by
unaffected by that new rule.' " Id., at 323 (quoting Mackey
v. United States, 401 U. S. 667, 679 (1971) (Harlan, J., con-
curring in judgment)). Second, "selective application of
new rules violates the principle of treating similarly situated
defendants the same." Griffith, supra, at 323. Assuming,
arguendo, that the 48-hour presumption announced in Mc-
Laughlin qualifies as a "new rule," cf. Teague v. Lane, 489
U. S. 288, 299Â310 (1989), Griffith nonetheless entitles Powell
to rely on McLaughlin for this simple reason: Powell's con-
viction was not final when McLaughlin was announced.
It does not necessarily follow, however, that Powell must
"be set free," 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1, or
gain other relief, for several questions remain open for deci-
sion on remand. In particular, the Nevada Supreme Court
has not yet closely considered the appropriate remedy for a
delay in determining probable cause (an issue not resolved
by McLaughlin), or the consequences of Powell's failure to
raise the federal question, or the district attorney's argu-
ment that introduction at trial of what Powell said on No-
vember 7, 1989, was "harmless" in view of a similar, albeit
shorter, statement Powell made on November 3, prior to his
arrest. See Brief for Respondent 22. Expressing no opin-
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
Cite as: 511 U. S. 79 (1994) 85
Thomas, J., dissenting
ion on these issues,* we hold only that the Nevada Supreme
Court erred in failing to recognize that Griffith v. Kentucky
calls for retroactive application of McLaughlin's 48-hour
rule.
* * *
For the reasons stated, the judgment of the Nevada
Supreme Court is vacated, and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Thomas, with whom The Chief Justice joins,
dissenting.
After concluding that the Nevada Supreme Court erred by
failing to follow our decision in Griffith v. Kentucky, 479 U. S.
*Justice Thomas would reach out and decide the first of these ques-
tions, though it is not presented in the petition for review. He would rule
inappropriate "suppression of [Powell's November 7] statement . . . be-
cause the statement was not a product of the McLaughlin violation."
Post, at 89. It is "settled law," he maintains, post, at 88, that if probable
cause in fact existed for Powell's detention, then McLaughlin's 48-hour
rule, though violated, triggers no suppression remedy. Quite the oppo-
site, Justice Thomas recognizes, is "settled law" regarding search war-
rants: A court's postsearch validation of probable cause will not render
the evidence admissible. See Vale v. Louisiana, 399 U. S. 30, 35, 34 (1970)
(absent circumstances justifying a warrantless search, it is "constitutional
error [to] admi[t] into evidence the fruits of the illegal search," "even
though the authorities ha[d] probable cause to conduct it").
Justice Thomas maintains, however, that our precedents, especially
New York v. Harris, 495 U. S. 14 (1990), already establish that no suppres-
sion is required in Powell's case. In Harris, we held that violation of the
Fourth Amendment's rule against warrantless arrests in a dwelling, see
Payton v. New York, 445 U. S. 573 (1980), generally does not lead to the
suppression of a postarrest confession. But Powell does not complain of
police failure to obtain a required arrest warrant. He targets a different
constitutional violation-failure to obtain authorization from a magistrate
for a significant period of pretrial detention. Whether a suppression rem-
edy applies in that setting remains an unresolved question. Because the
issue was not raised, argued, or decided below, we should not settle it here.
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
86 POWELL v. NEVADA
Thomas, J., dissenting
314 (1987), the Court remands this case without deciding
whether the ultimate judgment below, despite the error, was
correct. In my view, the lower court's judgment upholding
petitioner's conviction was correct under settled legal princi-
ples, and therefore should be affirmed.
I
The petition for certiorari in this case presented a single
question for review-namely, whether a particular decision
of this Court concerning criminal procedure should apply
retroactively to all cases pending on direct review. This
question was well settled at the time the petition was filed,
and had been since our decision in Griffith, in which we
stated that "a new rule for the conduct of criminal prosecu-
tions is to be applied retroactively to all cases, state or fed-
eral, pending on direct review or not yet final." 479 U. S.,
at 328. The Nevada Supreme Court made a statement to
the contrary in a footnote in its opinion. See infra, at 87.
Notwithstanding this obvious mistake, Griffith's rule of ret-
roactivity had generated little or no confusion among the
lower courts. In my view, under these circumstances, the
writ was improvidently granted.
According to this Court's Rule 10.1, "[a] petition for a writ
of certiorari will be granted only when there are special and
important reasons therefor." Not only were there no spe-
cial or important reasons favoring review in this case, but,
as Justice Stewart once wrote: "The only remarkable thing
about this case is its presence in this Court. For the case
involves no more than the application of well-settled princi-
ples to a familiar situation, and has little significance except
for the [parties]." Butz v. Glover Livestock Commission
Co., 411 U. S. 182, 189 (1973) (dissenting opinion). As the
Court has observed in the past, "it is very important that
we be consistent in not granting the writ of certiorari except
in cases involving principles the settlement of which is of
importance to the public as distinguished from that of the
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
Cite as: 511 U. S. 79 (1994) 87
Thomas, J., dissenting
parties, and in cases where there is a real and embarrassing
conflict of opinion and authority between the circuit courts
of appeal." Layne & Bowler Corp. v. Western Well Works,
Inc., 261 U. S. 387, 393 (1923). We make poor use of judicial
resources when, as here, we take a case merely to reaffirm
(without revisiting) settled law. See generally Estelle v.
Gamble, 429 U. S. 97, 115 (1976) (Stevens, J., dissenting);
United States v. Shannon, 342 U. S. 288, 294Â295 (1952)
(opinion of Frankfurter, J.).
Now that we have invested time and resources in full
briefing and oral argument, however, we must decide how
properly to dispose of the case. The Court vacates and re-
mands because the Nevada Supreme Court erred, not in its
judgment, but rather in its "prospectivity declaration."
Ante, at 83. The "declaration" to which the Court refers is
the state court's statement that our decision in County of
Riverside v. McLaughlin, 500 U. S. 44 (1991), does "not apply
retroactively." 108 Nev. 700, 705, n. 1, 838 P. 2d 921, 924,
n. 1 (1992). The Court correctly rules that McLaughlin
does apply retroactively. See Griffith, supra. Rather than
remanding, I believe that the Court in this instance can and
should definitively resolve the case before us: "Our job . . . is
to review judgments, not to edit opinions . . . ." Phillips
Petroleum Co. v. Shutts, 472 U. S. 797, 823 (1985) (Stevens,
J., concurring in part and dissenting in part). See also
K mart Corp. v. Cartier, Inc., 485 U. S. 176, 185 (1988); Black
v. Cutter Laboratories, 351 U. S. 292, 297 (1956).
Of course, when there is a need for further factfinding or
for proceedings best conducted in the lower courts, or where
the ultimate question to be decided depends on debatable
points of law that have not been briefed or argued, we regu-
larly determine that the best course is to remand. See, e. g.,
Pierce v. Underwood, 487 U. S. 552, 574 (1988) (vacating
award of attorney's fees and remanding for recalculation of
fee award). Those concerns, however, do not require a re-
mand in this case. In defense of the judgment below, re-
511US1$32Z 06-11-96 20:26:40 PAGES OPINPGT
88 POWELL v. NEVADA
Thomas, J., dissenting
spondent and its amici have properly raised a number of
arguments, see Blum v. Bacon, 457 U. S. 132, 137, n. 5 (1982),
which have been fully briefed. As I explain below, at least
one of those arguments provides a ground for decision that
would require only the application of settled law to the undis-
puted facts in the record before us. Under these circum-
stances, remanding will merely require the needless expendi-
ture of further judicial resources on a claim that lacks merit.
II
While in petitioner's care on November 2, 1989, 4-year-old
Melea Allen suffered massive head and spinal injuries.
When petitioner took her to the hospital the following day,
November 3, she was comatose and suffering respiratory fail-
ure. Petitioner told doctors and nurses that she had fallen
from his shoulders during play. When emergency room per-
sonnel discovered that Melea also had numerous bruises and
lacerations on her body-injuries that suggested she had
been abused repeatedly-they called the police. Petitioner
spoke to the officers who responded to the call and again
explained that the child's injuries were the result of an acci-
dental fall.
Several hours later, the police arrested petitioner for child
abuse. Within an hour of the arrest, officers prepared a dec-
laration of arrest that recited the above facts to establish
probable cause. Petitioner was still in custody on Novem-
ber 7, when, after receiving Miranda warnings, he agreed to
give a second statement to the police. He repeated the
same version of events he had given at the hospital before
his arrest, but in slightly more detail. On that same day, a
Magistrate, relying on the facts recited in the declaration of
arrest described above, determined that petitioner's arrest
had been supported by probable cause. The next day Melea
died, and petitioner was charged with first-degree murder.
Petitioner contends that respondent's delay in securing a
prompt judicial determination of probable cause to arrest
511US1$32Z 06-11-96 20:26:41 PAGES OPINPGT
Cite as: 511 U. S. 79 (1994) 89
Thomas, J., dissenting
him for child abuse violated the rule that a probable-cause
determination must, absent extenuating circumstances, be
made by a judicial officer within 48 hours of a warrantless
arrest. McLaughlin, supra. The McLaughlin error, peti-
tioner argues, required suppression of the custodial state-
ment he made on November 7, which was introduced against
him at trial.
Against that argument, respondent and its amici raise
several contentions: first, that suppression of evidence would
never be an appropriate remedy for a McLaughlin violation;
second, that the statement at issue here was not a product
of the McLaughlin error, or at least that the connection be-
tween the McLaughlin violation and the statement is so at-
tenuated that suppression is not required; third, that sup-
pression is inappropriate under Illinois v. Krull, 480 U. S.
340 (1987), because the officers acted in good-faith reliance
on a state statute that authorized delays of up to 72 hours
(excluding weekends and holidays) in presenting a defendant
to a magistrate; and finally, that even if the statement should
have been suppressed, admitting it at trial was harmless
error. Even assuming, arguendo, that suppression is a
proper remedy for McLaughlin errors, see ante, at 85, n.,
I believe that, on the facts of this case, suppression of peti-
tioner's statement would not be appropriate because the
statement was not a product of the McLaughlin violation.
Our decisions make clear "that evidence will not be ex-
cluded as `fruit' [of an unlawful act] unless the illegality is at
least the `but for' cause of the discovery of the evidence."
Segura v. United States, 468 U. S. 796, 815 (1984). As Se-
gura suggests, "but for" causation is a necessary, but not
sufficient, condition for suppression: "[W]e have declined to
adopt a per se or but for rule that would make inadmissible
any evidence . . . which somehow came to light through a
chain of causation that began with a [violation of the Fourth
or Fifth Amendment]." New York v. Harris, 495 U. S. 14, 17
511US1$32Z 06-11-96 20:26:41 PAGES OPINPGT
90 POWELL v. NEVADA
Thomas, J., dissenting
(1990) (internal quotation marks omitted). See also United
States v. Ceccolini, 435 U. S. 268, 276 (1978).
Contrary to petitioner's arguments, the violation of
McLaughlin (as opposed to his arrest and custody) bore no
causal relationship whatsoever to his November 7 statement.
The timing of the probable-cause determination would have
affected petitioner's statement only if a proper hearing at or
before the 48-hour mark would have resulted in a finding of
no probable cause. Yet, as the Magistrate found, the police
had probable cause to suspect petitioner of child abuse, cf.
Illinois v. Gates, 462 U. S. 213 (1983), and there is no sugges-
tion that the delay in securing a determination of probable
cause permitted the police to gather additional evidence to
be presented to the Magistrate. On the contrary, the Magis-
trate based his determination on the facts included in the
declaration of arrest that was completed within an hour of
petitioner's arrest. Thus, if the probable-cause determina-
tion had been made within 48 hours as required by Mc-
Laughlin, the same information would have been presented,
the same result would have obtained, and none of the circum-
stances of petitioner's custody would have been altered.
Moreover, it cannot be argued that the McLaughlin error
somehow made petitioner's custody unlawful and thereby
rendered the statement the product of unlawful custody. Be-
cause the arresting officers had probable cause to arrest peti-
tioner, he was lawfully arrested at the hospital. Cf. Harris,
supra, at 18.1 The presumptively unconstitutional delay in
1 The fact that the arrest was supported by probable cause and was not
investigatory in nature fully distinguishes this case from our decisions in
Taylor v. Alabama, 457 U. S. 687 (1982), Brown v. Illinois, 422 U. S. 590
(1975), and Dunaway v. New York, 442 U. S. 200 (1979). Where probable
cause for an arrest is lacking, as it was in each of those cases, evidence
obtained as a result of the Fourth Amendment violation "bear[s] a suffi-
ciently close relationship to the underlying illegality [to require suppres-
sion]." New York v. Harris, 495 U. S. 14, 19 (1990). The presence of
probable cause, by contrast, validates the arrest and attendant custody,
despite " `technical' violations of Fourth Amendment rights" that may
511US1$32Z 06-11-96 20:26:41 PAGES OPINPGT
Cite as: 511 U. S. 79 (1994) 91
Thomas, J., dissenting
securing a judicial determination of probable cause during a
period of lawful custody did not render that custody illegal.
We have never suggested that lawful custody becomes un-
lawful due to a failure to obtain a prompt judicial finding of
probable cause-that is, probable cause does not disappear
if not judicially determined within 48 hours. Cf. United
States v. Montalvo-Murillo, 495 U. S. 711, 722 (1990) ("[A]
person does not become immune from detention because of
a timing violation").
In short, the statement does not even meet the threshold
requirement of being a "product" of the McLaughlin viola-
tion.2 Petitioner's statement, "while the product of an ar-
have occurred during either. Brown, supra, at 611 (Powell, J., concurring
in part). See also Harris, supra, at 18 (holding that even though the
police violated the rule of Payton v. New York, 445 U. S. 573 (1980), by
arresting a suspect in his house without a warrant, the resulting custody
was lawful because the arrest was supported by probable cause, and that
therefore the suspect's subsequent custodial statement was admissible).
As the Court notes, ante, at 85, n., a different rule applies to search
warrants. In that context, we have insisted that, absent exigent circum-
stances, police officers obtain a search warrant, even if they had probable
cause to conduct the search, see, e. g., Coolidge v. New Hampshire, 403
U. S. 443, 454Â455 (1971), and we have required suppression of all fruits
of an unlawful search, unless an exception to the exclusionary rule applies.
See generally Illinois v. Krull, 480 U. S. 340, 347Â349 (1987). The same
rule has not been applied to arrests. "[W]hile the Court has expressed a
preference for the use of arrest warrants when feasible, it has never invali-
dated an arrest supported by probable cause solely because the officers
failed to secure a warrant." Gerstein v. Pugh, 420 U. S. 103, 113 (1975)
(citations omitted). Nor has the Court required suppression of voluntary
custodial statements made after an arrest supported by probable cause
based solely on the officers' failure to obtain a warrant. See Harris,
supra. Petitioner's statement was the product of his arrest and custody,
and there is no reason to think that the rules we have developed in the
search warrant context should apply in this case.
2 Thus, conventional attenuation principles are inapplicable in this case,
for as we pointed out in Harris, "attenuation analysis is only appropriate
where, as a threshold matter, courts determine that `the challenged evi-
dence is in some sense the product of illegal governmental activity.' " 495
U. S., at 19 (quoting United States v. Crews, 445 U. S. 463, 471 (1980)).
511US1$32Z 06-11-96 20:26:41 PAGES OPINPGT
92 POWELL v. NEVADA
Thomas, J., dissenting
rest and being in custody, was not the fruit of the fact" that
a judicial determination of probable cause was not made
within the 48-hour period mandated by McLaughlin. Har-
ris, supra, at 20. Under these circumstances, suppression
is not warranted under our precedents.
* * *
For the foregoing reasons, the judgment below should be
affirmed.
I respectfully dissent.
511us1$33Z 11-04-97 19:32:37 PAGES OPINPGT
OCTOBER TERM, 1993 93
Syllabus
OREGON WASTE SYSTEMS, INC. v. DEPARTMENT
OF ENVIRONMENTAL QUALITY OF THE
STATE OF OREGON et al.
certiorari to the supreme court of oregon
No. 93Â70. Argued January 18, 1994-Decided April 4, 1994*
Oregon imposes a $2.25 per ton surcharge on the in-state disposal of solid
waste generated in other States and an $0.85 per ton fee on the disposal
of waste generated within Oregon. Petitioners sought review of the
out-of-state surcharge in the State Court of Appeals, challenging the
administrative rule establishing the surcharge and its enabling statutes
under, inter alia, the Commerce Clause. The court upheld the statutes
and rule, and the State Supreme Court affirmed. Despite the Oregon
statutes' explicit reference to out-of-state waste's geographical location,
the court reasoned, the surcharge's express nexus to actual costs in-
curred by state and local government rendered it a facially constitu-
tional "compensatory fee."
Held: Oregon's surcharge is facially invalid under the negative Commerce
Clause. Pp. 98Â108.
(a) The first step in analyzing a law under the negative Commerce
Clause is to determine whether it discriminates against, or regulates
evenhandedly with only incidental effects on, interstate commerce. If
the restriction is discriminatory-i. e., favors in-state economic interests
over their out-of-state counterparts-it is virtually per se invalid. By
contrast, nondiscriminatory regulations are valid unless the burden
imposed on interstate commerce is "clearly excessive in relation to the
putative local benefits." Pike v. Bruce Church, Inc., 397 U. S. 137, 142.
Oregon's surcharge is obviously discriminatory on its face. It subjects
waste from other States to a fee almost three times greater than the
charge imposed on in-state waste, and the statutory determinant for
whether the fee applies is whether or not the waste was generated out
of state. The alleged compensatory aim of the surcharge has no bear-
ing on whether it is facially discriminatory. See Chemical Waste Man-
agement, Inc. v. Hunt, 504 U. S. 334, 340Â341. Pp. 98Â100.
(b) Because the surcharge is discriminatory, the virtually per se rule
of invalidity-not the Pike balancing test-provides the proper legal
*Together with No. 93Â108, Columbia Resource Co. v. Environmental
Quality Commission of the State of Oregon, also on certiorari to the
same court.
511us1$33Z 11-04-97 19:32:37 PAGES OPINPGT
94 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Syllabus
standard for these cases. Thus, the surcharge must be invalidated un-
less respondents can show that it advances a legitimate local purpose
that cannot be adequately served by reasonable nondiscriminatory alter-
natives. Neither of respondents' justifications passes strict scrutiny.
For the surcharge to be justified as a "compensatory tax" necessary to
make shippers of out-of-state waste pay their "fair share" of disposal
costs, it must be the rough equivalent of an identifiable and substantially
similar surcharge on intrastate commerce. However, respondents have
failed to identify a specific charge on intrastate commerce equal to or
exceeding the surcharge; the $0.85 per ton fee on in-state waste is only
about one-third of the challenged surcharge. Even assuming that vari-
ous other means of general taxation, such as state income taxes, could
serve as a roughly equivalent intrastate burden, respondents' argument
fails because the levies are not imposed on substantially equivalent
events: Taxes on earning income and utilizing Oregon landfills are en-
tirely different kinds of taxes. Nor can the surcharge be justified by
respondents' argument that Oregon has a valid interest in spreading the
costs of the disposal of Oregon waste, but not out-of-state waste, to all
Oregonians. Because Oregon's scheme necessarily results in shippers
of out-of-state waste bearing the full costs of disposal with shippers of
Oregon waste bearing less than the full cost, it necessarily incorporates
an illegitimate protectionist objective. Wyoming v. Oklahoma, 502
U. S. 437, 454. Recharacterizing the surcharge as "resource protection-
ism"-discouraging the importation of out-of-state waste in order to
conserve more landfill space for in-state waste-hardly advances re-
spondents' cause. A State may not accord its own inhabitants a pre-
ferred right of access over consumers in other States to its natural re-
sources. Philadelphia v. New Jersey, 437 U. S. 617, 627. Sporhase v.
Nebraska ex rel. Douglas, 458 U. S. 941, distinguished. Pp. 100Â107.
316 Ore. 99, 849 P. 2d 500, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Stevens,
O'Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined.
Rehnquist, C. J., filed a dissenting opinion, in which Blackmun, J.,
joined, post, p. 108.
Andrew J. Pincus argued the cause for petitioners in both
cases. With him on the briefs for petitioners in No. 93Â70
were James E. Benedict and J. Laurence Cable. John Di-
Lorenzo, Jr., filed briefs for petitioner in No. 93Â108.
Thomas A. Balmer, Deputy Attorney General of Oregon,
argued the cause for respondents in both cases. With him
on the brief were Theodore R. Kulongoski, Attorney Gen-
511us1$33Z 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 95
Opinion of the Court
eral, Virginia L. Linder, Solicitor General, and Michael D.
Reynolds, Assistant Solicitor General.
Justice Thomas delivered the opinion of the Court.
Two Terms ago, in Chemical Waste Management, Inc. v.
Hunt, 504 U. S. 334 (1992), we held that the negative Com-
merce Clause prohibited Alabama from imposing a higher
fee on the disposal in Alabama landfills of hazardous waste
from other States than on the disposal of identical waste
from Alabama. In reaching that conclusion, however, we
left open the possibility that such a differential surcharge
might be valid if based on the costs of disposing of waste
from other States. Id., at 346, n. 9. Today, we must decide
whether Oregon's purportedly cost-based surcharge on the
in-state disposal of solid waste generated in other States
violates the Commerce Clause.
I
Like other States, Oregon comprehensively regulates the
disposal of solid wastes within its borders.1 Respondent
A brief of amici curiae urging affirmance was filed for the State of
Indiana et al. by Pamela Carter, Attorney General of Indiana, and Arend
J. Abel, Matthew R. Gutwein, and Myra P. Spicker, Deputy Attorneys
General, and by the Attorneys General for their respective States as
follows: Winston Bryant of Arkansas, Robert A. Butterworth of Florida,
Chris Gorman of Kentucky, Michael E. Carpenter of Maine, Mike Moore
of Mississippi, Joseph P. Mazurek of Montana, Lee Fisher of Ohio, Susan
B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, T. Travis
Medlock of South Carolina, Mark Barnett of South Dakota, Joseph B.
Meyer of Wyoming, and James E. Doyle of Wisconsin.
1 Oregon defines "solid wastes" as "all putrescible and nonputrescible
wastes, including but not limited to garbage, rubbish, refuse, ashes, waste
paper and cardboard; sewage sludge, septic tank and cesspool pumpings or
other sludge; commercial, industrial, demolition and construction wastes;
discarded or abandoned vehicles or parts thereof; discarded home and
industrial appliances; manure, vegetable or animal solid and semisolid
wastes, dead animals, infectious waste . . . and other wastes." Ore. Rev.
Stat. § 459.005(27) (1991). Hazardous wastes are not considered solid
wastes. § 459.005(27)(a).
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
96 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Opinion of the Court
Oregon Department of Environmental Quality oversees the
State's regulatory scheme by developing and executing plans
for the management, reduction, and recycling of solid wastes.
To fund these and related activities, Oregon levies a wide
range of fees on landfill operators. See, e. g., Ore. Rev. Stat.
§§ 459.235(3), 459.310 (1991). In 1989, the Oregon Legisla-
ture imposed an additional fee, called a "surcharge," on
"every person who disposes of solid waste generated out-of-
state in a disposal site or regional disposal site." § 459.297(1)
(effective Jan. 1, 1991). The amount of that surcharge was
left to respondent Environmental Quality Commission (Com-
mission) to determine through rulemaking, but the legisla-
ture did require that the resulting surcharge "be based on
the costs to the State of Oregon and its political subdivisions
of disposing of solid waste generated out-of-state which are
not otherwise paid for" under specified statutes. § 459.298.
At the conclusion of the rulemaking process, the Commission
set the surcharge on out-of-state waste at $2.25 per ton.
Ore. Admin. Rule 340Â97Â120(7) (Sept. 1993).
In conjunction with the out-of-state surcharge, the legisla-
ture imposed a fee on the in-state disposal of waste gener-
ated within Oregon. See Ore. Rev. Stat. §§ 459A.110(1), (5)
(1991). The in-state fee, capped by statute at $0.85 per ton
(originally $0.50 per ton), is considerably lower than the fee
imposed on waste from other States. §§ 459A.110(5) and
459A.115. Subsequently, the legislature conditionally ex-
tended the $0.85 per ton fee to out-of-state waste, in addition
to the $2.25 per ton surcharge, § 459A.110(6), with the pro-
viso that if the surcharge survived judicial challenge, the
$0.85 per ton fee would again be limited to in-state waste.
1991 Ore. Laws, ch. 385, §§ 91Â92.2
2 As a result, shippers of out-of-state solid waste currently are being
charged $3.10 per ton to dispose of such waste in Oregon landfills, as com-
pared to the $0.85 per ton fee charged to dispose of Oregon waste in those
same landfills. We refer hereinafter only to the $2.25 surcharge, because
the $0.85 per ton fee, which will be refunded to shippers of out-of-state
511US1 Unit: $U33 [11-04-99 07:31:08] PAGES PGT: OPIN
Cite as: 511 U. S. 93 (1994) 97
Opinion of the Court
The anticipated court challenge was not long in coming.
Petitioners, Oregon Waste Systems, Inc. (Oregon Waste),
and Columbia Resource Company (CRC), joined by Gilliam
County, Oregon, sought expedited review of the out-of-state
surcharge in the Oregon Court of Appeals. Oregon Waste
owns and operates a solid waste landfill in Gilliam County, at
which it accepts for final disposal solid waste generated in
Oregon and in other States. CRC, pursuant to a 20-year
contract with Clark County, in neighboring Washington
State, transports solid waste via barge from Clark County
to a landfill in Morrow County, Oregon. Petitioners chal-
lenged the administrative rule establishing the out-of-state
surcharge and its enabling statutes under both state law and
the Commerce Clause of the United States Constitution.
The Oregon Court of Appeals upheld the statutes and rule.
Gilliam County v. Department of Environmental Quality,
114 Ore. App. 369, 837 P. 2d 965 (1992).
The State Supreme Court affirmed. Gilliam County v.
Department of Environmental Quality of Oregon, 316 Ore.
99, 849 P. 2d 500 (1993). As to the Commerce Clause, the
court recognized that the Oregon surcharge resembled the
Alabama fee invalidated in Chemical Waste Management,
Inc. v. Hunt, 504 U. S. 334 (1992), in that both prescribed
higher fees for the disposal of waste from other States. Nev-
ertheless, the court viewed the similarity as superficial only.
Despite the explicit reference in § 459.297(1) to out-of-state
waste's geographic origin, the court reasoned, the Oregon
surcharge is not facially discriminatory "[b]ecause of [its] ex-
press nexus to actual costs incurred [by state and local gov-
ernment]." 316 Ore., at 112, 849 P. 2d, at 508. That nexus
distinguished Chemical Waste, supra, by rendering the sur-
charge a "compensatory fee," which the court viewed as
"prima facie reasonable," that is to say, facially constitu-
tional. 316 Ore., at 112, 849 P. 2d, at 508. The court read
waste if the surcharge is upheld, 1991 Ore. Laws, ch. 385, § 92, is not chal-
lenged here.
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
98 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Opinion of the Court
our case law as invalidating compensatory fees only if they
are " `manifestly disproportionate to the services rendered.' "
Ibid. (quoting Clark v. Paul Gray, Inc., 306 U. S. 583, 599
(1939)). Because Oregon law restricts the scope of judicial
review in expedited proceedings to deciding the facial legal-
ity of administrative rules and the statutes underlying them,
Ore. Rev. Stat. § 183.400 (1991), the Oregon court deemed
itself precluded from deciding the factual question whether
the surcharge on out-of-state waste was disproportionate.
316 Ore., at 112, 849 P. 2d, at 508.
We granted certiorari, 509 U. S. 953 (1993), because the
decision below conflicted with a recent decision of the United
States Court of Appeals for the Seventh Circuit.3 We now
reverse.
II
The Commerce Clause provides that "[t]he Congress shall
have Power . . . [t]o regulate Commerce . . . among the sev-
eral States." Art. I, § 8, cl. 3. Though phrased as a grant
of regulatory power to Congress, the Clause has long been
understood to have a "negative" aspect that denies the
States the power unjustifiably to discriminate against or bur-
den the interstate flow of articles of commerce. See, e. g.,
Wyoming v. Oklahoma, 502 U. S. 437, 454 (1992); Welton v.
Missouri, 91 U. S. 275 (1876). The Framers granted Con-
gress plenary authority over interstate commerce in "the
conviction that in order to succeed, the new Union would
have to avoid the tendencies toward economic Balkanization
that had plagued relations among the Colonies and later
among the States under the Articles of Confederation."
Hughes v. Oklahoma, 441 U. S. 322, 325Â326 (1979). See
generally The Federalist No. 42 (J. Madison). "This princi-
ple that our economic unit is the Nation, which alone has the
gamut of powers necessary to control of the economy, . . . has
3 Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d
1267 (1992), cert. denied, 506 U. S. 1053 (1993).
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 99
Opinion of the Court
as its corollary that the states are not separable economic
units." H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525,
537Â538 (1949).
Consistent with these principles, we have held that the first
step in analyzing any law subject to judicial scrutiny under
the negative Commerce Clause is to determine whether it
"regulates evenhandedly with only `incidental' effects on in-
terstate commerce, or discriminates against interstate com-
merce." Hughes, supra, at 336. See also Chemical Waste,
504 U. S., at 340Â341. As we use the term here, "discrimina-
tion" simply means differential treatment of in-state and
out-of-state economic interests that benefits the former and
burdens the latter. If a restriction on commerce is discrimi-
natory, it is virtually per se invalid. Id., at 344, n. 6. See
also Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978).
By contrast, nondiscriminatory regulations that have only
incidental effects on interstate commerce are valid unless
"the burden imposed on such commerce is clearly excessive
in relation to the putative local benefits." Pike v. Bruce
Church, Inc., 397 U. S. 137, 142 (1970).
In Chemical Waste, we easily found Alabama's surcharge
on hazardous waste from other States to be facially discrimi-
natory because it imposed a higher fee on the disposal of
out-of-state waste than on the disposal of identical in-state
waste. 504 U. S., at 342. We deem it equally obvious here
that Oregon's $2.25 per ton surcharge is discriminatory on
its face. The surcharge subjects waste from other States to
a fee almost three times greater than the $0.85 per ton
charge imposed on solid in-state waste. The statutory
determinant for which fee applies to any particular ship-
ment of solid waste to an Oregon landfill is whether or not
the waste was "generated out-of-state." Ore. Rev. Stat.
§ 459.297(1) (1991). It is well established, however, that a
law is discriminatory if it " `tax[es] a transaction or incident
more heavily when it crosses state lines than when it occurs
entirely within the State.' " Chemical Waste, supra, at 342
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
100 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Opinion of the Court
(quoting Armco Inc. v. Hardesty, 467 U. S. 638, 642 (1984)).
See also American Trucking Assns., Inc. v. Scheiner, 483
U. S. 266, 286 (1987).4
Respondents argue, and the Oregon Supreme Court held,
that the statutory nexus between the surcharge and "the
[otherwise uncompensated] costs to the State of Oregon and
its political subdivisions of disposing of solid waste generated
out-of-state," Ore. Rev. Stat. § 459.298 (1991), necessarily
precludes a finding that the surcharge is discriminatory. We
find respondents' narrow focus on Oregon's compensatory
aim to be foreclosed by our precedents. As we reiterated
in Chemical Waste, the purpose of, or justification for, a law
has no bearing on whether it is facially discriminatory. See
504 U. S., at 340Â341. See also Philadelphia, supra, at 626.
Consequently, even if the surcharge merely recoups the costs
of disposing of out-of-state waste in Oregon, the fact remains
that the differential charge favors shippers of Oregon waste
over their counterparts handling waste generated in other
States. In making that geographic distinction, the sur-
charge patently discriminates against interstate commerce.
III
Because the Oregon surcharge is discriminatory, the virtu-
ally per se rule of invalidity provides the proper legal stand-
ard here, not the Pike balancing test. As a result, the sur-
charge must be invalidated unless respondents can "sho[w]
4 The dissent argues that the $2.25 per ton surcharge is so minimal in
amount that it cannot be considered discriminatory, even though the sur-
charge expressly applies only to waste generated in other States. Post,
at 115. The dissent does not attempt to reconcile that novel understand-
ing of discrimination with our precedents, which clearly establish that the
degree of a differential burden or charge on interstate commerce "meas-
ures only the extent of the discrimination" and "is of no relevance to the
determination whether a State has discriminated against interstate com-
merce." Wyoming v. Oklahoma, 502 U. S. 437, 455 (1992). See also, e. g.,
Maryland v. Louisiana, 451 U. S. 725, 760 (1981) ("We need not know how
unequal [a] [t]ax is before concluding that it . . . discriminates").
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 101
Opinion of the Court
that it advances a legitimate local purpose that cannot be
adequately served by reasonable nondiscriminatory alterna-
tives." New Energy Co. of Ind. v. Limbach, 486 U. S. 269,
278 (1988). See also Chemical Waste, supra, at 342Â343.
Our cases require that justifications for discriminatory
restrictions on commerce pass the "strictest scrutiny."
Hughes, 441 U. S., at 337. The State's burden of justification
is so heavy that "facial discrimination by itself may be a fatal
defect." Ibid. See also Westinghouse Elec. Corp. v. Tully,
466 U. S. 388, 406Â407 (1984); Maryland v. Louisiana, 451
U. S. 725, 759Â760 (1981).
At the outset, we note two justifications that respondents
have not presented. No claim has been made that the dis-
posal of waste from other States imposes higher costs on
Oregon and its political subdivisions than the disposal of in-
state waste.5 Also, respondents have not offered any safety
or health reason unique to nonhazardous waste from other
States for discouraging the flow of such waste into Oregon.
Cf. Maine v. Taylor, 477 U. S. 131 (1986) (upholding ban on
importation of out-of-state baitfish into Maine because such
baitfish were subject to parasites completely foreign to
Maine baitfish). Consequently, respondents must come for-
ward with other legitimate reasons to subject waste from
other States to a higher charge than is levied against waste
from Oregon.
5 In fact, the Commission fixed the $2.25 per ton cost of disposing of solid
waste in Oregon landfills without reference to the origin of the waste, 3
Record 665Â690, and Oregon's economic consultant recognized that the per
ton costs are the same for both in-state and out-of-state waste. Id., at
731Â732, 744. Of course, if out-of-state waste did impose higher costs on
Oregon than in-state waste, Oregon could recover the increased cost
through a differential charge on out-of-state waste, for then there would
be a "reason, apart from its origin, why solid waste coming from outside
the [State] should be treated differently." Fort Gratiot Sanitary Land-
fill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353, 361 (1992).
Cf. Mullaney v. Anderson, 342 U. S. 415, 417 (1952); Toomer v. Witsell,
334 U. S. 385, 399 (1948).
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
102 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Opinion of the Court
Respondents offer two such reasons, each of which we
address below.
A
Respondents' principal defense of the higher surcharge on
out-of-state waste is that it is a "compensatory tax" neces-
sary to make shippers of such waste pay their "fair share" of
the costs imposed on Oregon by the disposal of their waste
in the State. In Chemical Waste we noted the possibility
that such an argument might justify a discriminatory sur-
charge or tax on out-of-state waste. See 504 U. S., at 346,
n. 9. In making that observation, we implicitly recognized
the settled principle that interstate commerce may be made
to " `pay its way.' " Complete Auto Transit, Inc. v. Brady,
430 U. S. 274, 281 (1977). See also Maryland, supra, at 754.
"It was not the purpose of the commerce clause to relieve
those engaged in interstate commerce from their just share
of state tax burden[s]." Western Live Stock v. Bureau of
Revenue, 303 U. S. 250, 254 (1938). See also Henneford v.
Silas Mason Co., 300 U. S. 577 (1937). Nevertheless, one of
the central purposes of the Clause was to prevent States
from "exacting more than a just share" from interstate com-
merce. Department of Revenue of Wash. v. Association of
Wash. Stevedoring Cos., 435 U. S. 734, 748 (1978) (emphasis
added). See also Northwestern States Portland Cement Co.
v. Minnesota, 358 U. S. 450, 462 (1959).
At least since our decision in Hinson v. Lott, 8 Wall. 148
(1869), these principles have found expression in the "com-
pensatory" or "complementary" tax doctrine. Though our
cases sometimes discuss the concept of the compensatory tax
as if it were a doctrine unto itself, it is merely a specific
way of justifying a facially discriminatory tax as achieving
a legitimate local purpose that cannot be achieved through
nondiscriminatory means. See Chemical Waste, supra, at
346, n. 9 (referring to the compensatory tax doctrine as a
"justif[ication]" for a facially discriminatory tax). Under
that doctrine, a facially discriminatory tax that imposes on
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Cite as: 511 U. S. 93 (1994) 103
Opinion of the Court
interstate commerce the rough equivalent of an identifiable
and "substantially similar" tax on intrastate commerce does
not offend the negative Commerce Clause. Maryland,
supra, at 758Â759. See also Tyler Pipe Industries, Inc. v.
Washington State Dept. of Revenue, 483 U. S. 232, 242Â243
(1987); Armco, 467 U. S., at 643.
To justify a charge on interstate commerce as a compensa-
tory tax, a State must, as a threshold matter, "identif[y] . . .
the [intrastate tax] burden for which the State is attempt-
ing to compensate." Maryland, supra, at 758. Once that
burden has been identified, the tax on interstate commerce
must be shown roughly to approximate-but not exceed-
the amount of the tax on intrastate commerce. See, e. g.,
Alaska v. Arctic Maid, 366 U. S. 199, 204Â205 (1961). Fi-
nally, the events on which the interstate and intrastate taxes
are imposed must be "substantially equivalent"; that is, they
must be sufficiently similar in substance to serve as mutually
exclusive "prox[ies]" for each other. Armco, supra, at 643.
As Justice Cardozo explained for the Court in Henneford,
under a truly compensatory tax scheme "the stranger from
afar is subject to no greater burdens as a consequence of
ownership than the dweller within the gates. The one pays
upon one activity or incident, and the other upon another,
but the sum is the same when the reckoning is closed." 300
U. S., at 584.6
6 The Oregon Supreme Court, though terming the out-of-state surcharge
a "compensatory fee," relied for its legal standard on our "user fee" cases.
See 316 Ore. 99, 112, 849 P. 2d 500, 508 (1993) (citing, for example,
Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc.,
405 U. S. 707 (1972), and Clark v. Paul Gray, Inc., 306 U. S. 583 (1939)).
The compensatory tax cases cited in the text, rather than the user fee
cases, are controlling here, as the latter apply only to "charge[s] imposed
by the State for the use of state-owned or state-provided transportation
or other facilities and services." Commonwealth Edison Co. v. Montana,
453 U. S. 609, 621 (1981). Because it is undisputed that, as in Chemical
Waste, the landfills in question are owned by private entities, including
Oregon Waste, the out-of-state surcharge is plainly not a user fee. Nev-
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
104 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Opinion of the Court
Although it is often no mean feat to determine whether a
challenged tax is a compensatory tax, we have little difficulty
concluding that the Oregon surcharge is not such a tax. Or-
egon does not impose a specific charge of at least $2.25 per
ton on shippers of waste generated in Oregon, for which the
out-of-state surcharge might be considered compensatory.
In fact, the only analogous charge on the disposal of Oregon
waste is $0.85 per ton, approximately one-third of the
amount imposed on waste from other States. See Ore. Rev.
Stat. §§ 459A.110(5), 459A.115 (1991). Respondents' failure
to identify a specific charge on intrastate commerce equal
to or exceeding the surcharge is fatal to their claim. See
Maryland, 451 U. S., at 758.
Respondents argue that, despite the absence of a specific
$2.25 per ton charge on in-state waste, intrastate commerce
does pay its share of the costs underlying the surcharge
through general taxation.7 Whether or not that is true is
difficult to determine, as "[general] tax payments are re-
ceived for the general purposes of the [government], and are,
upon proper receipt, lost in the general revenues." Flast v.
Cohen, 392 U. S. 83, 128 (1968) (Harlan, J., dissenting). Even
assuming, however, that various other means of general tax-
ation, such as income taxes, could serve as an identifiable
intrastate burden roughly equivalent to the out-of-state sur-
charge, respondents' compensatory tax argument fails be-
cause the in-state and out-of-state levies are not imposed on
substantially equivalent events.
ertheless, even if the surcharge could somehow be viewed as a user fee,
it could not be sustained as such, given that it discriminates against inter-
state commerce. See Evansville, supra, at 717; Guy v. Baltimore, 100
U. S. 434 (1880). Cf. Northwest Airlines, Inc. v. County of Kent, 510 U. S.
355, 369 (1994) (A user fee is valid only to the extent it "does not discrimi-
nate against interstate commerce").
7 We would note that respondents, like the dissent, post, at 112, ignore
the fact that shippers of waste from other States in all likelihood pay
income taxes in other States, a portion of which might well be used to
pay for waste reduction activities in those States.
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 105
Opinion of the Court
The prototypical example of substantially equivalent tax-
able events is the sale and use of articles of trade. See Hen-
neford, supra. In fact, use taxes on products purchased out
of state are the only taxes we have upheld in recent memory
under the compensatory tax doctrine. See ibid. Typifying
our recent reluctance to recognize new categories of compen-
satory taxes is Armco, where we held that manufacturing
and wholesaling are not substantially equivalent events.
467 U. S., at 643. In our view, earning income and disposing
of waste at Oregon landfills are even less equivalent than
manufacturing and wholesaling. Indeed, the very fact that
in-state shippers of out-of-state waste, such as Oregon
Waste, are charged the out-of-state surcharge even though
they pay Oregon income taxes refutes respondents' argu-
ment that the respective taxable events are substantially
equivalent. See ibid. We conclude that, far from being
substantially equivalent, taxes on earning income and utiliz-
ing Oregon landfills are "entirely different kind[s] of tax[es]."
Washington v. United States, 460 U. S. 536, 546, n. 11 (1983).
We are no more inclined here than we were in Scheiner to
"plunge . . . into the morass of weighing comparative tax
burdens" by comparing taxes on dissimilar events. 483
U. S., at 289 (internal quotation marks omitted).8
B
Respondents' final argument is that Oregon has an interest
in spreading the costs of the in-state disposal of Oregon
waste to all Oregonians. That is, because all citizens of Ore-
8 Furthermore, permitting discriminatory taxes on interstate commerce
to compensate for charges purportedly included in general forms of intra-
state taxation "would allow a state to tax interstate commerce more heav-
ily than in-state commerce anytime the entities involved in interstate com-
merce happened to use facilities supported by general state tax funds."
Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d, at
1284. We decline respondents' invitation to open such an expansive loop-
hole in our carefully confined compensatory tax jurisprudence.
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
106 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Opinion of the Court
gon benefit from the proper in-state disposal of waste from
Oregon, respondents claim it is only proper for Oregon to
require them to bear more of the costs of disposing of such
waste in the State through a higher general tax burden. At
the same time, however, Oregon citizens should not be re-
quired to bear the costs of disposing of out-of-state waste,
respondents claim. The necessary result of that limited cost
shifting is to require shippers of out-of-state waste to bear
the full costs of in-state disposal, but to permit shippers of
Oregon waste to bear less than the full cost.
We fail to perceive any distinction between respondents'
contention and a claim that the State has an interest in re-
ducing the costs of handling in-state waste. Our cases con-
demn as illegitimate, however, any governmental interest
that is not "unrelated to economic protectionism," Wyoming,
502 U. S., at 454, and regulating interstate commerce in such
a way as to give those who handle domestic articles of com-
merce a cost advantage over their competitors handling simi-
lar items produced elsewhere constitutes such protectionism.
See New Energy, 486 U. S., at 275.9 To give controlling ef-
fect to respondents' characterization of Oregon's tax scheme
as seemingly benign cost spreading would require us to over-
look the fact that the scheme necessarily incorporates a pro-
tectionist objective as well. Cf. Bacchus Imports, Ltd. v.
Dias, 468 U. S. 263, 273 (1984) (rejecting Hawaii's attempt to
justify a discriminatory tax exemption for local liquor pro-
9 We recognize that "[t]he Commerce Clause does not prohibit all state
action designed to give its residents an advantage in the marketplace, but
only action of that description in connection with the State's regulation
of interstate commerce." New Energy Co. of Ind. v. Limbach, 486 U. S.
269, 278 (1988). Cf. Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869, 877,
n. 6 (1985). Here, as in New Energy, we confront a patently discrimina-
tory law that is plainly connected to the regulation of interstate commerce.
We therefore have no occasion to decide whether Oregon could validly
accomplish its limited cost spreading through the "market participant"
doctrine, Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 806Â810 (1976),
or other means unrelated to any regulation of interstate commerce.
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 107
Opinion of the Court
ducers as conferring a benefit on them, as opposed to burden-
ing out-of-state liquor producers).
Respondents counter that if Oregon is engaged in any form
of protectionism, it is "resource protectionism," not economic
protectionism. It is true that by discouraging the flow of
out-of-state waste into Oregon landfills, the higher surcharge
on waste from other States conserves more space in those
landfills for waste generated in Oregon. Recharacterizing
the surcharge as resource protectionism hardly advances
respondents' cause, however. Even assuming that landfill
space is a "natural resource," "a State may not accord its
own inhabitants a preferred right of access over consumers
in other States to natural resources located within its bor-
ders." Philadelphia, 437 U. S., at 627. As we held more
than a century ago, "if the State, under the guise of exerting
its police powers, should [impose a burden] . . . applicable
solely to articles [of commerce] . . . produced or manufactured
in other States, the courts would find no difficulty in holding
such legislation to be in conflict with the Constitution of
the United States." Guy v. Baltimore, 100 U. S. 434, 443
(1880).
Our decision in Sporhase v. Nebraska ex rel. Douglas, 458
U. S. 941 (1982), is not to the contrary. There we held that
a State may grant a "limited preference" for its citizens in
the utilization of ground water. Id., at 956. That holding
was premised on several different factors tied to the simple
fact of life that "water, unlike other natural resources, is es-
sential for human survival." Id., at 952. Sporhase there-
fore provides no support for respondents' position that
States may erect a financial barrier to the flow of waste from
other States into Oregon landfills. See Fort Gratiot, 504
U. S., at 364Â365, and n. 6. However serious the shortage
in landfill space may be, post, at 108, "[n]o State may attempt
to isolate itself from a problem common to the several States
by raising barriers to the free flow of interstate trade."
Chemical Waste, 504 U. S., at 339Â340, and 346, n. 9.
511us1$33N 11-04-97 19:32:37 PAGES OPINPGT
108 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Rehnquist, C. J., dissenting
IV
We recognize that the States have broad discretion to con-
figure their systems of taxation as they deem appropriate.
See, e. g., Commonwealth Edison Co. v. Montana, 453 U. S.
609, 622Â623 (1981); Boston Stock Exchange v. State Tax
Comm'n, 429 U. S. 318, 336Â337 (1977). All we intimate
here is that their discretion in this regard, as in all others,
is bounded by any relevant limitations of the Federal Consti-
tution, in these cases the negative Commerce Clause. Be-
cause respondents have offered no legitimate reason to sub-
ject waste generated in other States to a discriminatory
surcharge approximately three times as high as that imposed
on waste generated in Oregon, the surcharge is facially in-
valid under the negative Commerce Clause. Accordingly,
the judgment of the Oregon Supreme Court is reversed, and
the cases are remanded for further proceedings not incon-
sistent with this opinion.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Black-
mun joins, dissenting.
Landfill space evaporates as solid waste accumulates.
State and local governments expend financial and political
capital to develop trash control systems that are efficient,
lawful, and protective of the environment. The State of
Oregon responsibly attempted to address its solid waste
disposal problem through enactment of a comprehensive reg-
ulatory scheme for the management, disposal, reduction,
and recycling of solid waste. For this Oregon should be
applauded. The regulatory scheme included a fee charged
on out-of-state solid waste. The Oregon Legislature di-
rected the Environmental Quality Commission to determine
the appropriate surcharge "based on the costs . . . of dispos-
ing of solid waste generated out-of-state." Ore. Rev. Stat.
§ 459.298 (1991). The Commission arrived at a surcharge
of $2.25 per ton, compared to the $0.85 per ton charged on
511us1$33H 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 109
Rehnquist, C. J., dissenting
in-state solid waste. Ore. Admin. Rule 340Â97Â110(3) (Sept.
1993).1 The surcharge works out to an increase of about
$0.14 per week for the typical out-of-state solid waste pro-
ducer.2 Brief for Respondents 26Â27, n. 16. This seems a
small price to pay for the right to deposit your "garbage,
rubbish, refuse . . . ; sewage sludge, septic tank and cesspool
pumpings or other sludge; . . . manure, . . . dead animals,
[and] infectious waste" on your neighbors. Ore. Rev. Stat.
§ 459.005(27) (1991).
Nearly 20 years ago, we held that a State cannot ban all
out-of-state waste disposal in protecting themselves from
hazardous or noxious materials brought across the State's
borders. Philadelphia v. New Jersey, 437 U. S. 617 (1978).
Two Terms ago in Chemical Waste Management, Inc. v.
Hunt, 504 U. S. 334 (1992), in striking down the State of Ala-
bama's $72 per ton fee on the disposal of out-of-state hazard-
ous waste, the Court left open the possibility that such a fee
could be valid if based on the costs of disposing of waste
from other States. Id., at 346, n. 9. Once again, however,
as in Philadelphia and Chemical Waste Management, the
Court further cranks the dormant Commerce Clause ratchet
against the States by striking down such cost-based fees, and
by so doing ties the hands of the States in addressing the
vexing national problem of solid waste disposal. I dissent.
1 The surcharge is composed of the following identified costs: $0.58-
statewide activities for reducing environmental risks and improving solid
waste management; $0.66-reimbursements to the State for tax credits
and other public subsidies; $0.05-solid waste reduction activities related
to the review and certification of waste reduction and recycling plans;
$0.72-increased environmental liability; $0.20-lost disposal capacity;
$0.03-publicly supported infrastructure; and $0.01-nuisance impacts
from transportation. Pet. for Cert. in No. 93Â108, p. 4.
2 The $2.25 per ton fee imposed on out-of-state waste exceeds the $0.85
per ton fee imposed on in-state waste by $1.40 per ton. One ton equals
2,000 pounds. Assuming that the hypothetical nonresident generates 200
pounds of garbage per month (1/10 of a ton), the nonresident's garbage bill
would increase by $0.14 per month.
511us1$33H 11-04-97 19:32:37 PAGES OPINPGT
110 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Rehnquist, C. J., dissenting
Americans generated nearly 196 million tons of municipal
solid waste in 1990, an increase from 128 million tons in 1975.
See U. S. Environmental Protection Agency, Characteriza-
tion of Municipal Solid Waste in the United States: 1992 Up-
date, p. ESÂ3. Under current projections, Americans will
produce 222 million tons of garbage in the year 2000. Ibid.
Generating solid waste has never been a problem. Finding
environmentally safe disposal sites has. By 1991, it was
estimated that 45 percent of all solid waste landfills in the
Nation had reached capacity. 56 Fed. Reg. 50980 (1991).
Nevertheless, the Court stubbornly refuses to acknowledge
that a clean and healthy environment, unthreatened by the
improper disposal of solid waste, is the commodity really at
issue in cases such as these, see, e. g., Chemical Waste Man-
agement, supra, at 350 (Rehnquist, C. J., dissenting), and
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of
Natural Resources, 504 U. S. 353, 368 (1992) (Rehnquist,
C. J., dissenting).
Notwithstanding the identified shortage of landfill space in
the Nation, the Court notes that it has "little difficulty,"
ante, at 104, concluding that the Oregon surcharge does not
operate as a compensatory tax, designed to offset the loss of
available landfill space in the State caused by the influx of
out-of-state waste. The Court reaches this nonchalant con-
clusion because the State has failed "to identify a specific
charge on intrastate commerce equal to or exceeding the sur-
charge." Ibid. (emphasis added). The Court's myopic focus
on "differential fees" ignores the fact that in-state producers
of solid waste support the Oregon regulatory program
through state income taxes and by paying, indirectly, the nu-
merous fees imposed on landfill operators and the dumping
fee on in-state waste. Ore. Rev. Stat. § 459.005 et seq. (1991).
We confirmed in Sporhase v. Nebraska ex rel. Douglas,
458 U. S. 941 (1982), that a State may enact a comprehensive
regulatory system to address an environmental problem or
511us1$33H 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 111
Rehnquist, C. J., dissenting
a threat to natural resources within the confines of the Com-
merce Clause. In the context of threatened ground water
depletion, we stated that "[o]bviously, a State that imposes
severe withdrawal and use restrictions on its own citizens is
not discriminating against interstate commerce when it
seeks to prevent the uncontrolled transfer of water out of
the State." Id., at 955Â956. The same point could be made
about a "clean and safe environment" in these cases: Where
a State imposes restrictions on the ability of its own citizens
to dispose of solid waste in an effort to promote a "clean and
safe environment," it is not discriminating against interstate
commerce by preventing the uncontrolled transfer of out-of-
state solid waste into the State.
The availability of safe landfill disposal sites in Oregon did
not occur by chance. Through its regulatory scheme, the
State of Oregon inspects landfill sites, monitors waste
streams, promotes recycling, and imposes an $0.85 per ton
disposal fee on in-state waste, Ore. Rev. Stat. § 459.005 et seq.
(1991), all in an effort to curb the threat that its residents
will harm the environment and create health and safety
problems through excessive and unmonitored solid waste dis-
posal. Depletion of a clean and safe environment will follow
if Oregon must accept out-of-state waste at its landfills with-
out a sharing of the disposal costs. The Commerce Clause
does not require a State to abide this outcome where the
"natural resource has some indicia of a good publicly
produced and owned in which a State may favor its own
citizens in times of shortage." Sporhase, supra, at 957. A
shortage of available landfill space is upon us, 56 Fed. Reg.
50980 (1991), and with it comes the accompanying health and
safety hazards flowing from the improper disposal of solid
wastes. We have long acknowledged a distinction between
economic protectionism and health and safety regulation
promulgated by Oregon. See H. P. Hood & Sons, Inc. v.
Du Mond, 336 U. S. 525, 533 (1949).
511us1$33H 11-04-97 19:32:37 PAGES OPINPGT
112 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Rehnquist, C. J., dissenting
Far from neutralizing the economic situation for Oregon
producers and out-of-state producers, the Court's analysis
turns the Commerce Clause on its head. Oregon's neighbors
will operate under a competitive advantage against their
Oregon counterparts as they can now produce solid waste
with reckless abandon and avoid paying concomitant state
taxes to develop new landfills and clean up retired landfill
sites. While I understand that solid waste is an article of
commerce, Philadelphia, 437 U. S., at 622Â623, it is not a
commodity sold in the marketplace; rather it is disposed
of at a cost to the State. Petitioners do not buy garbage to
put in their landfills; solid waste producers pay petitioners
to take their waste. Oregon solid waste producers do not
compete with out-of-state businesses in the sale of solid
waste. Thus, the fees do not alter the price of a product
that is competing with other products for common purchas-
ers. If anything, striking down the fees works to the dis-
advantage of Oregon businesses. They alone will have to
pay the "nondisposal" fees associated with solid waste: land-
fill siting, landfill cleanup, insurance to cover environmental
accidents, and transportation improvement costs associated
with out-of-state waste being shipped into the State. While
we once recognized that " `the collection and disposal of solid
wastes should continue to be primarily the function of State,
regional, and local agencies,' " id., at 621, n. 4, quoting 42
U. S. C. § 6901(a)(4) (1976 ed.), the Court today leaves States
with only two options: become a dumper and ship as much
waste as possible to a less populated State, or become a dum-
pee, and stoically accept waste from more densely popu-
lated States.
The Court asserts that the State has not offered "any
safety or health reason[s]" for discouraging the flow of solid
waste into Oregon. Ante, at 101. I disagree. The avail-
ability of environmentally sound landfill space and the proper
disposal of solid waste strike me as justifiable "safety or
health" rationales for the fee. As far back as the turn of the
511us1$33H 11-04-97 19:32:37 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 113
Rehnquist, C. J., dissenting
century, the Court recognized that control over the collection
and disposal of solid waste was a legitimate, nonarbitrary
exercise of police powers to protect health and safety. See,
e. g., California Reduction Co. v. Sanitary Reduction Works,
199 U. S. 306 (1905) (holding that exclusive privilege to one
company to dispose of the garbage in the city and county of
San Francisco was not void as taking the property of house-
holders for public use without compensation); and Gardner
v. Michigan, 199 U. S. 325 (1905) (holding that property
rights of individuals must be subordinated to the general
good and if the owner of garbage suffers any loss by its de-
struction he is compensated therefor in the common benefit
secured by the regulation requiring that all garbage be
destroyed).
In exercising its legitimate police powers in regulating
solid waste disposal, Oregon is not "needlessly obstruct[ing]
interstate trade or attempt[ing] to place itself in a position
of economic isolation." Maine v. Taylor, 477 U. S. 131, 151
(1986) (internal quotation marks omitted) (upholding Maine's
ban on the importation of live baitfish on the ground that
it serves the legitimate governmental interest in protecting
Maine's indigenous fish population from parasites prevalent
in out-of-state baitfish). Quite to the contrary, Oregon ac-
cepts out-of-state waste as part of its comprehensive solid
waste regulatory program and it "retains broad regulatory
authority to protect the health and safety of its citizens and
the integrity of its natural resources." Ibid. Moreover,
Congress also has recognized taxes as an effective method
of discouraging consumption of natural resources in other
contexts. Cf. 26 U. S. C. §§ 4681, 4682 (1988 ed., Supp. IV)
(tax on ozone-depleting chemicals); 26 U. S. C. § 4064 (1988
ed. and Supp. IV) (gas guzzler excise tax). Nothing should
change the analysis when the natural resource-landfill
space-was created or regulated by the State in the first
place.
511us1$33H 11-04-97 19:32:37 PAGES OPINPGT
114 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Rehnquist, C. J., dissenting
In its sweeping ruling, the Court makes no distinction be-
tween publicly and privately owned landfills. It rejects the
argument that our "user fee" cases apply in this context
since the landfills owned by the petitioners are private and
our user fee analysis applies only to " `charge[s] imposed by
the State for the use of a state-owned or state-provided
transportation or other facilities and services.' " Ante, at
103, n. 6, quoting Commonwealth Edison Co. v. Montana,
453 U. S. 609, 621 (1981). Rather than stopping there, how-
ever, the majority goes on to note that even if the Oregon
surcharge could be viewed as a user fee, "it could not be
sustained as such, given that it discriminates against inter-
state commerce." Ante, at 104, n. 6, citing Evansville-
Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc.,
405 U. S. 707, 717 (1972). There is no need to make this
dubious assertion. We specifically left unanswered the
question whether a state or local government could regulate
disposal of out-of-state solid waste at landfills owned by the
government in Philadelphia, supra, at 627, n. 6.
We will undoubtedly be faced with this question directly
in the future as roughly 80 percent of landfills receiving mu-
nicipal solid waste in the United States are state or locally
owned. U. S. Environmental Protection Agency, Resource
Conservation and Recovery Act, Subtitle D Study: Phase 1
Report, p. 4Â7 (Oct. 1986) (Table 4Â2). We noted in South-
Central Timber Development, Inc. v. Wunnicke, 467 U. S.
82, 93 (1984): "[I]f a State is acting as a market participant,
rather than as a market regulator, the dormant Commerce
Clause places no limitation on its activities." See also Wyo-
ming v. Oklahoma, 502 U. S. 437, 459 (1992). Similarly, if
the State owned and operated a park or recreational facility,
it would be allowed to charge differential fees for in-state
and out-of-state users of the resource. See, e. g., Baldwin v.
Fish and Game Comm'n of Mont., 436 U. S. 371 (1978) (up-
holding Montana's higher nonresident elk hunting license
fees to compensate the State for conservation expenditures
511us1$33H 11-04-97 19:32:38 PAGES OPINPGT
Cite as: 511 U. S. 93 (1994) 115
Rehnquist, C. J., dissenting
from taxes which only residents pay). More recently we up-
held such differential fees under a reasonableness standard
in Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355
(1994), despite the fact that the fees were not precisely tied
to the costs of the services provided at the publicly owned
airport. We relied on our Commerce Clause analysis from
Evansville, supra. We stated in Evansville:
"At least so long as the toll is based on some fair approxi-
mation of use or privilege for use, . . . and is neither
discriminatory against interstate commerce nor exces-
sive in comparison with the governmental benefit con-
ferred, it will pass constitutional muster, even though
some other formula might reflect more exactly the rela-
tive use of the state facilities by individual users." Id.,
at 716Â717.
I think that the $2.25 per ton fee that Oregon imposes on
out-of-state waste works out to a similar "fair approxima-
tion" of the privilege to use its landfills. Even the Court
concedes that our precedents do not demand anything be-
yond "substantia[l] equivalen[cy]" between the fees charged
on in-state and out-of-state waste. Ante, at 103 (internal
quotation marks omitted). The $0.14 per week fee imposed
on out-of-state waste producers qualifies as "substantially
equivalent" under the reasonableness standard of Northwest
Airlines and Evansville.
The Court begrudgingly concedes that interstate com-
merce may be made to "pay its way," ante, at 102 (internal
quotation marks omitted), yet finds Oregon's nominal sur-
charge to exact more than a " `just share' " from interstate
commerce, ibid. It escapes me how an additional $0.14 per
week cost for the average solid waste producer constitutes
anything but the type of "incidental effects on interstate
commerce" endorsed by the majority. Ante, at 99. Even-
handed regulations imposing such incidental effects on inter-
state commerce must be upheld unless "the burden imposed
511us1$33H 11-04-97 19:32:38 PAGES OPINPGT
116 OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF
ENVIRONMENTAL QUALITY OF ORE.
Rehnquist, C. J., dissenting
on such commerce is clearly excessive in relation to the puta-
tive local benefits." Pike v. Bruce Church, Inc., 397 U. S.
137, 142 (1970). If the majority finds $0.14 per week beyond
the pale, one is left to wonder what the Court possibly could
have contemplated when it stated:
" `[I]n the absence of conflicting legislation by Congress,
there is a residuum of power in the state to make laws
governing matters of local concern which nevertheless
in some measure affect interstate commerce or even, to
some extent, regulate it.' " Hunt v. Washington State
Apple Advertising Comm'n, 432 U. S. 333, 350 (1977),
quoting Southern Pacific Co. v. Arizona ex rel. Sulli-
van, 325 U. S. 761, 767 (1945).
Surely $0.14 per week falls within even the most crabbed
definition of "affect" or "regulate." Today the majority has
rendered this "residuum of power" a nullity.
The State of Oregon is not prohibiting the export of solid
waste from neighboring States; it is only asking that those
neighbors pay their fair share for the use of Oregon landfill
sites. I see nothing in the Commerce Clause that compels
less densely populated States to serve as the low-cost dump-
ing grounds for their neighbors, suffering the attendant risks
that solid waste landfills present. The Court, deciding oth-
erwise, further limits the dwindling options available to
States as they contend with the environmental, health,
safety, and political challenges posed by the problem of solid
waste disposal in modern society.
For the foregoing reasons, I respectfully dissent.
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
OCTOBER TERM, 1993 117
Syllabus
TICOR TITLE INSURANCE CO. et al. v.
BROWN et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 92Â1988. Argued March 1, 1994-Decided April 4, 1994
Respondents were members of a class whose money damages claims were
settled in a suit filed against petitioner title insurance companies. The
class was certified under Federal Rules of Civil Procedure 23(b)(1)(A)
and (b)(2), which do not permit class members to opt out of a class.
When respondent Brown subsequently filed the present action on behalf
of Arizona and Wisconsin title insurance consumers, the District Court
granted petitioners summary judgment on the ground that respondents
were bound by the earlier judgment. The Ninth Circuit reversed, hold-
ing that it would violate due process to accord res judicata effect to a
judgment involving money damages claims where a plaintiff to the pre-
vious suit had not been afforded a right to opt out.
Held: Because deciding this case would require the Court to resolve a
constitutional question that may be entirely hypothetical, the writ is
dismissed as improvidently granted. The Court would not have to
reach the question whether absent class members have a constitutional
right to opt out of actions involving money damages if it turned out that
classes in such actions can be certified only under Rule 23(b)(3), which
permits opt out. However, the determination that respondents' class
fit within Rules 23(b)(1)(A) and (b)(2) is conclusive upon these parties,
and the alternative of using the Federal Rules instead of the Constitu-
tion as a means of imposing an opt-out requirement on this settlement
is no longer available. Further, it is not clear that our resolution of the
constitutional question will make any difference even to these litigants.
Certiorari dismissed. Reported below: 982 F. 2d 386.
Richard G. Taranto argued the cause for petitioners.
With him on the briefs were Joel I. Klein, Frank D. Tatum,
Jr., Paul J. Laveroni, John C. Christie, Jr., Patrick J. Roach,
John F. Graybeal, Robert H. Tiller, and David M. Foster.
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
118 TICOR TITLE INS. CO. v. BROWN
Per Curiam
Gerald D. W. North argued the cause for respondents.
With him on the brief were Ted M. Warshafsky, Aram A.
Hartunian, and Ronald L. Futterman.*
Per Curiam.
For the reasons discussed below, we have concluded that
deciding this case would require us to resolve a constitu-
tional question that may be entirely hypothetical, and we
accordingly dismiss the writ as improvidently granted.
I
In 1985, the Federal Trade Commission initiated enforce-
ment proceedings against petitioners, six title insurance
companies, alleging that they conspired to fix prices in 13
States including Arizona and Wisconsin. Shortly after that,
private parties in the affected States filed 12 different "tag-
along" antitrust class actions, seeking treble damages and
injunctive relief. Those private suits were consolidated for
pretrial purposes pursuant to 28 U. S. C. § 1407 (the federal
multidistrict litigation statute), and were transferred to the
*Briefs of amici curiae urging reversal were filed for the American
Insurance Association et al. by Herbert M. Wachtell, Douglas S. Liebhaf-
sky, Stuart Philip Ross, Sean M. Hanifin, Merril J. Hirsh, Craig A. Ber-
rington, Paul J. Bschorr, Richard W. Reinthaler, and Rebecca L. Ford;
for the Lawyer's Committee for Civil Rights Under Law by Michael A.
Cooper, Herbert J. Hansell, Thomas J. Henderson, Richard T. Seymour,
Sharon R. Vinick, Edward Labaton, and Bernard Persky; and for the
National Football League by Frank Rothman, William L. Daly, Herbert
Dym, and Gregg H. Levy.
Briefs of amici curiae urging affirmance were filed for the Association
of Trial Lawyers of America by Jeffrey Robert White, James E. Rooks,
Jr., and Barry J. Nace; for Owens-Illinois, Inc., by James Dabney Miller
and David L. Gray; for Public Citizen by Alan B. Morrison and Brian
Wolfman; for Trial Lawyers for Public Justice by Roberta B. Walburn,
Arthur H. Bryant, and Leslie A. Brueckner; for James Menendez et al. by
Brent M. Rosenthal; and for Leslie O'Neal et al. by Don Howarth and
Suzelle M. Smith.
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
Cite as: 511 U. S. 117 (1994) 119
Per Curiam
District Court for the Eastern District of Pennsylvania as
MDL No. 633.
In January 1986, spurred on by an intervening decision of
this Court that substantially weakened the claims against
petitioners, see Southern Motor Carriers Rate Conference,
Inc. v. United States, 471 U. S. 48 (1985), petitioners and the
class representatives in MDL No. 633 reached a settlement.
The settlement extinguished all money damages claims
against petitioners by those " `purchasers and insureds, who
purchased or received title insurance . . . from any title insur-
ance underwriter . . . with respect to real estate located in
any of the thirteen Affected States during the period from
January 1, 1981 to December 31, 1985,' " a class that included
the respondents. In re Real Estate Title and Settlement
Services Antitrust Litigation, 1986Â1 Trade Cases ¶ 67,149,
pp. 62,921, 62,924 (ED Pa. 1986) (quoting settlement agree-
ment). To the plaintiffs, the settlement agreement awarded
injunctive relief, an increased amount of coverage on any
title insurance policy that class members bought during the
class period, an increased amount of coverage on specified
title insurance policies that class members might purchase
from petitioners during a future 1-year period, and payment
of attorney's fees and costs of the lawsuit. The District
Court provisionally certified the settlement class (as stipu-
lated by the class representatives and petitioners) under
Federal Rules of Civil Procedure 23(b)(1) and (b)(2), and pro-
visionally accepted the settlement.
At the ensuing final settlement hearing, the State of Wis-
consin objected to the proposed settlement both as a class
member and as parens patriae for its resident class mem-
bers, claiming that the action could not be certified under
Rule 23(b)(2) because the relief sought in the complaints was
primarily monetary. Wisconsin also claimed (and was joined
in this by the State of Arizona, both as a class member and
as parens patriae) that due process required that the pro-
posed class members have an opportunity to opt out of the
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
120 TICOR TITLE INS. CO. v. BROWN
Per Curiam
class. The District Court ultimately rejected these objec-
tions, certified the classes under Rules 23(b)(1)(A) and
(b)(2),* and accepted the settlement. The Third Circuit af-
firmed without opinion, In re Real Estate Title and Settle-
ment Services Antitrust Litigation, 815 F. 2d 695 (1987)
(judgment order), and we denied certiorari, 485 U. S. 909
(1988).
In 1990, respondent Brown filed the present action in Dis-
trict Court in Arizona on behalf of Arizona and Wisconsin
title insurance consumers, alleging that petitioners had con-
spired to fix rates for title-search services in those States in
violation of the federal antitrust laws. The District Court
granted petitioners summary judgment on the ground,
among others, that respondents, as parties to the MDL No.
633 suit, were bound by the judgment entered pursuant to
the settlement. The Ninth Circuit reversed, accepting re-
spondents' contention that it would violate due process to
accord res judicata effect to a judgment in a class action that
involved money damages claims (or perhaps that involved
primarily money damages claims) against a plaintiff in the
previous suit who had not been afforded a right to opt out on
those claims. 982 F. 2d 386, 392 (1992). Before the Ninth
Circuit, respondents did not (and indeed could not) challenge
whether the class in the MDL No. 633 litigation was properly
certified under Rules 23(b)(1)(A) and (b)(2). And in this
Court, petitioners present only a single question-viz.,
"[w]hether a federal court may refuse to enforce a prior fed-
eral class action judgment, properly certified under Rule 23,
*Certification under Rule 23(b)(1)(A) requires that the prosecution of
separate actions would create a risk of "inconsistent or varying adjudica-
tions with respect to individual members of the class which would estab-
lish incompatible standards of conduct for the party opposing the class."
Certification under Rule 23(b)(2) requires that "the party opposing the
class has acted or refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole."
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
Cite as: 511 U. S. 117 (1994) 121
Per Curiam
on grounds that absent class members have a constitutional
due process right to opt out of any class action which asserts
monetary claims on their behalf." Pet. for Cert. i.
II
That certified question is of no general consequence if,
whether or not absent class members have a constitutional
right to opt out of such actions, they have a right to do so
under the Federal Rules of Civil Procedure. Such a right
would exist if, in actions seeking monetary damages, classes
can be certified only under Rule 23(b)(3), which permits opt-
out, and not under Rules 23(b)(1) and (b)(2), which do not.
See Rules 23(c)(2) and (c)(3). That is at least a substantial
possibility-and we would normally resolve that preliminary
nonconstitutional question before proceeding to the consti-
tutional claim. See New York City Transit Authority v.
Beazer, 440 U. S. 568, 582Â583 (1979). The law of res judi-
cata, however, prevents that question from being litigated
here. It was conclusively determined in the MDL No. 633
litigation that respondents' class fit within Rules 23(b)(1)(A)
and (b)(2); even though that determination may have been
wrong, it is conclusive upon these parties, and the alternative
of using the Federal Rules instead of the Constitution as the
means of imposing an opt-out requirement for this settle-
ment is no longer available.
The most obvious consequence of this unavailability is,
as we have suggested, that our resolution of the posited con-
stitutional question may be quite unnecessary in law, and
of virtually no practical consequence in fact, except with
respect to these particular litigants. Another consequence,
less apparent, is that resolving the constitutional question on
the assumption of proper certification under the Rules may
lead us to the wrong result. If the Federal Rules, which
generally are not affirmatively enacted into law by Congress,
see 28 U. S. C. §§ 2072(a), (b), 2074(a), are not entitled to that
great deference as to constitutionality which we accord fed-
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
122 TICOR TITLE INS. CO. v. BROWN
O'Connor, J., dissenting
eral statutes, see, e. g., Rostker v. Goldberg, 453 U. S. 57, 64
(1981); Walters v. National Assn. of Radiation Survivors,
473 U. S. 305, 319Â320 (1985), they at least come with the
imprimatur of the rulemaking authority of this Court. In
deciding the present case, we must assume either that the
lack of opt-out opportunity in these circumstances was de-
creed by the Rules or that it was not (though the parties
are bound by an erroneous holding that it was). If we make
the former assumption we may approve, in the mistaken
deference to prior Supreme Court action and congressional
acquiescence, action that neither we nor Congress would
independently think constitutional. If we make the latter
assumption, we may announce a constitutional rule that is
good for no other federal class action. Neither option is
attractive.
The one reason to proceed is to achieve justice in this par-
ticular case. Even if the constitutional question presented
is hypothetical as to everyone else, it would seem to be of
great practical importance to these litigants. But that is
ordinarily not sufficient reason for our granting certiorari-
even when unnecessary constitutional pronouncements are
not in the picture. Moreover, as matters have developed it
is not clear that our resolution of the constitutional question
will make any difference even to these litigants. On the day
we granted certiorari we were informed that the parties had
reached a settlement designed to moot the petition, which
now awaits the approval of the District Court.
In these circumstances, we think it best to dismiss the writ
as improvidently granted.
Justice O'Connor, with whom The Chief Justice and
Justice Kennedy join, dissenting.
We granted certiorari to consider one specific question:
"Whether a federal court may refuse to enforce a prior fed-
eral class action judgment, properly certified under Rule 23,
on grounds that absent class members have a constitutional
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
Cite as: 511 U. S. 117 (1994) 123
O'Connor, J., dissenting
due process right to opt out of any class action which asserts
monetary claims on their behalf." Pet. for Cert. i. The
Court decides not to answer this question based on its specu-
lation about a nonconstitutional ground for decision that is
neither presented on this record nor available to these par-
ties. From that decision I respectfully dissent.
Respondents are members of a class that reached a final
settlement with petitioners in an antitrust action styled
MDL No. 633. In re Real Estate Title and Settlement
Services Antitrust Litigation, 1986Â1 Trade Cases ¶ 67,149,
p. 62,921 (ED Pa. 1986), aff'd, 815 F. 2d 695 (CA3 1987), cert.
denied, 485 U. S. 909 (1988). Respondents subsequently
brought this action against petitioners, asserting some of the
same claims. The District Court held that respondents had
been adequately represented in the MDL No. 633 action, and
granted summary judgment for petitioners because, given
the identity of parties and claims, the MDL No. 633 settle-
ment was res judicata. App. to Pet. for Cert. 20aÂ28a. The
Court of Appeals for the Ninth Circuit reversed. 982 F. 2d
386 (1992). The court agreed that respondents had been ad-
equately represented in the MDL No. 633 action, id., at 390Â
391, but held that respondents could nevertheless relitigate
the same claims against petitioners: "Because [respondents]
had no opportunity to opt out of the MDL No. 633 litigation,
we hold there would be a violation of minimal due process if
[respondents'] damage claims were held barred by res judi-
cata." Id., at 392.
The Court concludes that the correctness of the Ninth Cir-
cuit's constitutional interpretation "is of no general conse-
quence if, . . . in actions seeking monetary damages, classes
can be certified only under Rule 23(b)(3), which permits opt-
out, and not under Rules 23(b)(1) and (b)(2), which do not."
Ante, at 121. In other words, the Court declines to answer
the constitutional question because the MDL No. 633 action
might not have been properly certified-an issue that was
litigated to a final determination in petitioners' favor more
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
124 TICOR TITLE INS. CO. v. BROWN
O'Connor, J., dissenting
than five years ago, and on which we denied certiorari. The
nonconstitutional ground for decision about which the Court
speculates is therefore unavailable to respondents. The con-
stitutional ground on which the Court of Appeals relied, the
one we granted certiorari to review and the parties have
briefed and argued, was necessary to the decision in this
case. Our prudential rule of avoiding constitutional ques-
tions has no application in these circumstances, and the
Court errs in relying on it.
The Court's assertion that "our resolution of the posited
constitutional question may be . . . of virtually no practical
consequence in fact," ibid., is unsound. The lower courts
have consistently held that the presence of monetary dam-
ages claims does not preclude class certification under Rules
23(b)(1)(A) and (b)(2). See 7A C. Wright, A. Miller, &
M. Kane, Federal Practice and Procedure, Civil 2d § 1775,
pp. 463Â470 (1986 and Supp. 1992). Whether or not those
decisions are correct (a question we need not, and indeed
should not, decide today), they at least indicate that there
are a substantial number of class members in exactly the
same position as respondents. Under the Ninth Circuit's
rationale in this case, every one of them has the right to
go into federal court and relitigate their claims against the
defendants in the original action. The individuals, corpora-
tions, and governments that have successfully defended
against class actions or reached appropriate settlements, but
are now subject to relitigation of the same claims with
individual class members, will rightly dispute the Court's
characterization of the constitutional rule in this case as
inconsequential.
The Court is likewise incorrect in suggesting that a deci-
sion in this case "may be quite unnecessary in law." Ante,
at 121. Unless and until a contrary rule is adopted, courts
will continue to certify classes under Rules 23(b)(1) and (b)(2)
notwithstanding the presence of damages claims; the consti-
tutional opt-out right announced by the court below will be
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
Cite as: 511 U. S. 117 (1994) 125
O'Connor, J., dissenting
implicated in every such action, at least in the Ninth Circuit.
Moreover, because the decision below is based on the Due
Process Clause, presumably it applies to the States; although
we held in Phillips Petroleum Co. v. Shutts, 472 U. S. 797
(1985), that there is a constitutional right to opt out of class
actions brought in state court, that holding was expressly
"limited to those class actions which seek to bind known
plaintiffs concerning claims wholly or predominately for
money judgments." Id., at 811, n. 3. The Ninth Circuit's
rule, by contrast, applies whenever "substantial damage
claims" are asserted. See 982 F. 2d, at 392. The resolution
of a constitutional issue with such broad-ranging conse-
quences is both necessary and appropriate.
Finally, I do not agree with the Court's suggestion that
the posture of the case could "lead us to the wrong result"
with respect to the question whether the Due Process Clause
requires an opt-out right in federal class actions involving
claims for money damages. See ante, at 121Â122. As the
case comes to us, we must assume that the MDL No. 633
class was properly certified under Rule 23, notwithstanding
the presence of claims for monetary relief. But this assump-
tion, coupled with whatever presumption of constitutionality
to which the Rules are entitled, will not lead us to "approve
. . . action that neither we nor Congress would independently
think constitutional." Ante, at 122. Either an opt-out
right is constitutionally required, or it is not. We can decide
this issue while reserving the question of how the Rules
should be construed. While it might be convenient, and it
would certainly accord with our usual practice, to decide the
nonconstitutional question first, that option is not available
to us in this case. The only question, then, is whether we
should dismiss the writ as improvidently granted. In my
view, the importance of the constitutional question, as well
as the significant expenditures of resources by the litigants,
amici, and this Court, outweighs the prudential concerns on
which the Court relies.
511us1$34z 06-11-96 17:19:05 PAGES OPINPGT
126 TICOR TITLE INS. CO. v. BROWN
O'Connor, J., dissenting
When a constitutional issue is fairly joined, necessary to
the decision, and important enough to warrant review, this
Court should not avoid resolving it-particularly on the
basis of an entirely speculative alternative ground for deci-
sion that is neither presented by the record nor available
to the parties before the Court. The decision below rests
exclusively on a constitutional right to opt out of class ac-
tions asserting claims for monetary relief. We granted cer-
tiorari to consider whether such a right exists. The issue
has been thoroughly briefed and argued by the parties. We
should decide it.
511us1$35Z 11-08-97 19:55:02 PAGES OPINPGT
OCTOBER TERM, 1993 127
Syllabus
J. E. B. v. ALABAMA ex rel. T. B.
certiorari to the court of civil appeals of alabama
No. 92Â1239. Argued November 2, 1993-Decided April 19, 1994
At petitioner's paternity and child support trial, respondent State used
9 of its 10 peremptory challenges to remove male jurors. The court
empaneled an all-female jury after rejecting petitioner's claim that the
logic and reasoning of Batson v. Kentucky, 476 U. S. 79-in which this
Court held that the Equal Protection Clause of the Fourteenth Amend-
ment prohibits peremptory strikes based solely on race-extend to for-
bid gender-based peremptory challenges. The jury found petitioner to
be the father of the child in question and the trial court ordered him to
pay child support. The Alabama Court of Civil Appeals affirmed.
Held: The Equal Protection Clause prohibits discrimination in jury selec-
tion on the basis of gender, or on the assumption that an individual will
be biased in a particular case solely because that person happens to be
a woman or a man. Respondent's gender-based peremptory challenges
cannot survive the heightened equal protection scrutiny that this Court
affords distinctions based on gender. Respondent's rationale-that its
decision to strike virtually all males in this case may reasonably have
been based on the perception, supported by history, that men otherwise
totally qualified to serve as jurors might be more sympathetic and re-
ceptive to the arguments of a man charged in a paternity action, while
women equally qualified might be more sympathetic and receptive to
the arguments of the child's mother-is virtually unsupported and is
based on the very stereotypes the law condemns. The conclusion that
litigants may not strike potential jurors solely on the basis of gender
does not imply the elimination of all peremptory challenges. So long
as gender does not serve as a proxy for bias, unacceptable jurors may
still be removed, including those who are members of a group or class
that is normally subject to "rational basis" review and those who exhibit
characteristics that are disproportionately associated with one gender.
Pp. 131Â146.
606 So. 2d 156, reversed and remanded.
Blackmun, J., delivered the opinion of the Court, in which Stevens,
O'Connor, Souter, and Ginsburg, JJ., joined. O'Connor, J., filed a con-
curring opinion, post, p. 146. Kennedy, J., filed an opinion concurring in
the judgment, post, p. 151. Rehnquist, C. J., filed a dissenting opinion,
post, p. 154. Scalia, J., filed a dissenting opinion, in which Rehnquist,
C. J., and Thomas, J., joined, post, p. 156.
511us1$35Z 11-08-97 19:55:02 PAGES OPINPGT
128 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
John F. Porter III argued the cause and filed briefs for
petitioner.
Michael R. Dreeben argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Days, Acting Assistant Attor-
neys General Keeney and Turner, and Deputy Solicitor Gen-
eral Bryson.
Lois N. Brasfield, Assistant Attorney General of Alabama,
argued the cause for respondent. With her on the briefs
was William F. Prendergast, Assistant Attorney General.*
Justice Blackmun delivered the opinion of the Court.
In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held
that the Equal Protection Clause of the Fourteenth Amend-
ment governs the exercise of peremptory challenges by a
prosecutor in a criminal trial. The Court explained that al-
though a defendant has "no right to a `petit jury composed
in whole or in part of persons of his own race,' " id., at 85,
quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880),
the "defendant does have the right to be tried by a jury
whose members are selected pursuant to nondiscriminatory
criteria," 476 U. S., at 85Â86. Since Batson, we have reaf-
firmed repeatedly our commitment to jury selection proce-
dures that are fair and nondiscriminatory. We have recog-
nized that whether the trial is criminal or civil, potential
jurors, as well as litigants, have an equal protection right to
jury selection procedures that are free from state-sponsored
group stereotypes rooted in, and reflective of, historical prej-
udice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson
v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. Mc-
Collum, 505 U. S. 42 (1992).
Although premised on equal protection principles that
apply equally to gender discrimination, all our recent cases
*David H. Coburn, Stephanie A. Philips, and Marcia Greenberger filed
a brief for the National Women's Law Center et al. as amici curiae urg-
ing reversal.
511us1$35F 11-08-97 19:55:02 PAGES OPINPGT
Cite as: 511 U. S. 127 (1994) 129
Opinion of the Court
defining the scope of Batson involved alleged racial discrimi-
nation in the exercise of peremptory challenges. Today we
are faced with the question whether the Equal Protection
Clause forbids intentional discrimination on the basis of gen-
der, just as it prohibits discrimination on the basis of race.
We hold that gender, like race, is an unconstitutional proxy
for juror competence and impartiality.
I
On behalf of relator T. B., the mother of a minor child,
respondent State of Alabama filed a complaint for paternity
and child support against petitioner J. E. B. in the District
Court of Jackson County, Alabama. On October 21, 1991,
the matter was called for trial and jury selection began.
The trial court assembled a panel of 36 potential jurors, 12
males and 24 females. After the court excused three jurors
for cause, only 10 of the remaining 33 jurors were male. The
State then used 9 of its 10 peremptory strikes to remove
male jurors; petitioner used all but one of his strikes to re-
move female jurors. As a result, all the selected jurors
were female.
Before the jury was empaneled, petitioner objected to the
State's peremptory challenges on the ground that they were
exercised against male jurors solely on the basis of gender,
in violation of the Equal Protection Clause of the Fourteenth
Amendment. App. 22. Petitioner argued that the logic and
reasoning of Batson v. Kentucky, which prohibits peremp-
tory strikes solely on the basis of race, similarly forbids in-
tentional discrimination on the basis of gender. The court
rejected petitioner's claim and empaneled the all-female jury.
App. 23. The jury found petitioner to be the father of the
child, and the court entered an order directing him to pay
child support. On postjudgment motion, the court reaf-
firmed its ruling that Batson does not extend to gender-
based peremptory challenges. App. 33. The Alabama
Court of Civil Appeals affirmed, 606 So. 2d 156 (1992), rely-
511us1$35F 11-08-97 19:55:02 PAGES OPINPGT
130 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
ing on Alabama precedent, see, e. g., Murphy v. State, 596
So. 2d 42 (Ala. Crim. App. 1991), cert. denied, 506 U. S. 827
(1992), and Ex parte Murphy, 596 So. 2d 45 (Ala. 1992). The
Supreme Court of Alabama denied certiorari, No. 1911717
(Oct. 23, 1992).
We granted certiorari, 508 U. S. 905 (1993), to resolve a
question that has created a conflict of authority-whether
the Equal Protection Clause forbids peremptory challenges
on the basis of gender as well as on the basis of race.1 Today
we reaffirm what, by now, should be axiomatic: Intentional
discrimination on the basis of gender by state actors violates
1 The Federal Courts of Appeals have divided on the issue. See United
States v. De Gross, 913 F. 2d 1417 (CA9 1990), and 960 F. 2d 1433, 1437Â
1443 (1992) (en banc) (extending Batson v. Kentucky, 476 U. S. 79 (1986),
to prohibit gender-based peremptory challenges in both criminal and civil
trials); cf. United States v. Nichols, 937 F. 2d 1257, 1262Â1264 (CA7 1991)
(declining to extend Batson to gender), cert. denied, 502 U. S. 1080 (1992);
United States v. Hamilton, 850 F. 2d 1038, 1042Â1043 (CA4 1988) (same),
cert. dism'd, 489 U. S. 1094 (1989), and cert. denied, 493 U. S. 1069 (1990);
United States v. Broussard, 987 F. 2d 215, 218Â220 (CA5 1993) (same).
State courts also have considered the constitutionality of gender-based
peremptory challenges. See Laidler v. State, 627 So. 2d 1263 (Fla. App.
1993) (extending Batson to gender); State v. Burch, 65 Wash. App. 828,
830 P. 2d 357 (1992) (same, relying on State and Federal Constitutions);
Di Donato v. Santini, 232 Cal. App. 3d 721, 283 Cal. Rptr. 751 (1991),
review denied (Cal., Oct. 2, 1991); Tyler v. State, 330 Md. 261, 623 A. 2d
648 (1993) (relying on State Constitution); People v. Mitchell, 228 Ill. App.
3d 917, 593 N. E. 2d 882 (1992) (same), aff'd in part and vacated in relevant
part, 155 Ill. 2d 643, 602 N. E. 2d 467 (1993); State v. Gonzales, 111 N. M.
590, 808 P. 2d 40 (App.) (same), cert. denied, 111 N. M. 590, 806 P. 2d 65
(1991); State v. Levinson, 71 Haw. 492, 498Â499, 795 P. 2d 845, 849 (1990)
(same); People v. Irizarry, 165 App. Div. 2d 715, 560 N. Y. S. 2d 279 (1990)
(same); Commonwealth v. Hutchinson, 395 Mass. 568, 570, 481 N. E. 2d
188, 190 (1985) (same); cf. State v. Culver, 293 Neb. 228, 444 N. W. 2d 662
(1989) (refusing to extend Batson to gender); State v. Clay, 779 S. W. 2d
673, 676 (Mo. App. 1989) (same); State v. Adams, 533 So. 2d 1060, 1063 (La.
App. 1988) (same), cert. denied, 540 So. 2d 338 (La. 1989); State v. Oliviera,
534 A. 2d 867, 870 (R. I. 1987) (same); Murphy v. State, 596 So. 2d 42 (Ala.
Crim. App. 1991) (same), cert. denied, 596 So. 2d 45 (Ala.), cert. denied,
506 U. S. 827 (1992).
511us1$35F 11-08-97 19:55:02 PAGES OPINPGT
Cite as: 511 U. S. 127 (1994) 131
Opinion of the Court
the Equal Protection Clause, particularly where, as here, the
discrimination serves to ratify and perpetuate invidious, ar-
chaic, and overbroad stereotypes about the relative abilities
of men and women.
II
Discrimination on the basis of gender in the exercise of
peremptory challenges is a relatively recent phenomenon.
Gender-based peremptory strikes were hardly practicable
during most of our country's existence, since, until the 20th
century, women were completely excluded from jury serv-
ice.2 So well entrenched was this exclusion of women that
in 1880 this Court, while finding that the exclusion of
African-American men from juries violated the Fourteenth
Amendment, expressed no doubt that a State "may confine
the selection [of jurors] to males." Strauder v. West Vir-
ginia, 100 U. S., at 310; see also Fay v. New York, 332 U. S.
261, 289Â290 (1947).
Many States continued to exclude women from jury serv-
ice well into the present century, despite the fact that women
attained suffrage upon ratification of the Nineteenth Amend-
ment in 1920.3 States that did permit women to serve on
juries often erected other barriers, such as registration re-
quirements and automatic exemptions, designed to deter
women from exercising their right to jury service. See, e. g.,
2 There was one brief exception. Between 1870 and 1871, women were
permitted to serve on juries in Wyoming Territory. They were no longer
allowed on juries after a new chief justice who disfavored the practice was
appointed in 1871. See Abrahamson, Justice and Juror, 20 Ga. L. Rev.
257, 263Â264 (1986).
3 In 1947, women still had not been granted the right to serve on juries
in 16 States. See Rudolph, Women on Juries-Voluntary or Compulsory?,
44 J. Am. Jud. Soc. 206 (1961). As late as 1961, three States, Alabama,
Mississippi, and South Carolina, continued to exclude women from jury
service. See Hoyt v. Florida, 368 U. S. 57, 62 (1961). Indeed, Alabama
did not recognize women as a "cognizable group" for jury-service purposes
until after the 1966 decision in White v. Crook, 251 F. Supp. 401 (MD Ala.)
(three-judge court).
511us1$35F 11-08-97 19:55:02 PAGES OPINPGT
132 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
Fay v. New York, 332 U. S., at 289 ("[I]n 15 of the 28 states
which permitted women to serve [on juries in 1942], they
might claim exemption because of their sex"); Hoyt v. Flor-
ida, 368 U. S. 57 (1961) (upholding affirmative registration
statute that exempted women from mandatory jury service).
The prohibition of women on juries was derived from the
English common law which, according to Blackstone, right-
fully excluded women from juries under "the doctrine of
propter defectum sexus, literally, the `defect of sex.' "
United States v. De Gross, 960 F. 2d 1433, 1438 (CA9 1992)
(en banc), quoting 2 W. Blackstone, Commentaries *362.4 In
this country, supporters of the exclusion of women from ju-
ries tended to couch their objections in terms of the ostensi-
ble need to protect women from the ugliness and depravity
of trials. Women were thought to be too fragile and virginal
to withstand the polluted courtroom atmosphere. See Bai-
ley v. State, 215 Ark. 53, 61, 219 S. W. 2d 424, 428 (1949)
("Criminal court trials often involve testimony of the foulest
kind, and they sometimes require consideration of indecent
conduct, the use of filthy and loathsome words, references to
intimate sex relationships, and other elements that would
prove humiliating, embarrassing and degrading to a lady");
In re Goodell, 39 Wis. 232, 245Â246 (1875) (endorsing statu-
tory ineligibility of women for admission to the bar because
"[r]everence for all womanhood would suffer in the public
4 In England there was at least one deviation from the general rule that
only males could serve as jurors. If a woman was subject to capital pun-
ishment, or if a widow sought postponement of the disposition of her hus-
band's estate until birth of a child, a writ de ventre inspiciendo permitted
the use of a jury of matrons to examine the woman to determine whether
she was pregnant. But even when a jury of matrons was used, the exami-
nation took place in the presence of 12 men, who also composed part of
the jury in such cases. The jury of matrons was used in the United States
during the Colonial period, but apparently fell into disuse when the medi-
cal profession began to perform that function. See Note, Jury Service for
Women, 12 U. Fla. L. Rev. 224, 224Â225 (1959).
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Opinion of the Court
spectacle of women . . . so engaged"); Bradwell v. State, 16
Wall. 130, 141 (1873) (concurring opinion) ("[T]he civil law, as
well as nature herself, has always recognized a wide differ-
ence in the respective spheres and destinies of man and
woman. Man is, or should be, woman's protector and de-
fender. 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 mis-
sion of woman are to fulfil the noble and benign offices of
wife and mother. This is the law of the Creator"). Cf.
Frontiero v. Richardson, 411 U. S. 677, 684 (1973) (plurality
opinion) (This "attitude of `romantic paternalism' . . . put
women, not on a pedestal, but in a cage").
This Court in Ballard v. United States, 329 U. S. 187
(1946), first questioned the fundamental fairness of denying
women the right to serve on juries. Relying on its supervi-
sory powers over the federal courts, it held that women may
not be excluded from the venire in federal trials in States
where women were eligible for jury service under local law.
In response to the argument that women have no superior
or unique perspective, such that defendants are denied a fair
trial by virtue of their exclusion from jury panels, the
Court explained:
"It is said . . . that an all male panel drawn from the
various groups within a community will be as truly rep-
resentative as if women were included. The thought is
that the factors which tend to influence the action of
women are the same as those which influence the action
of men-personality, background, economic status-and
not sex. Yet it is not enough to say that women when
sitting as jurors neither act nor tend to act as a class.
Men likewise do not act like a class. . . . The truth is
that the two sexes are not fungible; a community made
up exclusively of one is different from a community com-
posed of both; the subtle interplay of influence one on
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134 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
the other is among the imponderables. To insulate the
courtroom from either may not in a given case make an
iota of difference. Yet a flavor, a distinct quality is lost
if either sex is excluded." Id., at 193Â194 (footnotes
omitted).
Fifteen years later, however, the Court still was unwilling
to translate its appreciation for the value of women's contri-
bution to civic life into an enforceable right to equal treat-
ment under state laws governing jury service. In Hoyt v.
Florida, 368 U. S., at 61, the Court found it reasonable, "[d]e-
spite the enlightened emancipation of women," to exempt
women from mandatory jury service by statute, allowing
women to serve on juries only if they volunteered to serve.
The Court justified the differential exemption policy on the
ground that women, unlike men, occupied a unique position
"as the center of home and family life." Id., at 62.
In 1975, the Court finally repudiated the reasoning of Hoyt
and struck down, under the Sixth Amendment, an affirma-
tive registration statute nearly identical to the one at issue
in Hoyt. See Taylor v. Louisiana, 419 U. S. 522 (1975).5
We explained: "Restricting jury service to only special
groups or excluding identifiable segments playing major
roles in the community cannot be squared with the constitu-
tional concept of jury trial." Id., at 530. The diverse and
representative character of the jury must be maintained
" `partly as assurance of a diffused impartiality and partly
because sharing in the administration of justice is a phase
of civic responsibility.' " Id., at 530Â531, quoting Thiel v.
Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter,
5 Taylor distinguished Hoyt by explaining that that case "did not involve
a defendant's Sixth Amendment right to a jury drawn from a fair cross
section of the community," 419 U. S., at 534. The Court now, however,
has stated that Taylor "in effect" overruled Hoyt. See Payne v. Tennes-
see, 501 U. S. 808, 828, n. 1 (1991).
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Opinion of the Court
J., dissenting). See also Duren v. Missouri, 439 U. S. 357
(1979).
III
Taylor relied on Sixth Amendment principles, but the
opinion's approach is consistent with the heightened equal
protection scrutiny afforded gender-based classifications.
Since Reed v. Reed, 404 U. S. 71 (1971), this Court consist-
ently has subjected gender-based classifications to height-
ened scrutiny in recognition of the real danger that govern-
ment policies that professedly are based on reasonable
considerations in fact may be reflective of "archaic and over-
broad" generalizations about gender, see Schlesinger v. Bal-
lard, 419 U. S. 498, 506Â507 (1975), or based on "outdated
misconceptions concerning the role of females in the home
rather than in the `marketplace and world of ideas.' " Craig
v. Boren, 429 U. S. 190, 198Â199 (1976). See also Cleburne
v. Cleburne Living Center, Inc., 473 U. S. 432, 441 (1985)
(differential treatment of the sexes "very likely reflect[s]
outmoded notions of the relative capabilities of men and
women").
Despite the heightened scrutiny afforded distinctions
based on gender, respondent argues that gender discrimina-
tion in the selection of the petit jury should be permitted,
though discrimination on the basis of race is not. Respond-
ent suggests that "gender discrimination in this country . . .
has never reached the level of discrimination" against
African-Americans, and therefore gender discrimination,
unlike racial discrimination, is tolerable in the courtroom.
Brief for Respondent 9.
While the prejudicial attitudes toward women in this coun-
try have not been identical to those held toward racial minor-
ities, the similarities between the experiences of racial mi-
norities and women, in some contexts, "overpower those
differences." Note, Beyond Batson: Eliminating Gender-
Based Peremptory Challenges, 105 Harv. L. Rev. 1920, 1921
511us1$35F 11-08-97 19:55:03 PAGES OPINPGT
136 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
(1992). As a plurality of this Court observed in Frontiero
v. Richardson, 411 U. S., at 685:
"[T]hroughout much of the 19th century the position of
women in our society was, in many respects, comparable
to that of blacks under the pre-Civil War slave codes.
Neither slaves nor women could hold office, serve on
juries, or bring suit in their own names, and married
women traditionally were denied the legal capacity to
hold or convey property or to serve as legal guardians
of their own children. . . . And although blacks were
guaranteed the right to vote in 1870, women were
denied even that right-which is itself `preservative
of other basic civil and political rights'-until adoption
of the Nineteenth Amendment half a century later."
(Footnote omitted.)
Certainly, with respect to jury service, African-Americans
and women share a history of total exclusion, a history which
came to an end for women many years after the embarrassing
chapter in our history came to an end for African-Americans.
We need not determine, however, whether women or racial
minorities have suffered more at the hands of discriminatory
state actors during the decades of our Nation's history. It
is necessary only to acknowledge that "our Nation has had a
long and unfortunate history of sex discrimination," id., at
684, a history which warrants the heightened scrutiny we
afford all gender-based classifications today. Under our
equal protection jurisprudence, gender-based classifications
require "an exceedingly persuasive justification" in order to
survive constitutional scrutiny. See Personnel Administra-
tor of Mass. v. Feeney, 442 U. S. 256, 273 (1979). See also
Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724
(1982); Kirchberg v. Feenstra, 450 U. S. 455, 461 (1981).
Thus, the only question is whether discrimination on the
basis of gender in jury selection substantially furthers the
State's legitimate interest in achieving a fair and impartial
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Opinion of the Court
trial.6 In making this assessment, we do not weigh the
value of peremptory challenges as an institution against our
asserted commitment to eradicate invidious discrimination
from the courtroom.7 Instead, we consider whether pe-
remptory challenges based on gender stereotypes provide
substantial aid to a litigant's effort to secure a fair and impar-
tial jury.8
Far from proffering an exceptionally persuasive justifica-
tion for its gender-based peremptory challenges, respondent
maintains that its decision to strike virtually all the males
from the jury in this case "may reasonably have been based
upon the perception, supported by history, that men other-
wise totally qualified to serve upon a jury in any case might
6 Because we conclude that gender-based peremptory challenges are not
substantially related to an important government objective, we once again
need not decide whether classifications based on gender are inherently
suspect. See Mississippi Univ. for Women, 458 U. S., at 724, n. 9; Stan-
ton v. Stanton, 421 U. S. 7, 13 (1975); Harris v. Forklift Systems, Inc., 510
U. S. 17, 26, n. (1993) (Ginsburg, J., concurring) ("[I]t remains an open
question whether `classifications based on gender are inherently suspect' ")
(citations omitted).
7 Although peremptory challenges are valuable tools in jury trials, they
"are not constitutionally protected fundamental rights; rather they are but
one state-created means to the constitutional end of an impartial jury and
a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992).
8 Respondent argues that we should recognize a special state interest in
this case: the State's interest in establishing the paternity of a child born
out of wedlock. Respondent contends that this interest justifies the use
of gender-based peremptory challenges, since illegitimate children are
themselves victims of historical discrimination and entitled to heightened
scrutiny under the Equal Protection Clause.
What respondent fails to recognize is that the only legitimate interest
it could possibly have in the exercise of its peremptory challenges is secur-
ing a fair and impartial jury. See Edmonson v. Leesville Concrete Co.,
500 U. S. 614, 620 (1991) ("[The] sole purpose [of the peremptory challenge]
is to permit litigants to assist the government in the selection of an impar-
tial trier of fact"). This interest does not change with the parties or the
causes. The State's interest in every trial is to see that the proceedings
are carried out in a fair, impartial, and nondiscriminatory manner.
511us1$35F 11-08-97 19:55:03 PAGES OPINPGT
138 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
be more sympathetic and receptive to the arguments of a
man alleged in a paternity action to be the father of an out-
of-wedlock child, while women equally qualified to serve
upon a jury might be more sympathetic and receptive to the
arguments of the complaining witness who bore the child."
Brief for Respondent 10.9
We shall not accept as a defense to gender-based peremp-
tory challenges "the very stereotype the law condemns."
Powers v. Ohio, 499 U. S., at 410. Respondent's rationale,
not unlike those regularly expressed for gender-based
strikes, is reminiscent of the arguments advanced to justify
the total exclusion of women from juries.10 Respondent of-
9 Respondent cites one study in support of its quasi-empirical claim that
women and men may have different attitudes about certain issues justify-
ing the use of gender as a proxy for bias. See R. Hastie, S. Penrod, &
N. Pennington, Inside the Jury 140 (1983). The authors conclude: "Nei-
ther student nor citizen judgments for typical criminal case materials have
revealed differences between male and female verdict preferences. . . .
The picture differs [only] for rape cases, where female jurors appear to
be somewhat more conviction-prone than male jurors." The majority of
studies suggest that gender plays no identifiable role in jurors' attitudes.
See, e. g., V. Hans & N. Vidmar, Judging the Jury 76 (1986) ("[I]n the
majority of studies there are no significant differences in the way men and
women perceive and react to trials; yet a few studies find women more
defense-oriented, while still others show women more favorable to the
prosecutor"). Even in 1956, before women had a constitutional right to
serve on juries, some commentators warned against using gender as a
proxy for bias. See F. Busch, Law and Tactics in Jury Trials § 143, p. 207
(1949) ("In this age of general and specialized education, availed of gener-
ally by both men and women, it would appear unsound to base a peremp-
tory challenge in any case upon the sole ground of sex . . .").
10 A manual formerly used to instruct prosecutors in Dallas, Texas, pro-
vided the following advice: " `I don't like women jurors because I can't
trust them. They do, however, make the best jurors in cases involving
crimes against children. It is possible that their "women's intuition" can
help you if you can't win your case with the facts.' " Alschuler, The Su-
preme Court and the Jury: Voir Dire, Peremptory Challenges, and the
Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 210 (1989). Another
widely circulated trial manual speculated:
"If counsel is depending upon a clearly applicable rule of law and if he
wants to avoid a verdict of `intuition' or `sympathy,' if his verdict in
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Opinion of the Court
fers virtually no support for the conclusion that gender alone
is an accurate predictor of juror's attitudes; yet it urges this
Court to condone the same stereotypes that justified the
wholesale exclusion of women from juries and the ballot
box.11 Respondent seems to assume that gross generaliza-
tions that would be deemed impermissible if made on the
amount is to be proved by clearly demonstrated blackboard figures for
example, generally he would want a male juror.
. . . . .
"[But] women . . . are desired jurors when plaintiff is a man. A woman
juror may see a man impeached from the beginning of the case to the end,
but there is at least the chance [with] the woman juror (particularly if the
man happens to be handsome or appealing) [that] the plaintiff's derelic-
tions in and out of court will be overlooked. A woman is inclined to for-
give sin in the opposite sex; but definitely not her own." 3 M. Belli, Mod-
ern Trials §§ 51.67 and 51.68, pp. 446Â447 (2d ed. 1982).
11 Even if a measure of truth can be found in some of the gender stereo-
types used to justify gender-based peremptory challenges, that fact alone
cannot support discrimination on the basis of gender in jury selection.
We have made abundantly clear in past cases that gender classifications
that rest on impermissible stereotypes violate the Equal Protection
Clause, even when some statistical support can be conjured up for the
generalization. See, e. g., Weinberger v. Wiesenfeld, 420 U. S. 636, 645
(1975) (holding unconstitutional a Social Security Act classification author-
izing benefits to widows but not to widowers despite the fact that the
justification for the differential treatment was "not entirely without empir-
ical support"); Craig v. Boren, 429 U. S. 190, 201 (1976) (invalidating an
Oklahoma law that established different drinking ages for men and
women, although the evidence supporting the age differential was "not
trivial in a statistical sense"). The generalization advanced by Alabama
in support of its asserted right to discriminate on the basis of gender is,
at the least, overbroad, and serves only to perpetuate the same "outmoded
notions of the relative capabilities of men and women," Cleburne v. Cle-
burne Living Center, Inc., 473 U. S. 432, 441 (1985), that we have invali-
dated in other contexts. See Frontiero v. Richardson, 411 U. S. 677
(1973); Stanton v. Stanton, supra; Craig v. Boren, supra; Mississippi
Univ. for Women v. Hogan, supra. The Equal Protection Clause, as inter-
preted by decisions of this Court, acknowledges that a shred of truth may
be contained in some stereotypes, but requires that state actors look be-
yond the surface before making judgments about people that are likely
to stigmatize as well as to perpetuate historical patterns of discrimination.
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140 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
basis of race are somehow permissible when made on the
basis of gender.
Discrimination in jury selection, whether based on race or
on gender, causes harm to the litigants, the community, and
the individual jurors who are wrongfully excluded from par-
ticipation in the judicial process. The litigants are harmed
by the risk that the prejudice that motivated the discrimina-
tory selection of the jury will infect the entire proceedings.
See Edmonson, 500 U. S., at 628 (discrimination in the court-
room "raises serious questions as to the fairness of the pro-
ceedings conducted there"). The community is harmed by
the State's participation in the perpetuation of invidious
group stereotypes and the inevitable loss of confidence in our
judicial system that state-sanctioned discrimination in the
courtroom engenders.
When state actors exercise peremptory challenges in reli-
ance on gender stereotypes, they ratify and reinforce preju-
dicial views of the relative abilities of men and women. Be-
cause these stereotypes have wreaked injustice in so many
other spheres of our country's public life, active discrimina-
tion by litigants on the basis of gender during jury selection
"invites cynicism respecting the jury's neutrality and its obli-
gation to adhere to the law." Powers v. Ohio, 499 U. S., at
412. The potential for cynicism is particularly acute in cases
where gender-related issues are prominent, such as cases in-
volving rape, sexual harassment, or paternity. Discrimina-
tory use of peremptory challenges may create the impression
that the judicial system has acquiesced in suppressing full
participation by one gender or that the "deck has been
stacked" in favor of one side. See id., at 413 ("The verdict
will not be accepted or understood [as fair] if the jury is cho-
sen by unlawful means at the outset").
In recent cases we have emphasized that individual jurors
themselves have a right to nondiscriminatory jury selection
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Opinion of the Court
procedures.12 See Powers, supra, Edmonson, supra, and
Georgia v. McCollum, 505 U. S. 42 (1992). Contrary to re-
spondent's suggestion, this right extends to both men and
women. See Mississippi Univ. for Women v. Hogan, 458
U. S, at 723 (that a state practice "discriminates against
males rather than against females does not exempt it from
scrutiny or reduce the standard of review"); cf. Brief for Re-
spondent 9 (arguing that men deserve no protection from
gender discrimination in jury selection because they are not
victims of historical discrimination). All persons, when
granted the opportunity to serve on a jury, have the right
not to be excluded summarily because of discriminatory and
stereotypical presumptions that reflect and reinforce pat-
12 Given our recent precedent, the doctrinal basis for Justice Scalia's
dissenting opinion is a mystery. Justice Scalia points out that the dis-
crimination at issue in this case was directed at men, rather than women,
but then acknowledges that the Equal Protection Clause protects both
men and women from intentional discrimination on the basis of gender.
See post, at 157, citing Mississippi Univ. for Women v. Hogan, 458 U. S.,
at 723Â724. He also appears cognizant of the fact that classifications
based on gender must be more than merely rational, see post, at 160Â161;
they must be supported by an "exceedingly persuasive justification,"
Hogan, 458 U. S., at 724. Justice Scalia further admits that the Equal
Protection Clause, as interpreted by decisions of this Court, governs the
exercise of peremptory challenges in every trial, and that potential jurors,
as well as litigants, have an equal protection right to nondiscriminatory
jury selection procedures. See post, at 158Â160, citing Batson, Powers,
Edmonson, and McCollum. Justice Scalia does not suggest that we
overrule these cases, nor does he attempt to distinguish them. He inti-
mates that discrimination on the basis of gender in jury selection may be
rational, see post, at 157, but offers no "exceedingly persuasive justifica-
tion" for it. Indeed, Justice Scalia fails to advance any justification for
his apparent belief that the Equal Protection Clause, while prohibiting
discrimination on the basis of race in the exercise of peremptory chal-
lenges, allows discrimination on the basis of gender. His dissenting opin-
ion thus serves as a tacit admission that, short of overruling a decade of
cases interpreting the Equal Protection Clause, the result we reach today
is doctrinally compelled.
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142 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
terns of historical discrimination.13 Striking individual
jurors on the assumption that they hold particular views
simply because of their gender is "practically a brand upon
them, affixed by the law, an assertion of their inferiority."
Strauder v. West Virginia, 100 U. S., at 308. It denigrates
the dignity of the excluded juror, and, for a woman, rein-
vokes a history of exclusion from political participation.14
The message it sends to all those in the courtroom, and all
those who may later learn of the discriminatory act, is that
certain individuals, for no reason other than gender, are pre-
sumed unqualified by state actors to decide important ques-
tions upon which reasonable persons could disagree.15
13 It is irrelevant that women, unlike African-Americans, are not a nu-
merical minority and therefore are likely to remain on the jury if each side
uses its peremptory challenges in an equally discriminatory fashion. Cf.
United States v. Broussard, 987 F. 2d, at 220 (declining to extend Batson
to gender; noting that "[w]omen are not a numerical minority," and there-
fore are likely to be represented on juries despite the discriminatory use
of peremptory challenges). Because the right to nondiscriminatory jury
selection procedures belongs to the potential jurors, as well as to the liti-
gants, the possibility that members of both genders will get on the jury
despite the intentional discrimination is beside the point. The exclusion
of even one juror for impermissible reasons harms that juror and under-
mines public confidence in the fairness of the system.
14 The popular refrain is that all peremptory challenges are based on
stereotypes of some kind, expressing various intuitive and frequently er-
roneous biases. See post, at 161. But where peremptory challenges are
made on the basis of group characteristics other than race or gender (like
occupation, for example), they do not reinforce the same stereotypes about
the group's competence or predispositions that have been used to prevent
them from voting, participating on juries, pursuing their chosen profes-
sions, or otherwise contributing to civic life. See Babcock, A Place in the
Palladium, Women's Rights and Jury Service, 61 U. Cinn. L. Rev. 1139,
1173 (1993).
15 Justice Scalia argues that there is no "discrimination and dishonor"
in being subject to a race- or gender-based peremptory strike. Post, at
160. Justice Scalia's argument has been rejected many times, see, e. g.,
Powers v. Ohio, 499 U. S. 400, 410 (1991), and we reject it once again. The
only support Justice Scalia offers for his conclusion is the fact that race-
and gender-based peremptory challenges have a long history in this coun-
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Opinion of the Court
IV
Our conclusion that litigants may not strike potential ju-
rors solely on the basis of gender does not imply the elimina-
tion of all peremptory challenges. Neither does it conflict
with a State's legitimate interest in using such challenges in
its effort to secure a fair and impartial jury. Parties still
may remove jurors who they feel might be less acceptable
than others on the panel; gender simply may not serve as a
proxy for bias. Parties may also exercise their peremptory
challenges to remove from the venire any group or class of
individuals normally subject to "rational basis" review. See
Cleburne v. Cleburne Living Center, Inc., 473 U. S., at 439Â
442; Clark v. Jeter, 486 U. S. 456, 461 (1988). Even strikes
based on characteristics that are disproportionately associ-
ated with one gender could be appropriate, absent a showing
of pretext.16
If conducted properly, voir dire can inform litigants about
potential jurors, making reliance upon stereotypical and pej-
orative notions about a particular gender or race both unnec-
essary and unwise. Voir dire provides a means of discover-
ing actual or implied bias and a firmer basis upon which the
try. Post, at 159 (discriminatory peremptory challenges have "coexisted
with the Equal Protection Clause for 120 years"); post, at 160 (there was
a "106-year interlude between our holding that exclusion from juries on
the basis of race was unconstitutional, [Strauder], and our holding that
peremptory challenges on the basis of race were unconstitutional, [Bat-
son]"). We do not dispute that this Court long has tolerated the discrimi-
natory use of peremptory challenges, but this is not a reason to continue
to do so. Many of "our people's traditions," see post, at 163, such as de
jure segregation and the total exclusion of women from juries, are now
unconstitutional even though they once coexisted with the Equal Protec-
tion Clause.
16 For example, challenging all persons who have had military experi-
ence would disproportionately affect men at this time, while challenging
all persons employed as nurses would disproportionately affect women.
Without a showing of pretext, however, these challenges may well not be
unconstitutional, since they are not gender or race based. See Hernandez
v. New York, 500 U. S. 352 (1991).
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144 J. E. B. v. ALABAMA ex rel. T. B.
Opinion of the Court
parties may exercise their peremptory challenges intelli-
gently. See, e. g., Nebraska Press Assn. v. Stuart, 427 U. S.
539, 602 (1976) (Brennan, J., concurring in judgment) (voir
dire "facilitate[s] intelligent exercise of peremptory chal-
lenges and [helps] uncover factors that would dictate disqual-
ification for cause"); United States v. Witt, 718 F. 2d 1494,
1497 (CA10 1983) ("Without an adequate foundation [laid by
voir dire], counsel cannot exercise sensitive and intelligent
peremptory challenges").
The experience in the many jurisdictions that have barred
gender-based challenges belies the claim that litigants and
trial courts are incapable of complying with a rule barring
strikes based on gender. See n. 1, supra (citing state and
federal jurisdictions that have extended Batson to gender).17
As with race-based Batson claims, a party alleging gender
discrimination must make a prima facie showing of inten-
17 Respondent argues that Alabama's method of jury selection would
make the extension of Batson to gender particularly burdensome. In Al-
abama, the "struck-jury" system is employed, a system which requires
litigants to strike alternately until 12 persons remain, who then constitute
the jury. See Ala. Rule Civ. Proc. 47 (1990). Respondent suggests that,
in some cases at least, it is necessary under this system to continue strik-
ing persons from the venire after the litigants no longer have an articula-
ble reason for doing so. As a result, respondent contends, some litigants
may be unable to come up with gender-neutral explanations for their
strikes.
We find it worthy of note that Alabama has managed to maintain its
struck-jury system even after the ruling in Batson, despite the fact that
there are counties in Alabama that are predominately African-American.
In those counties, it presumably would be as difficult to come up with
race-neutral explanations for peremptory strikes as it would be to advance
gender-neutral explanations. No doubt the voir dire process aids litigants
in their ability to articulate race-neutral explanations for their peremptory
challenges. The same should be true for gender. Regardless, a State's
choice of jury-selection methods cannot insulate it from the strictures
of the Equal Protection Clause. Alabama is free to adopt whatever
jury-selection procedures it chooses so long as they do not violate the
Constitution.
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Opinion of the Court
tional discrimination before the party exercising the chal-
lenge is required to explain the basis for the strike. Batson,
476 U. S., at 97. When an explanation is required, it need
not rise to the level of a "for cause" challenge; rather, it
merely must be based on a juror characteristic other than
gender, and the proffered explanation may not be pretextual.
See Hernandez v. New York, 500 U. S. 352 (1991).
Failing to provide jurors the same protection against gen-
der discrimination as race discrimination could frustrate the
purpose of Batson itself. Because gender and race are over-
lapping categories, gender can be used as a pretext for racial
discrimination.18 Allowing parties to remove racial minori-
ties from the jury not because of their race, but because of
their gender, contravenes well-established equal protection
principles and could insulate effectively racial discrimination
from judicial scrutiny.
V
Equal opportunity to participate in the fair administration
of justice is fundamental to our democratic system.19 It not
18 The temptation to use gender as a pretext for racial discrimination
may explain why the majority of the lower court decisions extending Bat-
son to gender involve the use of peremptory challenges to remove minor-
ity women. All four of the gender-based peremptory cases to reach the
Federal Courts of Appeals and cited in n. 1, supra, involved the striking
of minority women.
19 This Court almost a half century ago stated:
"The American tradition of trial by jury, considered in connection with
either criminal or civil proceedings, necessarily contemplates an impartial
jury drawn from a cross-section of the community. . . . This does not mean,
of course, that every jury must contain representatives of all the economic,
social, religious, racial, political and geographical groups of the community;
frequently such complete representation would be impossible. But it does
mean that prospective jurors shall be selected by court officials without
systematic and intentional exclusion of any of these groups. Recognition
must be given to the fact that those eligible for jury service are to be
found in every stratum of society. Jury competence is an individual
rather than a group or class matter. That fact lies at the very heart of
511us1$35F 11-08-97 19:55:03 PAGES OPINPGT
146 J. E. B. v. ALABAMA ex rel. T. B.
O'Connor, J., concurring
only furthers the goals of the jury system. It reaffirms the
promise of equality under the law-that all citizens, regard-
less of race, ethnicity, or gender, have the chance to take part
directly in our democracy. Powers v. Ohio, 499 U. S., at 407
("Indeed, with the exception of voting, for most citizens the
honor and privilege of jury duty is their most significant op-
portunity to participate in the democratic process"). When
persons are excluded from participation in our democratic
processes solely because of race or gender, this promise of
equality dims, and the integrity of our judicial system is
jeopardized.
In view of these concerns, the Equal Protection Clause
prohibits discrimination in jury selection on the basis of gen-
der, or on the assumption that an individual will be biased
in a particular case for no reason other than the fact that the
person happens to be a woman or happens to be a man. As
with race, the "core guarantee of equal protection, ensuring
citizens that their State will not discriminate . . . , would be
meaningless were we to approve the exclusion of jurors on
the basis of such assumptions, which arise solely from the
jurors' [gender]." Batson, 476 U. S., at 97Â98.
The judgment of the Court of Civil Appeals of Alabama is
reversed, and the case is remanded to that court for further
proceedings not inconsistent with this opinion.
It is so ordered.
Justice O'Connor, concurring.
I agree with the Court that the Equal Protection Clause
prohibits the government from excluding a person from jury
service on account of that person's gender. Ante, at 135Â
137. The State's proffered justifications for its gender-
based peremptory challenges are far from the " `exceedingly
persuasive' " showing required to sustain a gender-based
the jury system. To disregard it is to open the door to class distinctions
and discriminations which are abhorrent to the democratic ideals of trial
by jury." Thiel v. Southern Pacific Co., 328 U. S. 217, 220 (1946).
511us1$35J 11-08-97 19:55:03 PAGES OPINPGT
Cite as: 511 U. S. 127 (1994) 147
O'Connor, J., concurring
classification. Mississippi Univ. for Women v. Hogan, 458
U. S. 718, 724 (1982); ante, at 137Â140. I therefore join the
Court's opinion in this case. But today's important blow
against gender discrimination is not costless. I write sepa-
rately to discuss some of these costs, and to express my be-
lief that today's holding should be limited to the govern-
ment's use of gender-based peremptory strikes.
Batson v. Kentucky, 476 U. S. 79 (1986), itself was a sig-
nificant intrusion into the jury selection process. Batson
minihearings are now routine in state and federal trial
courts, and Batson appeals have proliferated as well. De-
mographics indicate that today's holding may have an even
greater impact than did Batson itself. In further constitu-
tionalizing jury selection procedures, the Court increases the
number of cases in which jury selection-once a sideshow-
will become part of the main event.
For this same reason, today's decision further erodes the
role of the peremptory challenge. The peremptory chal-
lenge is "a practice of ancient origin" and is "part of our com-
mon law heritage." Edmonson v. Leesville Concrete Co.,
500 U. S. 614, 639 (1991) (O'Connor, J., dissenting). The
principal value of the peremptory is that it helps produce
fair and impartial juries. Swain v. Alabama, 380 U. S. 202,
218Â219 (1965); Babcock, Voir Dire: Preserving "Its Wonder-
ful Power," 27 Stan. L. Rev. 545, 549Â558 (1975). "Peremp-
tory challenges, by enabling each side to exclude those jurors
it believes will be most partial toward the other side, are a
means of eliminat[ing] extremes of partiality on both sides,
thereby assuring the selection of a qualified and unbiased
jury." Holland v. Illinois, 493 U. S. 474, 484 (1990) (empha-
sis deleted; internal quotation marks and citations omitted).
The peremptory's importance is confirmed by its persistence:
It was well established at the time of Blackstone and contin-
ues to endure in all the States. Id., at 481.
Moreover, "[t]he essential nature of the peremptory chal-
lenge is that it is one exercised without a reason stated, with-
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148 J. E. B. v. ALABAMA ex rel. T. B.
O'Connor, J., concurring
out inquiry and without being subject to the court's control."
Swain, 380 U. S., at 220. Indeed, often a reason for it cannot
be stated, for a trial lawyer's judgments about a juror's sym-
pathies are sometimes based on experienced hunches and ed-
ucated guesses, derived from a juror's responses at voir dire
or a juror's " `bare looks and gestures.' " Ibid. That a trial
lawyer's instinctive assessment of a juror's predisposition
cannot meet the high standards of a challenge for cause does
not mean that the lawyer's instinct is erroneous. Cf. V.
Starr & M. McCormick, Jury Selection 522 (1993) (nonverbal
cues can be better than verbal responses at revealing a ju-
ror's disposition). Our belief that experienced lawyers will
often correctly intuit which jurors are likely to be the least
sympathetic, and our understanding that the lawyer will
often be unable to explain the intuition, are the very reason
we cherish the peremptory challenge. But, as we add, layer
by layer, additional constitutional restraints on the use of the
peremptory, we force lawyers to articulate what we know is
often inarticulable.
In so doing we make the peremptory challenge less discre-
tionary and more like a challenge for cause. We also in-
crease the possibility that biased jurors will be allowed onto
the jury, because sometimes a lawyer will be unable to pro-
vide an acceptable gender-neutral explanation even though
the lawyer is in fact correct that the juror is unsympathetic.
Similarly, in jurisdictions where lawyers exercise their
strikes in open court, lawyers may be deterred from using
their peremptories, out of the fear that if they are unable to
justify the strike the court will seat a juror who knows that
the striking party thought him unfit. Because I believe the
peremptory remains an important litigator's tool and a fun-
damental part of the process of selecting impartial juries,
our increasing limitation of it gives me pause.
Nor is the value of the peremptory challenge to the litigant
diminished when the peremptory is exercised in a gender-
based manner. We know that like race, gender matters. A
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Cite as: 511 U. S. 127 (1994) 149
O'Connor, J., concurring
plethora of studies make clear that in rape cases, for ex-
ample, female jurors are somewhat more likely to vote
to convict than male jurors. See R. Hastie, S. Penrod, &
N. Pennington, Inside the Jury 140Â141 (1983) (collect-
ing and summarizing empirical studies). Moreover, though
there have been no similarly definitive studies regarding, for
example, sexual harassment, child custody, or spousal or
child abuse, one need not be a sexist to share the intuition
that in certain cases a person's gender and resulting life
experience will be relevant to his or her view of the case.
" `Jurors are not expected to come into the jury box and leave
behind all that their human experience has taught them.' "
Beck v. Alabama, 447 U. S. 625, 642 (1980). Individuals are
not expected to ignore as jurors what they know as men-
or women.
Today's decision severely limits a litigant's ability to act
on this intuition, for the import of our holding is that any
correlation between a juror's gender and attitudes is irrele-
vant as a matter of constitutional law. But to say that gen-
der makes no difference as a matter of law is not to say that
gender makes no difference as a matter of fact. I previously
have said with regard to Batson: "That the Court will not
tolerate prosecutors' racially discriminatory use of the pe-
remptory challenge, in effect, is a special rule of relevance, a
statement about what this Nation stands for, rather than a
statement of fact." Brown v. North Carolina, 479 U. S. 940,
941Â942 (1986) (opinion concurring in denial of certiorari).
Today's decision is a statement that, in an effort to eliminate
the potential discriminatory use of the peremptory, see
Batson, 476 U. S., at 102 (Marshall, J., concurring), gender is
now governed by the special rule of relevance formerly re-
served for race. Though we gain much from this statement,
we cannot ignore what we lose. In extending Batson to
gender we have added an additional burden to the state
and federal trial process, taken a step closer to eliminating
the peremptory challenge, and diminished the ability of liti-
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150 J. E. B. v. ALABAMA ex rel. T. B.
O'Connor, J., concurring
gants to act on sometimes accurate gender-based assump-
tions about juror attitudes.
These concerns reinforce my conviction that today's deci-
sion should be limited to a prohibition on the government's
use of gender-based peremptory challenges. The Equal
Protection Clause prohibits only discrimination by state
actors. In Edmonson, supra, we made the mistake of con-
cluding that private civil litigants were state actors when
they exercised peremptory challenges; in Georgia v. McCol-
lum, 505 U. S. 42, 50Â55 (1992), we compounded the mistake
by holding that criminal defendants were also state actors.
Our commitment to eliminating discrimination from the legal
process should not allow us to forget that not all that occurs
in the courtroom is state action. Private civil litigants are
just that-private litigants. "The government erects the
platform; it does not thereby become responsible for all that
occurs upon it." Edmonson, 500 U. S., at 632 (O'Connor,
J., dissenting).
Clearly, criminal defendants are not state actors. "From
arrest, to trial, to possible sentencing and punishment, the
antagonistic relationship between government and the ac-
cused is clear for all to see. . . . [T]he unique relationship
between criminal defendants and the State precludes attrib-
uting defendants' actions to the State . . . ." McCollum,
supra, at 67 (O'Connor, J., dissenting). The peremptory
challenge is " `one of the most important of the rights secured
to the accused.' " Swain, 380 U. S., at 219 (emphasis added);
Goldwasser, Limiting a Criminal Defendant's Use of Peremp-
tory Challenges: On Symmetry and the Jury in a Criminal
Trial, 102 Harv. L. Rev. 808, 826Â833 (1989). Limiting the
accused's use of the peremptory is "a serious misordering of
our priorities," for it means "we have exalted the right of
citizens to sit on juries over the rights of the criminal defend-
ant, even though it is the defendant, not the jurors, who faces
imprisonment or even death." McCollum, supra, at 61Â62
(Thomas, J., concurring in judgment).
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Cite as: 511 U. S. 127 (1994) 151
Kennedy, J., concurring in judgment
Accordingly, I adhere to my position that the Equal Pro-
tection Clause does not limit the exercise of peremptory
challenges by private civil litigants and criminal defendants.
This case itself presents no state action dilemma, for here
the State of Alabama itself filed the paternity suit on behalf
of petitioner. But what of the next case? Will we, in the
name of fighting gender discrimination, hold that the bat-
tered wife-on trial for wounding her abusive husband-is a
state actor? Will we preclude her from using her peremp-
tory challenges to ensure that the jury of her peers contains
as many women members as possible? I assume we will,
but I hope we will not.
Justice Kennedy, concurring in the judgment.
I am in full agreement with the Court that the Equal Pro-
tection Clause prohibits gender discrimination in the exer-
cise of peremptory challenges. I write to explain my under-
standing of why our precedents lead to that conclusion.
Though in some initial drafts the Fourteenth Amendment
was written to prohibit discrimination against "persons be-
cause of race, color or previous condition of servitude," the
Amendment submitted for consideration and later ratified
contained more comprehensive terms: "No State shall . . .
deny to any person within its jurisdiction the equal protec-
tion of the laws." See Oregon v. Mitchell, 400 U. S. 112,
172Â173 (1970) (Harlan, J., concurring in part and dissenting
in part); B. Kendrick, Journal of the Joint Committee of Fif-
teen on Reconstruction, 39th Congress, 1865Â1867, pp. 90Â91,
97Â100 (1914). In recognition of the evident historical fact
that the Equal Protection Clause was adopted to prohibit
government discrimination on the basis of race, the Court
most often interpreted it in the decades that followed in ac-
cord with that purpose. In Strauder v. West Virginia, 100
U. S. 303 (1880), for example, the Court invalidated a West
Virginia law prohibiting blacks from serving on juries. In
so doing, the decision said of the Equal Protection Clause:
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152 J. E. B. v. ALABAMA ex rel. T. B.
Kennedy, J., concurring in judgment
"What is this but declaring that the law in the States shall
be the same for the black as for the white." Id., at 307.
And while the Court held that the State could not confine
jury service to whites, it further noted that the State could
confine jury service "to males, to freeholders, to citizens, to
persons within certain ages, or to persons having educational
qualifications." Id., at 310. See also Yick Wo v. Hopkins,
118 U. S. 356, 373Â374 (1886).
As illustrated by the necessity for the Nineteenth Amend-
ment in 1920, much time passed before the Equal Protection
Clause was thought to reach beyond the purpose of prohibit-
ing racial discrimination and to apply as well to discrimina-
tion based on sex. In over 20 cases beginning in 1971, how-
ever, we have subjected government classifications based on
sex to heightened scrutiny. Neither the State nor any Mem-
ber of the Court questions that principle here. And though
the intermediate scrutiny test we have applied may not pro-
vide a very clear standard in all instances, see Craig v.
Boren, 429 U. S. 190, 221 (1976) (Rehnquist, J., dissenting),
our case law does reveal a strong presumption that gender
classifications are invalid. See, e. g., Mississippi Univ. for
Women v. Hogan, 458 U. S. 718 (1982).
There is no doubt under our precedents, therefore, that
the Equal Protection Clause prohibits sex discrimination in
the selection of jurors. Duren v. Missouri, 439 U. S. 357
(1979); Taylor v. Louisiana, 419 U. S. 522 (1975). The only
question is whether the Clause also prohibits peremptory
challenges based on sex. The Court is correct to hold that
it does. The Equal Protection Clause and our constitutional
tradition are based on the theory that an individual pos-
sesses rights that are protected against lawless action by the
government. The neutral phrasing of the Equal Protection
Clause, extending its guarantee to "any person," reveals its
concern with rights of individuals, not groups (though group
disabilities are sometimes the mechanism by which the State
violates the individual right in question). "At the heart of
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Cite as: 511 U. S. 127 (1994) 153
Kennedy, J., concurring in judgment
the Constitution's guarantee of equal protection lies the sim-
ple command that the Government must treat citizens as in-
dividuals, not as simply components of a racial [or] sexual . . .
class." Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 602
(1990) (O'Connor, J., dissenting) (emphasis deleted; internal
quotation marks omitted). For purposes of the Equal Pro-
tection Clause, an individual denied jury service because of
a peremptory challenge exercised against her on account of
her sex is no less injured than the individual denied jury
service because of a law banning members of her sex from
serving as jurors. Cf., e. g., Powers v. Ohio, 499 U. S. 400,
409Â410 (1991); Palmore v. Sidoti, 466 U. S. 429, 431Â432
(1984); Ex parte Virginia, 100 U. S. 339, 346Â347 (1880).
The injury is to personal dignity and to the individual's right
to participate in the political process. Powers, supra, at 410.
The neutrality of the Fourteenth Amendment's guarantee is
confirmed by the fact that the Court has no difficulty in find-
ing a constitutional wrong in this case, which involves males
excluded from jury service because of their gender.
The importance of individual rights to our analysis
prompts a further observation concerning what I conceive
to be the intended effect of today's decision. We do not pro-
hibit racial and gender bias in jury selection only to encour-
age it in jury deliberations. Once seated, a juror should not
give free rein to some racial or gender bias of his or her own.
The jury system is a kind of compact by which power is
transferred from the judge to jury, the jury in turn deciding
the case in accord with the instructions defining the relevant
issues for consideration. The wise limitation on the author-
ity of courts to inquire into the reasons underlying a jury's
verdict does not mean that a jury ought to disregard the
court's instructions. A juror who allows racial or gender
bias to influence assessment of the case breaches the compact
and renounces his or her oath.
In this regard, it is important to recognize that a juror sits
not as a representative of a racial or sexual group but as an
511us1$35L 11-08-97 19:55:03 PAGES OPINPGT
154 J. E. B. v. ALABAMA ex rel. T. B.
Rehnquist, C. J., dissenting
individual citizen. Nothing would be more pernicious to the
jury system than for society to presume that persons of dif-
ferent backgrounds go to the jury room to voice prejudice.
Cf. Metro Broadcasting, supra, at 618 (O'Connor, J., dis-
senting). The jury pool must be representative of the com-
munity, but that is a structural mechanism for preventing
bias, not enfranchising it. See, e. g., Ballard v. United
States, 329 U. S. 187, 193 (1946); Thiel v. Southern Pacific
Co., 328 U. S. 217 (1946). "Jury competence is an individual
rather than a group or class matter. That fact lies at the
very heart of the jury system." Id., at 220. Thus, the Con-
stitution guarantees a right only to an impartial jury, not to
a jury composed of members of a particular race or gender.
See Holland v. Illinois, 493 U. S. 474 (1990); Strauder, 100
U. S., at 305.
* * *
For these reasons, I concur in the judgment of the Court
holding that peremptory strikes based on gender violate the
Equal Protection Clause.
Chief Justice Rehnquist, dissenting.
I agree with the dissent of Justice Scalia, which I have
joined. I add these words in support of its conclusion. Ac-
cepting Batson v. Kentucky, 476 U. S. 79 (1986), as correctly
decided, there are sufficient differences between race and
gender discrimination such that the principle of Batson
should not be extended to peremptory challenges to potential
jurors based on sex.
That race and sex discrimination are different is acknowl-
edged by our equal protection jurisprudence, which accords
different levels of protection to the two groups. Classifica-
tions based on race are inherently suspect, triggering "strict
scrutiny," while gender-based classifications are judged
under a heightened, but less searching, standard of review.
Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724
(1982). Racial groups comprise numerical minorities in our
511us1$35H 11-08-97 19:55:03 PAGES OPINPGT
Cite as: 511 U. S. 127 (1994) 155
Rehnquist, C. J., dissenting
society, warranting in some situations a greater need for
protection, whereas the population is divided almost equally
between men and women. Furthermore, while substantial
discrimination against both groups still lingers in our society,
racial equality has proved a more challenging goal to achieve
on many fronts than gender equality. See, e. g., D. Kirp,
M. Yudof, & M. Franks, Gender Justice 137 (1986).
Batson, which involved a black defendant challenging the
removal of black jurors, announced a sea change in the jury
selection process. In balancing the dictates of equal protec-
tion and the historical practice of peremptory challenges,
long recognized as securing fairness in trials, the Court
concluded that the command of the Equal Protection Clause
was superior. But the Court was careful that its rule not
"undermine the contribution the challenge generally makes
to the administration of justice." 476 U. S., at 98Â99. Bat-
son is best understood as a recognition that race lies at the
core of the commands of the Fourteenth Amendment. Not
surprisingly, all of our post-Batson cases have dealt with
the use of peremptory strikes to remove black or racially
identified venirepersons, and all have described Batson as
fashioning a rule aimed at preventing purposeful discrimina-
tion against a cognizable racial group.* As Justice O'Con-
nor once recognized, Batson does not apply "[o]utside the
uniquely sensitive area of race." Brown v. North Carolina,
479 U. S. 940, 942 (1986) (opinion concurring in denial of
certiorari).
Under the Equal Protection Clause, these differences
mean that the balance should tilt in favor of peremptory
challenges when sex, not race, is the issue. Unlike the
*See Georgia v. McCollum, 505 U. S. 42 (1992) (blacks); Hernandez v.
New York, 500 U. S. 352 (1991) (Latinos); Edmonson v. Leesville Concrete
Co., 500 U. S. 614 (1991) (blacks); Powers v. Ohio, 499 U. S. 400, 404Â405
(1991) (blacks); Holland v. Illinois, 493 U. S. 474, 476Â477 (1990) (blacks);
Griffith v. Kentucky, 479 U. S. 314, 316 (1987) (blacks); Allen v. Hardy, 478
U. S. 255, 259 (1986) (blacks and Hispanics).
511us1$35H 11-08-97 19:55:03 PAGES OPINPGT
156 J. E. B. v. ALABAMA ex rel. T. B.
Scalia, J., dissenting
Court, I think the State has shown that jury strikes on the
basis of gender "substantially further" the State's legitimate
interest in achieving a fair and impartial trial through the
venerable practice of peremptory challenges. Swain v. Ala-
bama, 380 U. S. 202, 212Â220 (1965) (tracing the "very old
credentials" of peremptory challenges); Batson, supra, at
118Â120 (Burger, C. J., dissenting); post, at 161Â162 (Scalia,
J., dissenting). The two sexes differ, both biologically and,
to a diminishing extent, in experience. It is not merely
"stereotyping" to say that these differences may produce a
difference in outlook which is brought to the jury room. Ac-
cordingly, use of peremptory challenges on the basis of sex is
generally not the sort of derogatory and invidious act which
peremptory challenges directed at black jurors may be.
Justice O'Connor's concurring opinion recognizes sev-
eral of the costs associated with extending Batson to gender-
based peremptory challenges-lengthier trials, an increase
in the number and complexity of appeals addressing jury se-
lection, and a "diminished . . . ability of litigants to act on
sometimes accurate gender-based assumptions about juror
attitudes." Ante, at 149Â150. These costs are, in my view,
needlessly imposed by the Court's opinion, because the Con-
stitution simply does not require the result that it reaches.
Justice Scalia, with whom The Chief Justice and
Justice Thomas join, dissenting.
Today's opinion is an inspiring demonstration of how thor-
oughly up-to-date and right-thinking we Justices are in mat-
ters pertaining to the sexes (or as the Court would have
it, the genders), and how sternly we disapprove the male
chauvinist attitudes of our predecessors. The price to be
paid for this display-a modest price, surely-is that most of
the opinion is quite irrelevant to the case at hand. The
hasty reader will be surprised to learn, for example, that this
lawsuit involves a complaint about the use of peremptory
challenges to exclude men from a petit jury. To be sure,
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Cite as: 511 U. S. 127 (1994) 157
Scalia, J., dissenting
petitioner, a man, used all but one of his peremptory strikes
to remove women from the jury (he used his last challenge
to strike the sole remaining male from the pool), but the
validity of his strikes is not before us. Nonetheless, the
Court treats itself to an extended discussion of the historic
exclusion of women not only from jury service, but also from
service at the bar (which is rather like jury service, in that
it involves going to the courthouse a lot). See ante, at 131Â
136. All this, as I say, is irrelevant, since the case involves
state action that allegedly discriminates against men. The
parties do not contest that discrimination on the basis of sex 1
is subject to what our cases call "heightened scrutiny," and
the citation of one of those cases (preferably one involving
men rather than women, see, e. g., Mississippi Univ. for
Women v. Hogan, 458 U. S. 718, 723Â724 (1982)) is all that
was needed.
The Court also spends time establishing that the use of
sex as a proxy for particular views or sympathies is unwise
and perhaps irrational. The opinion stresses the lack of sta-
tistical evidence to support the widely held belief that, at
least in certain types of cases, a juror's sex has some statisti-
cally significant predictive value as to how the juror will be-
have. See ante, at 137Â139, and n. 9. This assertion seems
to place the Court in opposition to its earlier Sixth Amend-
ment "fair cross-section" cases. See, e. g., Taylor v. Louisi-
ana, 419 U. S. 522, 532, n. 12 (1975) ("Controlled studies . . .
have concluded that women bring to juries their own per-
spectives and values that influence both jury deliberation
1 Throughout this opinion, I shall refer to the issue as sex discrimination
rather than (as the Court does) gender discrimination. The word "gen-
der" has acquired the new and useful connotation of cultural or attitudinal
characteristics (as opposed to physical characteristics) distinctive to the
sexes. That is to say, gender is to sex as feminine is to female and mascu-
line to male. The present case does not involve peremptory strikes exer-
cised on the basis of femininity or masculinity (as far as it appears, effemi-
nate men did not survive the prosecution's peremptories). The case
involves, therefore, sex discrimination plain and simple.
511us1$35K 11-08-97 19:55:03 PAGES OPINPGT
158 J. E. B. v. ALABAMA ex rel. T. B.
Scalia, J., dissenting
and result"). But times and trends do change, and unisex is
unquestionably in fashion. Personally, I am less inclined to
demand statistics, and more inclined to credit the percep-
tions of experienced litigators who have had money on the
line. But it does not matter. The Court's fervent defense
of the proposition il n'y a pas de diffe´rence entre les hommes
et les femmes (it stereotypes the opposite view as hateful
"stereotyping") turns out to be, like its recounting of the
history of sex discrimination against women, utterly irrele-
vant. Even if sex was a remarkably good predictor in cer-
tain cases, the Court would find its use in peremptories un-
constitutional. See ante, at 139, n. 11; cf. ante, at 148Â149
(O'Connor, J., concurring).
Of course the relationship of sex to partiality would have
been relevant if the Court had demanded in this case what it
ordinarily demands: that the complaining party have suf-
fered some injury. Leaving aside for the moment the real-
ity that the defendant himself had the opportunity to strike
women from the jury, the defendant would have some cause
to complain about the prosecutor's striking male jurors if
male jurors tend to be more favorable toward defendants in
paternity suits. But if men and women jurors are (as the
Court thinks) fungible, then the only arguable injury from
the prosecutor's "impermissible" use of male sex as the basis
for his peremptories is injury to the stricken juror, not to
the defendant. Indeed, far from having suffered harm, peti-
tioner, a state actor under our precedents, see Georgia v.
McCollum, 505 U. S. 42, 50Â51 (1992); cf. Edmonson v. Lees-
ville Concrete Co., 500 U. S. 614, 626Â627 (1991), has himself
actually inflicted harm on female jurors.2 The Court today
2 I continue to agree with Justice O'Connor that McCollum and Ed-
mondson erred in making civil litigants and criminal defendants state
actors for purposes of the Equal Protection Clause. I do not, however,
share her belief that correcting that error while continuing to consider the
exercise of peremptories by prosecutors a denial of equal protection will
make things right. If, in accordance with common perception but con-
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Scalia, J., dissenting
presumably supplies petitioner with a cause of action by
applying the uniquely expansive third-party standing analy-
sis of Powers v. Ohio, 499 U. S. 400, 415 (1991), according
petitioner a remedy because of the wrong done to male ju-
rors. This case illustrates why making restitution to Paul
when it is Peter who has been robbed is such a bad idea.
Not only has petitioner, by implication of the Court's own
reasoning, suffered no harm, but the scientific evidence pre-
sented at trial established petitioner's paternity with 99.92%
accuracy. Insofar as petitioner is concerned, this is a case
of harmless error if there ever was one; a retrial will do
nothing but divert the State's judicial and prosecutorial re-
sources, allowing either petitioner or some other malefactor
to go free.
The core of the Court's reasoning is that peremptory chal-
lenges on the basis of any group characteristic subject to
heightened scrutiny are inconsistent with the guarantee of
the Equal Protection Clause. That conclusion can be
reached only by focusing unrealistically upon individual
exercises of the peremptory challenge, and ignoring the to-
tality of the practice. Since all groups are subject to the
peremptory challenge (and will be made the object of it,
depending upon the nature of the particular case) it is hard
to see how any group is denied equal protection. See id., at
423Â424 (Scalia, J., dissenting); Batson v. Kentucky, 476
U. S. 79, 137Â138 (1986) (Rehnquist, J., dissenting). That
explains why peremptory challenges coexisted with the
Equal Protection Clause for 120 years. This case is a per-
fect example of how the system as a whole is evenhanded.
While the only claim before the Court is petitioner's com-
plaint that the prosecutor struck male jurors, for every man
trary to the Court's unisex creed, women really will decide some cases
differently from men, allowing defendants alone to strike jurors on the
basis of sex will produce-and will be seen to produce-juries intention-
ally weighted in the defendant's favor: no women jurors, for example, in a
rape prosecution. That is not a desirable outcome.
511us1$35K 11-08-97 19:55:03 PAGES OPINPGT
160 J. E. B. v. ALABAMA ex rel. T. B.
Scalia, J., dissenting
struck by the government petitioner's own lawyer struck a
woman. To say that men were singled out for discrimina-
tory treatment in this process is preposterous. The situa-
tion would be different if both sides systematically struck
individuals of one group, so that the strikes evinced group-
based animus and served as a proxy for segregated venire
lists. See Swain v. Alabama, 380 U. S. 202, 223Â224 (1965).
The pattern here, however, displays not a systemic sex-based
animus but each side's desire to get a jury favorably disposed
to its case. That is why the Court's characterization of re-
spondent's argument as "reminiscent of the arguments ad-
vanced to justify the total exclusion of women from juries,"
ante, at 138, is patently false. Women were categorically
excluded from juries because of doubt that they were compe-
tent; women are stricken from juries by peremptory chal-
lenge because of doubt that they are well disposed to the
striking party's case. See Powers, supra, at 424 (Scalia,
J., dissenting). There is discrimination and dishonor in the
former, and not in the latter-which explains the 106-year
interlude between our holding that exclusion from juries on
the basis of race was unconstitutional, Strauder v. West Vir-
ginia, 100 U. S. 303 (1880), and our holding that peremptory
challenges on the basis of race were unconstitutional, Batson
v. Kentucky, supra.
Although the Court's legal reasoning in this case is largely
obscured by anti-male-chauvinist oratory, to the extent such
reasoning is discernible it invalidates much more than sex-
based strikes. After identifying unequal treatment (by sep-
arating individual exercises of peremptory challenge from
the process as a whole), the Court applies the "heightened
scrutiny" mode of equal protection analysis used for sex-
based discrimination, and concludes that the strikes fail
heightened scrutiny because they do not substantially fur-
ther an important government interest. The Court says
that the only important government interest that could be
served by peremptory strikes is "securing a fair and impar-
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Cite as: 511 U. S. 127 (1994) 161
Scalia, J., dissenting
tial jury," ante, at 137, and n. 8.3 It refuses to accept re-
spondent's argument that these strikes further that interest
by eliminating a group (men) which may be partial to male
defendants, because it will not accept any argument based
on " `the very stereotype the law condemns.' " Ante, at 138
(quoting Powers, 499 U. S., at 410). This analysis, entirely
eliminating the only allowable argument, implies that sex-
based strikes do not even rationally further a legitimate gov-
ernment interest, let alone pass heightened scrutiny. That
places all peremptory strikes based on any group character-
istic at risk, since they can all be denominated "stereotypes."
Perhaps, however (though I do not see why it should be so),
only the stereotyping of groups entitled to heightened or
strict scrutiny constitutes "the very stereotype the law con-
demns"-so that other stereotyping (e. g., wide-eyed blondes
and football players are dumb) remains OK. Or perhaps
when the Court refers to "impermissible stereotypes," ante,
at 139, n. 11, it means the adjective to be limiting rather than
descriptive-so that we can expect to learn from the Court's
peremptory/stereotyping jurisprudence in the future which
stereotypes the Constitution frowns upon and which it does
not.
Even if the line of our later cases guaranteed by today's
decision limits the theoretically boundless Batson principle
to race, sex, and perhaps other classifications subject to
heightened scrutiny (which presumably would include reli-
gious belief, see Larson v. Valente, 456 U. S. 228, 244Â246
(1982)), much damage has been done. It has been done, first
and foremost, to the peremptory challenge system, which
3 It does not seem to me that even this premise is correct. Wise observ-
ers have long understood that the appearance of justice is as important as
its reality. If the system of peremptory strikes affects the actual impar-
tiality of the jury not a bit, but gives litigants a greater belief in that
impartiality, it serves a most important function. See, e. g., 4 W. Black-
stone, Commentaries *353. In point of fact, that may well be its greater
value.
511us1$35K 11-08-97 19:55:03 PAGES OPINPGT
162 J. E. B. v. ALABAMA ex rel. T. B.
Scalia, J., dissenting
loses its whole character when (in order to defend against
"impermissible stereotyping" claims) "reasons" for strikes
must be given. The right of peremptory challenge " `is, as
Blackstone says, an arbitrary and capricious right; and it
must be exercised with full freedom, or it fails of its full
purpose.' " Lewis v. United States, 146 U. S. 370, 378 (1892),
quoting Lamb v. State, 36 Wis. 424, 427 (1874). See also
Lewis, supra, at 376; United States v. Marchant, 12 Wheat.
480, 482 (1827) (Story, J.); 4 W. Blackstone, Commentaries
*353. The loss of the real peremptory will be felt most
keenly by the criminal defendant, see Georgia v. McCollum,
505 U. S. 42 (1992), whom we have until recently thought
"should not be held to accept a juror, apparently indiffer-
ent, whom he distrusted for any reason or for no reason."
Lamb, supra, at 426. And make no mistake about it: there
really is no substitute for the peremptory. Voir dire (though
it can be expected to expand as a consequence of today's
decision) cannot fill the gap. The biases that go along with
group characteristics tend to be biases that the juror him-
self does not perceive, so that it is no use asking about them.
It is fruitless to inquire of a male juror whether he harbors
any subliminal prejudice in favor of unwed fathers.
And damage has been done, secondarily, to the entire jus-
tice system, which will bear the burden of the expanded
quest for "reasoned peremptories" that the Court demands.
The extension of Batson to sex, and almost certainly beyond,
cf. Batson, 476 U. S., at 124 (Burger, C. J., dissenting), will
provide the basis for extensive collateral litigation, which es-
pecially the criminal defendant (who litigates full time and
cost free) can be expected to pursue. While demographic
reality places some limit on the number of cases in which
race-based challenges will be an issue, every case contains a
potential sex-based claim. Another consequence, as I have
mentioned, is a lengthening of the voir dire process that
already burdens trial courts.
511us1$35K 11-08-97 19:55:03 PAGES OPINPGT
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Scalia, J., dissenting
The irrationality of today's strike-by-strike approach to
equal protection is evident from the consequences of ex-
tending it to its logical conclusion. If a fair and impartial
trial is a prosecutor's only legitimate goal; if adversarial trial
stratagems must be tested against that goal in abstraction
from their role within the system as a whole; and if, so tes-
ted, sex-based stratagems do not survive heightened scru-
tiny-then the prosecutor presumably violates the Constitu-
tion when he selects a male or female police officer to testify
because he believes one or the other sex might be more con-
vincing in the context of the particular case, or because he
believes one or the other might be more appealing to a pre-
dominantly male or female jury. A decision to stress one
line of argument or present certain witnesses before a
mostly female jury-for example, to stress that the defend-
ant victimized women-becomes, under the Court's reason-
ing, intentional discrimination by a state actor on the basis
of gender.
* * *
In order, it seems to me, not to eliminate any real denial
of equal protection, but simply to pay conspicuous obeisance
to the equality of the sexes, the Court imperils a practice
that has been considered an essential part of fair jury trial
since the dawn of the common law. The Constitution of the
United States neither requires nor permits this vandalizing
of our people's traditions.
For these reasons, I dissent.
511us1$36z 11-08-97 19:56:23 PAGES OPINPGT
164 OCTOBER TERM, 1993
Syllabus
CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.,
et al.
certiorari to the united states court of appeals for
the tenth circuit
No. 92Â854. Argued November 30, 1993-Decided April 19, 1994
As this Court has interpreted it, § 10(b) of the Securities Exchange Act of
1934 imposes private civil liability on those who commit a manipulative
or deceptive act in connection with the purchase or sale of securities.
Following a public building authority's default on certain bonds secured
by landowner assessment liens, respondents, as purchasers of the bonds,
filed suit against the authority, the bonds' underwriters, the developer
of the land in question, and petitioner bank, as the indenture trustee for
the bond issues. Respondents alleged that the first three defendants
had violated § 10(b) in connection with the sale of the bonds, and that
petitioner was "secondarily liable under § 10(b) for its conduct in aiding
and abetting the [other defendants'] fraud." The District Court
granted summary judgment to petitioner, but the Court of Appeals re-
versed in light of Circuit precedent allowing private aiding and abetting
actions under § 10(b).
Held: A private plaintiff may not maintain an aiding and abetting suit
under § 10(b). Pp. 170Â192.
(a) This case is resolved by the statutory text, which governs what
conduct is covered by § 10(b). See, e. g., Ernst & Ernst v. Hochfelder,
425 U. S. 185, 197, 199. That text-which makes it "unlawful for any
person, directly or indirectly, . . . [t]o use or employ, in connection with
the purchase or sale of any security . . . , any manipulative or deceptive
device or contrivance"-prohibits only the making of a material mis-
statement (or omission) or the commission of a manipulative act, and
does not reach those who aid and abet a violation. The "directly or
indirectly" phrase does not cover aiding and abetting, since liability for
aiding and abetting would extend beyond persons who engage, even
indirectly, in a proscribed activity to include those who merely give
some degree of aid to violators, and since the "directly or indirectly"
language is used in numerous 1934 Act provisions in a way that does
not impose aiding and abetting liability. Pp. 170Â178.
(b) Even if the § 10(b) text did not answer the question at issue, the
same result would be reached by inferring how the 1934 Congress would
have addressed the question had it expressly included a § 10(b) private
511us1$36z 11-08-97 19:56:23 PAGES OPINPGT
Cite as: 511 U. S. 164 (1994) 165
Syllabus
right of action in the 1934 Act. See Musick, Peeler & Garrett v. Em-
ployers Ins. of Wausau, 508 U. S. 286, 294. None of the express private
causes of action in the federal securities laws imposes liability on aiders
and abettors. It thus can be inferred that Congress likely would not
have attached such liability to a private § 10(b) cause of action. See id.,
at 297. Pp. 178Â180.
(c) Contrary to respondents' contention, the statutory silence cannot
be interpreted as tantamount to an explicit congressional intent to im-
pose § 10(b) aiding and abetting liability. Congress has not enacted a
general civil aiding and abetting tort liability statute, but has instead
taken a statute-by-statute approach to such liability. Nor did it provide
for aiding and abetting liability in any of the private causes of action in
the 1933 and 1934 securities Acts, but mandated it only in provisions
enforceable in actions brought by the Securities and Exchange Commis-
sion (SEC). Pp. 180Â185.
(d) The parties' competing arguments based on other post-1934
legislative developments-respondents' contentions that congressional
acquiescence in their position is demonstrated by 1983 and 1988
Committee Reports making oblique references to § 10(b) aiding and
abetting liability and by Congress' failure to enact a provision denying
such liability after the lower courts began interpreting § 10(b) to include
it, and petitioner's assertion that Congress' failure to pass 1957, 1958,
and 1960 bills expressly creating such liability reveals an intent not to
cover it-deserve little weight in the interpretive process, would not
point to a definitive answer in any event, and are therefore rejected.
Pp. 185Â188.
(e) The SEC's various policy arguments in support of the aiding and
abetting cause of action-e. g., that the cause of action deters secondary
actors from contributing to fraudulent activities and ensures that de-
frauded plaintiffs are made whole-cannot override the Court's inter-
pretation of the Act's text and structure because such arguments do
not show that adherence to the text and structure would lead to a result
so bizarre that Congress could not have intended it. Demarest v.
Manspeaker, 498 U. S. 184, 191. It is far from clear that Congress in
1934 would have decided that the statutory purposes of fair dealing and
efficiency in the securities markets would be furthered by the imposition
of private aider and abettor liability, in light of the uncertainty and
unpredictability of the rules for determining such liability, the potential
for excessive litigation arising therefrom, and the resulting difficulties
and costs that would be experienced by client companies and investors.
Pp. 188Â190.
(f) The Court rejects the suggestion that a private civil § 10(b) aiding
and abetting cause of action may be based on 18 U. S. C. § 2, a general
511us1$36z 11-08-97 19:56:23 PAGES OPINPGT
166 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
aiding and abetting statute applicable to all federal criminal offenses.
The logical consequence of the SEC's approach would be the implication
of a civil damages cause of action for every criminal statute passed for
the benefit of some particular class of persons. That would work a
significant and unacceptable shift in settled interpretive principles.
Pp. 190Â191.
969 F. 2d 891, reversed.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Stevens, J., filed
a dissenting opinion, in which Blackmun, Souter, and Ginsburg, JJ.,
joined, post, p. 192.
Tucker K. Trautman argued the cause for petitioner.
With him on the briefs was Van Aaron Hughes.
Miles M. Gersh argued the cause for respondents. With
him on the brief was James S. Helfrich.
Edwin S. Kneedler argued the cause for the Securities and
Exchange Commission as amicus curiae urging affirmance.
With him on the brief were Solicitor General Days, Paul
Gonson, Jacob H. Stillman, and Brian D. Bellardo.*
Justice Kennedy delivered the opinion of the Court.
As we have interpreted it, § 10(b) of the Securities Ex-
change Act of 1934 imposes private civil liability on those
who commit a manipulative or deceptive act in connection
with the purchase or sale of securities. In this case, we
*Theodore B. Olson, Theodore J. Boutrous, Jr., and William J. Fitz-
patrick filed a brief for the Securities Industry Association as amicus
curiae urging reversal.
Briefs of amicus curiae urging affirmance were filed for the Association
of the Bar of the City of New York by Harvey J. Goldschmid, John D.
Feerick, Sheldon H. Elsen, and Jill E. Fisch; and for the Trial Lawyers for
Public Justice, P. C., et al. by Priscilla R. Budeiri and Arthur H. Bryant.
Briefs of amici curiae were filed for the American Institute of Certified
Public Accountants by Louis A. Craco, Richard I. Miller, and David P.
Murray; and for the National Association of Securities and Commercial
Law Attorneys by William S. Lerach, Leonard B. Simon, Kevin P. Roddy,
and Paul F. Bennett.
511us1$36L 11-08-97 19:56:23 PAGES OPINPGT
Cite as: 511 U. S. 164 (1994) 167
Opinion of the Court
must answer a question reserved in two earlier decisions:
whether private civil liability under § 10(b) extends as well
to those who do not engage in the manipulative or deceptive
practice, but who aid and abet the violation. See Herman &
MacLean v. Huddleston, 459 U. S. 375, 379, n. 5 (1983);
Ernst & Ernst v. Hochfelder, 425 U. S. 185, 191Â192, n. 7
(1976).
I
In 1986 and 1988, the Colorado Springs-Stetson Hills Pub-
lic Building Authority (Authority) issued a total of $26 mil-
lion in bonds to finance public improvements at Stetson Hills,
a planned residential and commercial development in Colo-
rado Springs. Petitioner Central Bank of Denver served as
indenture trustee for the bond issues.
The bonds were secured by landowner assessment liens,
which covered about 250 acres for the 1986 bond issue and
about 272 acres for the 1988 bond issue. The bond cove-
nants required that the land subject to the liens be worth at
least 160% of the bonds' outstanding principal and interest.
The covenants required AmWest Development, the devel-
oper of Stetson Hills, to give Central Bank an annual report
containing evidence that the 160% test was met.
In January 1988, AmWest provided Central Bank with an
updated appraisal of the land securing the 1986 bonds and of
the land proposed to secure the 1988 bonds. The 1988 ap-
praisal showed land values almost unchanged from the 1986
appraisal. Soon afterwards, Central Bank received a letter
from the senior underwriter for the 1986 bonds. Noting
that property values were declining in Colorado Springs and
that Central Bank was operating on an appraisal over 16
months old, the underwriter expressed concern that the
160% test was not being met.
Central Bank asked its in-house appraiser to review the
updated 1988 appraisal. The in-house appraiser decided
that the values listed in the appraisal appeared optimistic
considering the local real estate market. He suggested that
511us1$36L 11-08-97 19:56:23 PAGES OPINPGT
168 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
Central Bank retain an outside appraiser to conduct an inde-
pendent review of the 1988 appraisal. After an exchange of
letters between Central Bank and AmWest in early 1988,
Central Bank agreed to delay independent review of the ap-
praisal until the end of the year, six months after the June
1988 closing on the bond issue. Before the independent re-
view was complete, however, the Authority defaulted on the
1988 bonds.
Respondents First Interstate Bank of Denver and Jack K.
Naber had purchased $2.1 million of the 1988 bonds. After
the default, respondents sued the Authority, the 1988 under-
writer, a junior underwriter, an AmWest director, and Cen-
tral Bank for violations of § 10(b) of the Securities Exchange
Act of 1934. The complaint alleged that the Authority, the
underwriter defendants, and the AmWest director had vio-
lated § 10(b). The complaint also alleged that Central Bank
was "secondarily liable under § 10(b) for its conduct in aiding
and abetting the fraud." App. 26.
The United States District Court for the District of Colo-
rado granted summary judgment to Central Bank. The
United States Court of Appeals for the Tenth Circuit re-
versed. First Interstate Bank of Denver, N. A. v. Pring,
969 F. 2d 891 (1992).
The Court of Appeals first set forth the elements of the
§ 10(b) aiding and abetting cause of action in the Tenth Cir-
cuit: (1) a primary violation of § 10(b); (2) recklessness by the
aider and abettor as to the existence of the primary violation;
and (3) substantial assistance given to the primary violator
by the aider and abettor. Id., at 898Â903.
Applying that standard, the Court of Appeals found that
Central Bank was aware of concerns about the accuracy of
the 1988 appraisal. Central Bank knew both that the sale
of the 1988 bonds was imminent and that purchasers were
using the 1988 appraisal to evaluate the collateral for the
bonds. Under those circumstances, the court said, Central
Bank's awareness of the alleged inadequacies of the updated,
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Cite as: 511 U. S. 164 (1994) 169
Opinion of the Court
but almost unchanged, 1988 appraisal could support a finding
of extreme departure from standards of ordinary care. The
court thus found that respondents had established a genuine
issue of material fact regarding the recklessness element of
aiding and abetting liability. Id., at 904. On the separate
question whether Central Bank rendered substantial assist-
ance to the primary violators, the Court of Appeals found
that a reasonable trier of fact could conclude that Central
Bank had rendered substantial assistance by delaying the
independent review of the appraisal. Ibid.
Like the Court of Appeals in this case, other federal courts
have allowed private aiding and abetting actions under
§ 10(b). The first and leading case to impose the liability
was Brennan v. Midwestern United Life Ins. Co., 259 F.
Supp. 673 (ND Ind. 1966), aff'd, 417 F. 2d 147 (CA7 1969),
cert. denied, 397 U. S. 989 (1970). The court reasoned that
"[i]n the absence of a clear legislative expression to the con-
trary, the statute must be flexibly applied so as to implement
its policies and purposes." 259 F. Supp., at 680Â681. Since
1966, numerous courts have taken the same position. See,
e. g., Cleary v. Perfectune, Inc., 700 F. 2d 774, 777 (CA1 1983);
Kerbs v. Fall River Industries, Inc., 502 F. 2d 731, 740
(CA10 1974).
After our decisions in Santa Fe Industries, Inc. v. Green,
430 U. S. 462 (1977), and Ernst & Ernst v. Hochfelder, 425
U. S. 185 (1976), where we paid close attention to the statu-
tory text in defining the scope of conduct prohibited by
§ 10(b), courts and commentators began to question whether
aiding and abetting liability under § 10(b) was still available.
Professor Fischel opined that the "theory of secondary liabil-
ity [under § 10(b) was] no longer viable in light of recent Su-
preme Court decisions strictly interpreting the federal secu-
rities laws." Secondary Liability Under Section 10(b) of the
Securities Act of 1934, 69 Calif. L. Rev. 80, 82 (1981). In
1981, the District Court for the Eastern District of Michigan
found it "doubtful that a claim for `aiding and abetting' . . .
511us1$36L 11-08-97 19:56:23 PAGES OPINPGT
170 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
will continue to exist under 10(b)." Benoay v. Decker, 517
F. Supp. 490, 495, aff'd, 735 F. 2d 1363 (CA6 1984). The same
year, the Ninth Circuit stated that the "status of aiding and
abetting as a basis for liability under the securities laws
[was] in some doubt." Little v. Valley National Bank of
Arizona, 650 F. 2d 218, 220, n. 3. The Ninth Circuit later
noted that "[a]iding and abetting and other `add-on' theories
of liability have been justified by reference to the broad pol-
icy objectives of the securities acts. . . . The Supreme Court
has rejected this justification for an expansive reading of the
statutes and instead prescribed a strict statutory construc-
tion approach to determining liability under the acts." SEC
v. Seaboard Corp., 677 F. 2d 1301, 1311, n. 12 (1982). The
Fifth Circuit has stated: "[I]t is now apparent that open-
ended readings of the duty stated by Rule 10bÂ5 threaten
to rearrange the congressional scheme. The added layer of
liability . . . for aiding and abetting . . . is particularly prob-
lematic. . . . There is a powerful argument that . . . aider and
abettor liability should not be enforceable by private parties
pursuing an implied right of action." Akin v. QÂL Invest-
ments, Inc., 959 F. 2d 521, 525 (1992). Indeed, the Seventh
Circuit has held that the defendant must have committed a
manipulative or deceptive act to be liable under § 10(b), a
requirement that in effect forecloses liability on those who
do no more than aid or abet a 10bÂ5 violation. See, e. g.,
Barker v. Henderson, Franklin, Starnes & Holt, 797 F. 2d
490, 495 (1986).
We granted certiorari to resolve the continuing confusion
over the existence and scope of the § 10(b) aiding and abet-
ting action. 508 U. S. 959 (1993).
II
In the wake of the 1929 stock market crash and in response
to reports of widespread abuses in the securities industry,
the 73d Congress enacted two landmark pieces of securities
legislation: the Securities Act of 1933 (1933 Act) and the
511us1$36L 11-08-97 19:56:23 PAGES OPINPGT
Cite as: 511 U. S. 164 (1994) 171
Opinion of the Court
Securities Exchange Act of 1934 (1934 Act). 48 Stat. 74, as
amended, 15 U. S. C. § 77a et seq. (1988 ed. and Supp. IV); 48
Stat. 881, as amended, 15 U. S. C. § 78a et seq. (1988 ed. and
Supp. IV). The 1933 Act regulates initial distributions of
securities, and the 1934 Act for the most part regulates post-
distribution trading. Blue Chip Stamps v. Manor Drug
Stores, 421 U. S. 723, 752 (1975). Together, the Acts "em-
brace a fundamental purpose . . . to substitute a philosophy
of full disclosure for the philosophy of caveat emptor."
Affiliated Ute Citizens of Utah v. United States, 406 U. S.
128, 151 (1972) (internal quotation marks omitted).
The 1933 and 1934 Acts create an extensive scheme of civil
liability. The Securities and Exchange Commission (SEC)
may bring administrative actions and injunctive proceedings
to enforce a variety of statutory prohibitions. Private plain-
tiffs may sue under the express private rights of action con-
tained in the Acts. They may also sue under private rights
of action we have found to be implied by the terms of §§ 10(b)
and 14(a) of the 1934 Act. Superintendent of Ins. of N. Y.
v. Bankers Life & Casualty Co., 404 U. S. 6, 13, n. 9 (1971)
(§ 10(b)); J. I. Case Co. v. Borak, 377 U. S. 426, 430Â435 (1964)
(§ 14(a)). This case concerns the most familiar private cause
of action: the one we have found to be implied by § 10(b), the
general antifraud provision of the 1934 Act. Section 10(b)
states:
"It shall be unlawful for any person, directly or indi-
rectly, by the use of any means or instrumentality of
interstate commerce or of the mails, or of any facility of
any national securities exchange-
. . . . .
"(b) To use or employ, in connection with the purchase
or sale of any security registered on a national securities
exchange or any security not so registered, any manipu-
lative or deceptive device or contrivance in contraven-
tion of such rules and regulations as the [SEC] may pre-
scribe." 15 U. S. C. § 78j.
511us1$36L 11-08-97 19:56:23 PAGES OPINPGT
172 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
Rule 10bÂ5, adopted by the SEC in 1942, casts the proscrip-
tion in similar terms:
"It shall be unlawful for any person, directly or indi-
rectly, by the use of any means or instrumentality of
interstate commerce, or of the mails or of any facility of
any national securities exchange,
"(a) To employ any device, scheme, or artifice to
defraud,
"(b) To make any untrue statement of a material fact
or to omit to state a material fact necessary in order to
make the statements made, in the light of the circum-
stances under which they were made, not misleading, or
"(c) To engage in any act, practice, or course of busi-
ness which operates or would operate as a fraud or de-
ceit upon any person,
"in connection with the purchase or sale of any secu-
rity." 17 CFR § 240.10bÂ5 (1993).
In our cases addressing § 10(b) and Rule 10bÂ5, we have
confronted two main issues. First, we have determined the
scope of conduct prohibited by § 10(b). See, e. g., Dirks v.
SEC, 463 U. S. 646 (1983); Aaron v. SEC, 446 U. S. 680 (1980);
Chiarella v. United States, 445 U. S. 222 (1980); Santa Fe
Industries, Inc. v. Green, 430 U. S. 462 (1977); Ernst & Ernst
v. Hochfelder, 425 U. S. 185 (1976). Second, in cases where
the defendant has committed a violation of § 10(b), we have
decided questions about the elements of the 10bÂ5 private
liability scheme: for example, whether there is a right to con-
tribution, what the statute of limitations is, whether there is
a reliance requirement, and whether there is an in pari de-
licto defense. See Musick, Peeler & Garrett v. Employers
Ins. of Wausau, 508 U. S. 286 (1993); Lampf, Pleva, Lipkind,
Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991); Basic
Inc. v. Levinson, 485 U. S. 224 (1988); Bateman Eichler, Hill
Richards, Inc. v. Berner, 472 U. S. 299 (1985); see also Blue
Chip Stamps, supra; Schlick v. Penn-Dixie Cement Corp.,
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Opinion of the Court
507 F. 2d 374 (CA2 1974); cf. Virginia Bankshares, Inc. v.
Sandberg, 501 U. S. 1083 (1991) (§ 14); Schreiber v. Burling-
ton Northern, Inc., 472 U. S. 1 (1985) (same).
The latter issue, determining the elements of the 10bÂ5
private liability scheme, has posed difficulty because Con-
gress did not create a private § 10(b) cause of action and had
no occasion to provide guidance about the elements of a pri-
vate liability scheme. We thus have had "to infer how the
1934 Congress would have addressed the issue[s] had the
10bÂ5 action been included as an express provision in the
1934 Act." Musick, Peeler, supra, at 294.
With respect, however, to the first issue, the scope of con-
duct prohibited by § 10(b), the text of the statute controls
our decision. In § 10(b), Congress prohibited manipulative
or deceptive acts in connection with the purchase or sale of
securities. It envisioned that the SEC would enforce the
statutory prohibition through administrative and injunctive
actions. Of course, a private plaintiff now may bring suit
against violators of § 10(b). But the private plaintiff may
not bring a 10bÂ5 suit against a defendant for acts not pro-
hibited by the text of § 10(b). To the contrary, our cases
considering the scope of conduct prohibited by § 10(b) in
private suits have emphasized adherence to the statutory
language, " `[t]he starting point in every case involving con-
struction of a statute.' " Ernst & Ernst, supra, at 197 (quot-
ing Blue Chip Stamps, 421 U. S., at 756 (Powell, J., concur-
ring)); see Chiarella, supra, at 226; Santa Fe Industries,
supra, at 472. We have refused to allow 10bÂ5 challenges
to conduct not prohibited by the text of the statute.
In Ernst & Ernst, we considered whether negligent acts
could violate § 10(b). We first noted that "[t]he words `ma-
nipulative or deceptive' used in conjunction with `device or
contrivance' strongly suggest that § 10(b) was intended to
proscribe knowing or intentional misconduct." 425 U. S., at
197. The SEC argued that the broad congressional pur-
poses behind the Act-to protect investors from false and
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174 CENTRAL BANK OF DENVER, N. A. v. FIRST
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Opinion of the Court
misleading practices that might injure them-suggested that
§ 10(b) should also reach negligent conduct. Id., at 198. We
rejected that argument, concluding that the SEC's interpre-
tation would "add a gloss to the operative language of the
statute quite different from its commonly accepted mean-
ing." Id., at 199.
In Santa Fe Industries, another case involving "the reach
and coverage of § 10(b)," 430 U. S., at 464, we considered
whether § 10(b) "reached breaches of fiduciary duty by a ma-
jority against minority shareholders without any charge of
misrepresentation or lack of disclosure." Id., at 470 (inter-
nal quotation marks omitted). We held that it did not, reaf-
firming our decision in Ernst & Ernst and emphasizing that
the "language of § 10(b) gives no indication that Congress
meant to prohibit any conduct not involving manipulation or
deception." 430 U. S., at 473.
Later, in Chiarella, we considered whether § 10(b) is vio-
lated when a person trades securities without disclosing in-
side information. We held that § 10(b) is not violated under
those circumstances unless the trader has an independent
duty of disclosure. In reaching our conclusion, we noted
that "not every instance of financial unfairness constitutes
fraudulent activity under § 10(b)." 445 U. S., at 232. We
stated that "the 1934 Act cannot be read more broadly than
its language and the statutory scheme reasonably permit,"
and we found "no basis for applying . . . a new and different
theory of liability" in that case. Id., at 234 (internal quota-
tion marks omitted). "Section 10(b) is aptly described as a
catchall provision, but what it catches must be fraud. When
an allegation of fraud is based upon nondisclosure, there can
be no fraud absent a duty to speak." Id., at 234Â235.
Adherence to the text in defining the conduct covered by
§ 10(b) is consistent with our decisions interpreting other
provisions of the securities Acts. In Pinter v. Dahl, 486
U. S. 622 (1988), for example, we interpreted the word
"seller" in § 12(1) of the 1933 Act by "look[ing] first at the
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Opinion of the Court
language of § 12(1)." Id., at 641. Ruling that a seller is one
who solicits securities sales for financial gain, we rejected
the broader contention, "grounded in tort doctrine," that
persons who participate in the sale can also be deemed sell-
ers. Id., at 649. We found "no support in the statutory lan-
guage or legislative history for expansion of § 12(1)," id., at
650, and stated that "[t]he ascertainment of congressional
intent with respect to the scope of liability created by a par-
ticular section of the Securities Act must rest primarily on
the language of that section." Id., at 653.
Last Term, the Court faced a similar issue, albeit outside the
securities context, in a case raising the question whether
knowing participation in a breach of fiduciary duty is action-
able under the Employee Retirement Income Security Act of
1974 (ERISA). Mertens v. Hewitt Associates, 508 U. S. 248
(1993). The petitioner in Mertens said that the knowing par-
ticipation cause of action had been available in the common law
of trusts and should be available under ERISA. We rejected
that argument and noted that no provision in ERISA "explic-
itly require[d] [nonfiduciaries] to avoid participation (knowing
or unknowing) in a fiduciary's breach of fiduciary duty." Id.,
at 254. While plaintiffs had a remedy against nonfiduciaries
at common law, that was because "nonfiduciaries had a duty to
the beneficiaries not to assist in the fiduciary's breach." Id.,
at 255, n. 5. No comparable duty was set forth in ERISA.
Our consideration of statutory duties, especially in cases
interpreting § 10(b), establishes that the statutory text con-
trols the definition of conduct covered by § 10(b). That
bodes ill for respondents, for "the language of Section 10(b)
does not in terms mention aiding and abetting." Brief for
SEC as Amicus Curiae 8 (hereinafter Brief for SEC). To
overcome this problem, respondents and the SEC suggest
(or hint at) the novel argument that the use of the phrase
"directly or indirectly" in the text of § 10(b) covers aiding
and abetting. See Brief for Respondents 15 ("Inclusion of
those who act `indirectly' suggests a legislative purpose fully
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176 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
consistent with the prohibition of aiding and abetting");
Brief for SEC 8 ("[W]e think that when read in context
[§ 10(b)] is broad enough to encompass liability for such `indi-
rect' violations").
The federal courts have not relied on the "directly or indi-
rectly" language when imposing aiding and abetting liability
under § 10(b), and with good reason. There is a basic flaw
with this interpretation. According to respondents and the
SEC, the "directly or indirectly" language shows that "Con-
gress . . . intended to reach all persons who engage, even if
only indirectly, in proscribed activities connected with secu-
rities transactions." Ibid. The problem, of course, is that
aiding and abetting liability extends beyond persons who en-
gage, even indirectly, in a proscribed activity; aiding and
abetting liability reaches persons who do not engage in the
proscribed activities at all, but who give a degree of aid to
those who do. A further problem with respondents' inter-
pretation of the "directly or indirectly" language is posed by
the numerous provisions of the 1934 Act that use the term
in a way that does not impose aiding and abetting liability.
See § 7(f)(2)(C), 15 U. S. C. § 78g(f)(2)(C) (direct or indirect
ownership of stock); § 9(b)(2)Â(3), 15 U. S. C. § 78i(b)(2)Â(3)
(direct or indirect interest in put, call, straddle, option, or
privilege); § 13(d)(1), 15 U. S. C. § 78m(d)(1) (direct or indirect
ownership); § 16(a), 15 U. S. C. § 78p(a) (direct or indirect
ownership); § 20, 15 U. S. C. § 78t (direct or indirect control
of person violating Act). In short, respondents' interpreta-
tion of the "directly or indirectly" language fails to support
their suggestion that the text of § 10(b) itself prohibits aiding
and abetting. See 5B A. Jacobs, Litigation and Practice
Under Rule 10bÂ5 § 40.07, p. 2Â465 (rev. 1993).
Congress knew how to impose aiding and abetting liability
when it chose to do so. See, e. g., Act of Mar. 4, 1909, § 332,
35 Stat. 1152, as amended, 18 U. S. C. § 2 (general criminal
aiding and abetting statute); Packers and Stockyards Act,
1921, ch. 64, § 202, 42 Stat. 161, as amended, 7 U. S. C. § 192(g)
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Opinion of the Court
(1988 ed. and Supp. IV) (civil aiding and abetting provision);
see generally infra, at 181Â185. If, as respondents seem to
say, Congress intended to impose aiding and abetting liabil-
ity, we presume it would have used the words "aid" and
"abet" in the statutory text. But it did not. Cf. Pinter v.
Dahl, 486 U. S., at 650 ("When Congress wished to create
such liability, it had little trouble doing so"); Blue Chip
Stamps, 421 U. S., at 734 ("When Congress wished to provide
a remedy to those who neither purchase nor sell securities,
it had little trouble in doing so expressly").
We reach the uncontroversial conclusion, accepted even by
those courts recognizing a § 10(b) aiding and abetting cause
of action, that the text of the 1934 Act does not itself reach
those who aid and abet a § 10(b) violation. Unlike those
courts, however, we think that conclusion resolves the case.
It is inconsistent with settled methodology in § 10(b) cases to
extend liability beyond the scope of conduct prohibited by
the statutory text. To be sure, aiding and abetting a wrong-
doer ought to be actionable in certain instances. Cf. Re-
statement (Second) of Torts § 876(b) (1977). The issue, how-
ever, is not whether imposing private civil liability on aiders
and abettors is good policy but whether aiding and abetting
is covered by the statute.
As in earlier cases considering conduct prohibited by
§ 10(b), we again conclude that the statute prohibits only the
making of a material misstatement (or omission) or the com-
mission of a manipulative act. See Santa Fe Industries, 430
U. S., at 473 ("language of § 10(b) gives no indication that
Congress meant to prohibit any conduct not involving manip-
ulation or deception"); Ernst & Ernst, 425 U. S., at 214
("When a statute speaks so specifically in terms of manipula-
tion and deception . . . , we are quite unwilling to extend
the scope of the statute"). The proscription does not include
giving aid to a person who commits a manipulative or decep-
tive act. We cannot amend the statute to create liability for
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178 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
acts that are not themselves manipulative or deceptive
within the meaning of the statute.
III
Because this case concerns the conduct prohibited by
§ 10(b), the statute itself resolves the case, but even if it did
not, we would reach the same result. When the text of
§ 10(b) does not resolve a particular issue, we attempt to
infer "how the 1934 Congress would have addressed the
issue had the 10bÂ5 action been included as an express provi-
sion in the 1934 Act." Musick, Peeler, 508 U. S., at 294.
For that inquiry, we use the express causes of action in the
securities Acts as the primary model for the § 10(b) action.
The reason is evident: Had the 73d Congress enacted a pri-
vate § 10(b) right of action, it likely would have designed it
in a manner similar to the other private rights of action in
the securities Acts. See id., at 294Â297.
In Musick, Peeler, for example, we recognized a right to
contribution under § 10(b). We held that the express rights
of contribution contained in §§ 9 and 18 of the Acts were
"important . . . feature[s] of the federal securities laws and
that consistency require[d] us to adopt a like contribution
rule for the right of action existing under Rule 10bÂ5." Id.,
at 297. In Basic Inc. v. Levinson, 485 U. S., at 243, we de-
cided that a plaintiff in a 10bÂ5 action must prove that he
relied on the defendant's misrepresentation in order to re-
cover damages. In so holding, we stated that the "anal-
ogous express right of action"-§ 18(a) of the 1934 Act-
"includes a reliance requirement." Ibid. And in Blue Chip
Stamps, we held that a 10bÂ5 plaintiff must have purchased
or sold the security to recover damages for the defendant's
misrepresentation. We said that "[t]he principal express
nonderivative private civil remedies, created by Congress
contemporaneously with the passage of § 10(b), . . . are
by their terms expressly limited to purchasers or sellers of
securities." 421 U. S., at 735Â736.
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Opinion of the Court
Following that analysis here, we look to the express pri-
vate causes of action in the 1933 and 1934 Acts. See, e. g.,
Musick, Peeler, supra, at 295Â297; Blue Chip Stamps, supra,
at 735Â736. In the 1933 Act, § 11 prohibits false statements
or omissions of material fact in registration statements; it
identifies the various categories of defendants subject to
liability for a violation, but that list does not include aiders
and abettors. 15 U. S. C. § 77k. Section 12 prohibits the
sale of unregistered, nonexempt securities as well as the sale
of securities by means of a material misstatement or omis-
sion; and it limits liability to those who offer or sell the secu-
rity. 15 U. S. C. § 77l. In the 1934 Act, § 9 prohibits any
person from engaging in manipulative practices such as wash
sales, matched orders, and the like. 15 U. S. C. § 78i. Sec-
tion 16 regulates short-swing trading by owners, directors,
and officers. 15 U. S. C. § 78p. Section 18 prohibits any
person from making misleading statements in reports filed
with the SEC. 15 U. S. C. § 78r. And § 20A, added in 1988,
prohibits any person from engaging in insider trading. 15
U. S. C. § 78tÂ1.
This survey of the express causes of action in the securi-
ties Acts reveals that each (like § 10(b)) specifies the conduct
for which defendants may be held liable. Some of the ex-
press causes of action specify categories of defendants who
may be liable; others (like § 10(b)) state only that "any per-
son" who commits one of the prohibited acts may be held
liable. The important point for present purposes, however,
is that none of the express causes of action in the 1934 Act
further imposes liability on one who aids or abets a violation.
Cf. 7 U. S. C. § 25(a)(1) (1988 ed. and Supp. IV) (Commodity
Exchange Act's private civil aiding and abetting provision).
From the fact that Congress did not attach private aiding
and abetting liability to any of the express causes of action
in the securities Acts, we can infer that Congress likely
would not have attached aiding and abetting liability to
§ 10(b) had it provided a private § 10(b) cause of action. See
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180 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
Musick, Peeler, supra, at 297 ("[C]onsistency requires us to
adopt a like contribution rule for the right of action existing
under Rule 10bÂ5"). There is no reason to think that Con-
gress would have attached aiding and abetting liability only
to § 10(b) and not to any of the express private rights of
action in the Act. In Blue Chip Stamps, we noted that it
would be "anomalous to impute to Congress an intention to
expand the plaintiff class for a judicially implied cause of
action beyond the bounds it delineated for comparable ex-
press causes of action." 421 U. S., at 736. Here, it would
be just as anomalous to impute to Congress an intention in
effect to expand the defendant class for 10bÂ5 actions beyond
the bounds delineated for comparable express causes of
action.
Our reasoning is confirmed by the fact that respondents'
argument would impose 10bÂ5 aiding and abetting liability
when at least one element critical for recovery under 10bÂ5
is absent: reliance. A plaintiff must show reliance on the
defendant's misstatement or omission to recover under
10bÂ5. Basic Inc. v. Levinson, supra, at 243. Were we to
allow the aiding and abetting action proposed in this case,
the defendant could be liable without any showing that the
plaintiff relied upon the aider and abettor's statements or
actions. See also Chiarella, 445 U. S., at 228 (omission
actionable only where duty to disclose arises from specific
relationship between two parties). Allowing plaintiffs to
circumvent the reliance requirement would disregard the
careful limits on 10bÂ5 recovery mandated by our earlier
cases.
IV
Respondents make further arguments for imposition of
§ 10(b) aiding and abetting liability, none of which leads us to
a different answer.
A
The text does not support their point, but respondents and
some amici invoke a broad-based notion of congressional
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Opinion of the Court
intent. They say that Congress legislated with an under-
standing of general principles of tort law and that aiding and
abetting liability was "well established in both civil and crim-
inal actions by 1934." Brief for SEC 10. Thus, "Congress
intended to include" aiding and abetting liability in the 1934
Act. Id., at 11. A brief history of aiding and abetting lia-
bility serves to dispose of this argument.
Aiding and abetting is an ancient criminal law doctrine.
See United States v. Peoni, 100 F. 2d 401, 402 (CA2 1938); 1
M. Hale, Pleas of the Crown 615 (1736). Though there is no
federal common law of crimes, Congress in 1909 enacted
what is now 18 U. S. C. § 2, a general aiding and abetting
statute applicable to all federal criminal offenses. Act of
Mar. 4, 1909, § 332, 35 Stat. 1152. The statute decrees that
those who provide knowing aid to persons committing fed-
eral crimes, with the intent to facilitate the crime, are them-
selves committing a crime. Nye & Nissen v. United States,
336 U. S. 613, 619 (1949).
The Restatement of Torts, under a concert of action princi-
ple, accepts a doctrine with rough similarity to criminal aid-
ing and abetting. An actor is liable for harm resulting to a
third person from the tortious conduct of another "if he . . .
knows that the other's conduct constitutes a breach of duty
and gives substantial assistance or encouragement to the
other . . . ." Restatement (Second) of Torts § 876(b) (1977);
see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
and Keeton on Law of Torts 322Â324 (5th ed. 1984). The
doctrine has been at best uncertain in application, however.
As the Court of Appeals for the District of Columbia Circuit
noted in a comprehensive opinion on the subject, the leading
cases applying this doctrine are statutory securities cases,
with the common-law precedents "largely confined to iso-
lated acts of adolescents in rural society." Halberstam v.
Welch, 705 F. 2d 472, 489 (1983). Indeed, in some States, it
is still unclear whether there is aiding and abetting tort lia-
bility of the kind set forth in § 876(b) of the Restatement.
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182 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
See, e. g., FDIC v. S. Prawer & Co., 829 F. Supp. 453, 457
(Me. 1993) (in Maine, "[i]t is clear . . . that aiding and abetting
liability did not exist under the common law, but was entirely
a creature of statute"); In re Asbestos School Litigation, No.
83Â0268, 1991 U. S. Dist. LEXIS 10471, *34 (ED Pa., July 18,
1991) (cause of action under Restatement § 876 "has not yet
been applied as a basis for liability" by Pennsylvania courts);
Meadow Limited Partnership v. Heritage Savings and Loan
Assn., 639 F. Supp. 643, 653 (ED Va. 1986) (aiding and abet-
ting tort based on Restatement § 876 "not expressly recog-
nized by the state courts of the Commonwealth" of Virginia);
Sloane v. Fauque, 239 Mont. 383, 385, 784 P. 2d 895, 896
(1989) (aiding and abetting tort liability is issue "of first im-
pression in Montana").
More to the point, Congress has not enacted a general civil
aiding and abetting statute-either for suits by the Govern-
ment (when the Government sues for civil penalties or in-
junctive relief) or for suits by private parties. Thus, when
Congress enacts a statute under which a person may sue and
recover damages from a private defendant for the defend-
ant's violation of some statutory norm, there is no general
presumption that the plaintiff may also sue aiders and abet-
tors. See, e. g., Electronic Laboratory Supply Co. v. Cullen,
977 F. 2d 798, 805Â806 (CA3 1992).
Congress instead has taken a statute-by-statute approach
to civil aiding and abetting liability. For example, the Inter-
nal Revenue Code contains a full section governing aiding
and abetting liability, complete with description of scienter
and the penalties attached. 26 U. S. C. § 6701 (1988 ed. and
Supp. IV). The Commodity Exchange Act contains an ex-
plicit aiding and abetting provision that applies to private
suits brought under that Act. 7 U. S. C. § 25(a)(1) (1988 ed.
and Supp. IV); see also, e. g., 12 U. S. C. § 93(b)(8) (1988 ed.
and Supp. IV) (National Bank Act defines violations to in-
clude "aiding or abetting"); 12 U. S. C. § 504(h) (1988 ed. and
Supp. IV) (Federal Reserve Act defines violations to include
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Opinion of the Court
"aiding or abetting"); Packers and Stockyards Act, 1921, ch.
64, § 202, 42 Stat. 161, 7 U. S. C. § 192(g) (civil aiding and
abetting provision). Indeed, various provisions of the secu-
rities laws prohibit aiding and abetting, although violations
are remediable only in actions brought by the SEC. See,
e. g., 15 U. S. C. § 78o(b)(4)(E) (1988 ed. and Supp. IV) (SEC
may proceed against brokers and dealers who aid and abet a
violation of the securities laws); Insider Trading Sanctions
Act of 1984, Pub. L. 98Â376, 98 Stat. 1264 (civil penalty pro-
vision added in 1984 applicable to those who aid and abet
insider trading violations); 15 U. S. C. § 78uÂ2 (1988 ed.,
Supp. IV) (civil penalty provision added in 1990 applicable to
brokers and dealers who aid and abet various violations of
the Act).
With this background in mind, we think respondents' argu-
ment based on implicit congressional intent can be taken in
one of three ways. First, respondents might be saying that
aiding and abetting should attach to all federal civil statutes,
even laws that do not contain an explicit aiding and abetting
provision. But neither respondents nor their amici cite, and
we have not found, any precedent for that vast expansion of
federal law. It does not appear Congress was operating on
that assumption in 1934, or since then, given that it has been
quite explicit in imposing civil aiding and abetting liability
in other instances. We decline to recognize such a compre-
hensive rule with no expression of congressional direction to
do so.
Second, on a more narrow ground, respondents' congres-
sional intent argument might be interpreted to suggest that
the 73d Congress intended to include aiding and abetting
only in § 10(b). But nothing in the text or history of § 10(b)
even implies that aiding and abetting was covered by the
statutory prohibition on manipulative and deceptive conduct.
Third, respondents' congressional intent argument might
be construed as a contention that the 73d Congress intended
to impose aiding and abetting liability for all of the express
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184 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
causes of action contained in the 1934 Act-and thus would
have imposed aiding and abetting liability in § 10(b) actions
had it enacted a private § 10(b) right of action. As we have
explained, however, none of the express private causes of
action in the Act imposes aiding and abetting liability, and
there is no evidence that Congress intended that liability for
the express causes of action.
Even assuming, moreover, a deeply rooted background of
aiding and abetting tort liability, it does not follow that
Congress intended to apply that kind of liability to the pri-
vate causes of action in the securities Acts. Cf. Mertens,
508 U. S., at 254 (omission of knowing participation liability
in ERISA "appears all the more deliberate in light of the
fact that `knowing participation' liability on the part of both
cotrustees and third persons was well established under
the common law of trusts"). In addition, Congress did not
overlook secondary liability when it created the private
rights of action in the 1934 Act. Section 20 of the 1934 Act
imposes liability on "controlling person[s]"-persons who
"contro[l] any person liable under any provision of this chap-
ter or of any rule or regulation thereunder." 15 U. S. C.
§ 78t(a). This suggests that "[w]hen Congress wished to cre-
ate such [secondary] liability, it had little trouble doing so."
Pinter v. Dahl, 486 U. S., at 650; cf. Touche Ross & Co. v.
Redington, 442 U. S. 560, 572 (1979) ("Obviously, then, when
Congress wished to provide a private damages remedy, it
knew how to do so and did so expressly"); see also Fischel,
69 Calif. L. Rev., at 96Â98. Aiding and abetting is "a method
by which courts create secondary liability" in persons other
than the violator of the statute. Pinter v. Dahl, supra, at
648, n. 24. The fact that Congress chose to impose some
forms of secondary liability, but not others, indicates a delib-
erate congressional choice with which the courts should not
interfere.
We note that the 1929 Uniform Sale of Securities Act con-
tained a private aiding and abetting cause of action. And at
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Opinion of the Court
the time Congress passed the 1934 Act, the blue sky laws of
11 States and the Territory of Hawaii provided a private
right of action against those who aided a fraudulent or illegal
sale of securities. See Abrams, The Scope of Liability
Under Section 12 of the Securities Act of 1933: "Participa-
tion" and the Pertinent Legislative Materials, 15 Ford. Urb.
L. J. 877, 945, and n. 423 (1987) (listing provisions). Con-
gress enacted the 1933 and 1934 Acts against this backdrop,
but did not provide for aiding and abetting liability in any of
the private causes of action it authorized.
In sum, it is not plausible to interpret the statutory silence
as tantamount to an implicit congressional intent to impose
§ 10(b) aiding and abetting liability.
B
When Congress reenacts statutory language that has been
given a consistent judicial construction, we often adhere to
that construction in interpreting the reenacted statutory lan-
guage. See, e. g., Keene Corp. v. United States, 508 U. S.
200, 212Â213 (1993); Pierce v. Underwood, 487 U. S. 552, 567
(1988); Lorillard v. Pons, 434 U. S. 575, 580Â581 (1978). Con-
gress has not reenacted the language of § 10(b) since 1934,
however, so we need not determine whether the other condi-
tions for applying the reenactment doctrine are present.
Cf. Fogerty v. Fantasy, Inc., 510 U. S. 517, 527Â532 (1994).
Nonetheless, the parties advance competing arguments
based on other post-1934 legislative developments to support
their differing interpretations of § 10(b). Respondents note
that 1983 and 1988 Committee Reports, which make oblique
references to aiding and abetting liability, show that those
Congresses interpreted § 10(b) to cover aiding and abetting.
H. R. Rep. No. 100Â910, pp. 27Â28 (1988); H. R. Rep. No. 355,
p. 10 (1983). But "[w]e have observed on more than one oc-
casion that the interpretation given by one Congress (or a
committee or Member thereof) to an earlier statute is of
little assistance in discerning the meaning of that statute."
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186 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
Public Employees Retirement System of Ohio v. Betts, 492
U. S. 158, 168 (1989); see Weinberger v. Rossi, 456 U. S. 25, 35
(1982); Consumer Product Safety Comm'n v. GTE Sylvania,
Inc., 447 U. S. 102, 118, and n. 13 (1980).
Respondents observe that Congress has amended the
securities laws on various occasions since 1966, when courts
first began to interpret § 10(b) to cover aiding and abetting,
but has done so without providing that aiding and abetting
liability is not available under § 10(b). From that, respond-
ents infer that these Congresses, by silence, have acquiesced
in the judicial interpretation of § 10(b). We disagree. This
Court has reserved the issue of 10bÂ5 aiding and abetting
liability on two previous occasions. Herman & MacLean v.
Huddleston, 459 U. S., at 379, n. 5; Ernst & Ernst, 425 U. S.,
at 191Â192, n. 7. Furthermore, our observations on the ac-
quiescence doctrine indicate its limitations as an expression
of congressional intent. "It does not follow . . . that Con-
gress' failure to overturn a statutory precedent is reason for
this Court to adhere to it. It is `impossible to assert with
any degree of assurance that congressional failure to act rep-
resents' affirmative congressional approval of the [courts']
statutory interpretation. . . . Congress may legislate, more-
over, only through the passage of a bill which is approved by
both Houses and signed by the President. See U. S. Const.,
Art. I, § 7, cl. 2. Congressional inaction cannot amend a duly
enacted statute." Patterson v. McLean Credit Union, 491
U. S. 164, 175, n. 1 (1989) (quoting Johnson v. Transportation
Agency, Santa Clara Cty., 480 U. S. 616, 672 (1987) (Scalia,
J., dissenting)); see Helvering v. Hallock, 309 U. S. 106, 121
(1940) (Frankfurter, J.) ("[W]e walk on quicksand when we
try to find in the absence of corrective legislation a control-
ling legal principle").
Central Bank, for its part, points out that in 1957, 1959,
and 1960, bills were introduced that would have amended the
securities laws to make it "unlawful . . . to aid, abet, counsel,
command, induce, or procure the violation of any provision"
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Opinion of the Court
of the 1934 Act. S. 1179, 86th Cong., 1st Sess. § 22 (1959);
see also S. 3770, 86th Cong., 2d Sess. § 20 (1960); S. 2545, 85th
Cong., 1st Sess. § 20 (1957). These bills prompted "industry
fears that private litigants, not only the SEC, may find in
this section a vehicle by which to sue aiders and abettors,"
and the bills were not passed. SEC Legislation: Hearings
before a Subcommittee of the Senate Committee on Bank-
ing and Currency on S. 1178, S. 1179, S. 1180, S. 1181, and
S. 1182, 86th Cong., 1st Sess., 288, 370 (1959). According to
Central Bank, these proposals reveal that those Congresses
interpreted § 10(b) not to cover aiding and abetting. We
have stated, however, that failed legislative proposals are "a
particularly dangerous ground on which to rest an interpre-
tation of a prior statute." Pension Benefit Guaranty Cor-
poration v. LTV Corp., 496 U. S. 633, 650 (1990). "Congres-
sional inaction lacks persuasive significance because several
equally tenable inferences may be drawn from such inaction,
including the inference that the existing legislation already
incorporated the offered change." Ibid. (internal quotation
marks omitted); see United States v. Wise, 370 U. S. 405,
411 (1962).
It is true that our cases have not been consistent in reject-
ing arguments such as these. Compare Flood v. Kuhn, 407
U. S. 258, 281Â282 (1972), with Pension Benefit Guaranty
Corporation, supra, at 650; compare Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 381Â382
(1982), with Aaron v. SEC, 446 U. S., at 694, n. 11. As a
general matter, however, we have stated that these argu-
ments deserve little weight in the interpretive process.
Even were that not the case, the competing arguments here
would not point to a definitive answer. We therefore reject
them. As we stated last Term, Congress has acknowledged
the 10bÂ5 action without any further attempt to define it.
Musick, Peeler, 508 U. S., at 293Â294. We find our role lim-
ited when the issue is the scope of conduct prohibited by the
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188 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
statute. Id., at 291Â292. That issue is our concern here,
and we adhere to the statutory text in resolving it.
C
The SEC points to various policy arguments in support of
the 10bÂ5 aiding and abetting cause of action. It argues, for
example, that the aiding and abetting cause of action deters
secondary actors from contributing to fraudulent activities
and ensures that defrauded plaintiffs are made whole. Brief
for SEC 16Â17.
Policy considerations cannot override our interpretation of
the text and structure of the Act, except to the extent that
they may help to show that adherence to the text and struc-
ture would lead to a result "so bizarre" that Congress could
not have intended it. Demarest v. Manspeaker, 498 U. S.
184, 191 (1991); cf. Pinter v. Dahl, 486 U. S., at 654 ("[W]e
need not entertain Pinter's policy arguments"); Santa Fe
Industries, 430 U. S., at 477 (language sufficiently clear to be
dispositive). That is not the case here.
Extending the 10bÂ5 cause of action to aiders and abettors
no doubt makes the civil remedy more far reaching, but it
does not follow that the objectives of the statute are better
served. Secondary liability for aiders and abettors exacts
costs that may disserve the goals of fair dealing and effi-
ciency in the securities markets.
As an initial matter, the rules for determining aiding and
abetting liability are unclear, in "an area that demands cer-
tainty and predictability." Pinter v. Dahl, 486 U. S., at 652.
That leads to the undesirable result of decisions "made on an
ad hoc basis, offering little predictive value" to those who
provide services to participants in the securities business.
Ibid. "[S]uch a shifting and highly fact-oriented disposition
of the issue of who may [be liable for] a damages claim for
violation of Rule 10bÂ5" is not a "satisfactory basis for a rule
of liability imposed on the conduct of business transactions."
Blue Chip Stamps, 421 U. S., at 755; see also Virginia Bank-
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Opinion of the Court
shares, 501 U. S., at 1106 ("The issues would be hazy, their
litigation protracted, and their resolution unreliable. Given
a choice, we would reject any theory . . . that raised such
prospects"). Because of the uncertainty of the governing
rules, entities subject to secondary liability as aiders and
abettors may find it prudent and necessary, as a business
judgment, to abandon substantial defenses and to pay settle-
ments in order to avoid the expense and risk of going to trial.
In addition, "litigation under Rule 10bÂ5 presents a dan-
ger of vexatiousness different in degree and in kind from
that which accompanies litigation in general." Blue Chip
Stamps, supra, at 739; see Virginia Bankshares, supra, at
1105; S. Rep. No. 792, 73d Cong., 2d Sess., p. 21 (1934) (attor-
ney's fees provision is protection against strike suits). Liti-
gation under 10bÂ5 thus requires secondary actors to expend
large sums even for pretrial defense and the negotiation of
settlements. See 138 Cong. Rec. S12605 (Aug. 12, 1992) (re-
marks of Sen. Sanford) (asserting that in 83% of 10bÂ5 cases
major accounting firms pay $8 in legal fees for every $1 paid
in claims).
This uncertainty and excessive litigation can have ripple
effects. For example, newer and smaller companies may
find it difficult to obtain advice from professionals. A pro-
fessional may fear that a newer or smaller company may not
survive and that business failure would generate securities
litigation against the professional, among others. In addi-
tion, the increased costs incurred by professionals because of
the litigation and settlement costs under 10bÂ5 may be
passed on to their client companies, and in turn incurred by
the company's investors, the intended beneficiaries of the
statute. See Winter, Paying Lawyers, Empowering Prose-
cutors, and Protecting Managers: Raising the Cost of Capital
in America, 42 Duke L. J. 945, 948Â966 (1993).
We hasten to add that competing policy arguments in favor
of aiding and abetting liability can also be advanced. The
point here, however, is that it is far from clear that Congress
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190 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Opinion of the Court
in 1934 would have decided that the statutory purposes
would be furthered by the imposition of private aider and
abettor liability.
D
At oral argument, the SEC suggested that 18 U. S. C. § 2
is "significant" and "very important" in this case. Tr. of
Oral Arg. 41, 43. At the outset, we note that this contention
is inconsistent with the SEC's argument that recklessness is
a sufficient scienter for aiding and abetting liability. Crimi-
nal aiding and abetting liability under § 2 requires proof that
the defendant "in some sort associate[d] himself with the
venture, that he participate[d] in it as in something that he
wishe[d] to bring about, that he [sought] by his action to
make it succeed." Nye & Nissen, 336 U. S., at 619 (internal
quotation marks omitted). But recklessness, not intentional
wrongdoing, is the theory underlying the aiding and abetting
allegations in the case before us.
Furthermore, while it is true that an aider and abettor of a
criminal violation of any provision of the 1934 Act, including
§ 10(b), violates 18 U. S. C. § 2, it does not follow that a pri-
vate civil aiding and abetting cause of action must also exist.
We have been quite reluctant to infer a private right of ac-
tion from a criminal prohibition alone; in Cort v. Ash, 422
U. S. 66, 80 (1975), for example, we refused to infer a private
right of action from "a bare criminal statute." And we have
not suggested that a private right of action exists for all
injuries caused by violations of criminal prohibitions. See
Touche Ross, 442 U. S., at 568 ("[Q]uestion of the existence
of a statutory cause of action is, of course, one of statutory
construction"). If we were to rely on this reasoning now,
we would be obliged to hold that a private right of action
exists for every provision of the 1934 Act, for it is a criminal
violation to violate any of its provisions. 15 U. S. C. § 78ff.
And thus, given 18 U. S. C. § 2, we would also have to hold
that a civil aiding and abetting cause of action is available
for every provision of the Act. There would be no logical
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Cite as: 511 U. S. 164 (1994) 191
Opinion of the Court
stopping point to this line of reasoning: Every criminal stat-
ute passed for the benefit of some particular class of persons
would carry with it a concomitant civil damages cause of
action.
This approach, with its far-reaching consequences, would
work a significant shift in settled interpretive principles re-
garding implied causes of action. See, e. g., Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 (1979). We
are unwilling to reverse course in this case. We decline to
rely only on 18 U. S. C. § 2 as the basis for recognizing a pri-
vate aiding and abetting right of action under § 10(b).
V
Because the text of § 10(b) does not prohibit aiding and
abetting, we hold that a private plaintiff may not maintain
an aiding and abetting suit under § 10(b). The absence of
§ 10(b) aiding and abetting liability does not mean that sec-
ondary actors in the securities markets are always free from
liability under the securities Acts. Any person or entity,
including a lawyer, accountant, or bank, who employs a ma-
nipulative device or makes a material misstatement (or omis-
sion) on which a purchaser or seller of securities relies may
be liable as a primary violator under 10bÂ5, assuming all of
the requirements for primary liability under Rule 10bÂ5 are
met. See Fischel, 69 Calif. L. Rev., at 107Â108. In any
complex securities fraud, moreover, there are likely to be
multiple violators; in this case, for example, respondents
named four defendants as primary violators. App. 24Â25.
Respondents concede that Central Bank did not commit a
manipulative or deceptive act within the meaning of § 10(b).
Tr. of Oral Arg. 31. Instead, in the words of the complaint,
Central Bank was "secondarily liable under § 10(b) for its
conduct in aiding and abetting the fraud." App. 26. Be-
cause of our conclusion that there is no private aiding and
abetting liability under § 10(b), Central Bank may not be held
liable as an aider and abettor. The District Court's grant
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192 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Stevens, J., dissenting
of summary judgment to Central Bank was proper, and the
judgment of the Court of Appeals is
Reversed.
Justice Stevens, with whom Justice Blackmun, Jus-
tice Souter, and Justice Ginsburg join, dissenting.
The main themes of the Court's opinion are that the text
of § 10(b) of the Securities Exchange Act of 1934 (Exchange
Act), 15 U. S. C. § 78j(b), does not expressly mention aiding
and abetting liability, and that Congress knows how to legis-
late. Both propositions are unexceptionable, but neither is
reason to eliminate the private right of action against aiders
and abettors of violations of § 10(b) and the Securities and
Exchange Commission's (SEC's) Rule 10bÂ5. Because the
majority gives short shrift to a long history of aider and
abettor liability under § 10(b) and Rule 10bÂ5, and because
its rationale imperils other well-established forms of second-
ary liability not expressly addressed in the securities laws, I
respectfully dissent.
In hundreds of judicial and administrative proceedings in
every Circuit in the federal system, the courts and the SEC
have concluded that aiders and abettors are subject to lia-
bility under § 10(b) and Rule 10bÂ5. See 5B A. Jacobs, Liti-
gation and Practice Under Rule 10bÂ5 § 40.02 (rev. ed.
1993) (citing cases). While we have reserved decision on the
legitimacy of the theory in two cases that did not present it,
all 11 Courts of Appeals to have considered the question
have recognized a private cause of action against aiders and
abettors under § 10(b) and Rule 10bÂ5.1 The early aiding
1 See, e. g., Cleary v. Perfectune, Inc., 700 F. 2d 774, 777 (CA1 1983); IIT
v. Cornfeld, 619 F. 2d 909, 922 (CA2 1980); Monsen v. Consolidated
Dressed Beef Co., 579 F. 2d 793, 799Â800 (CA3 1978); Schatz v. Rosenberg,
943 F. 2d 485, 496Â497 (CA4 1991); Fine v. American Solar King Corp.,
919 F. 2d 290, 300 (CA5 1990); Moore v. Fenex, Inc., 809 F. 2d 297, 303
(CA6), cert. denied sub nom. Moore v. Frost, 483 U. S. 1006 (1987);
Schlifke v. Seafirst Corp., 866 F. 2d 935, 947 (CA7 1989); K & S Partner-
ship v. Continental Bank, N. A., 952 F. 2d 971, 977 (CA8 1991); Levine v.
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Stevens, J., dissenting
and abetting decisions relied upon principles borrowed from
tort law; in those cases, judges closer to the times and cli-
mate of the 73d Congress than we concluded that holding
aiders and abettors liable was consonant with the Exchange
Act's purpose to strengthen the antifraud remedies of the
common law.2 One described the aiding and abetting theory,
grounded in "general principles of tort law," as a "logical
and natural complement" to the private § 10(b) action that
furthered the Exchange Act's purpose of "creation and main-
tenance of a post-issuance securities market that is free from
fraudulent practices." Brennan v. Midwestern United Life
Ins. Co., 259 F. Supp. 673, 680 (ND Ind. 1966) (borrowing
Diamanthuset, Inc., 950 F. 2d 1478, 1483 (CA9 1991); Farlow v. Peat, Mar-
wick, Mitchell & Co., 956 F. 2d 982, 986 (CA10 1992); Schneberger v.
Wheeler, 859 F. 2d 1477, 1480 (CA11 1988). The only court not to have
squarely recognized aiding and abetting in private § 10(b) actions has done
so in an action brought by the SEC, see Dirks v. SEC, 681 F. 2d 824, 844
(CADC), rev'd on other grounds, 463 U. S. 646 (1983), and has suggested
that such a claim was available in private actions, see Zoelsch v. Arthur
Andersen & Co., 824 F. 2d 27, 35Â36 (CADC 1987). The Seventh Circuit's
test differs markedly from the other Circuits' in that it requires that the
aider and abettor "commit one of the `manipulative or deceptive' acts pro-
hibited under section 10(b) and rule 10bÂ5." Robin v. Arthur Young &
Co., 915 F. 2d 1120, 1123 (CA7 1990).
2 When § 10(b) was enacted, aiding and abetting liability was widely, al-
beit not universally, recognized in the law of torts and in state legislation
prohibiting misrepresentation in the marketing of securities. See, e. g., 1
T. Cooley, Law of Torts 244 (3d ed. 1906) ("All who actively participate in
any manner in the commission of a tort, or who command, direct, advise,
encourage, aid or abet its commission, are jointly and severally liable
therefor"). Section 16(1) of the Uniform Sale of Securities Act, 9 U. L. A.
385 (1932), conferred a right to sue aiders and abettors of securities fraud,
as did the blue sky laws of 11 States. See Abrams, The Scope of Liability
Under Section 12 of the Securities Act of 1933: "Participation" and the
Pertinent Legislative Materials, 15 Ford. Urb. L. J. 877, 945 (1987). The
courts' reliance on common-law tort principles in defining the scope of
liability under § 10(b) was by no means an anomaly. See, e. g., American
Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U. S. 556,
565Â574 (1982).
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194 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Stevens, J., dissenting
formulation from the Restatement of Torts § 876(b) (1939)),
later opinion, 286 F. Supp. 702 (1968), aff'd, 417 F. 2d 147
(CA7 1969), cert. denied, 397 U. S. 989 (1970). See also
Pettit v. American Stock Exchange, 217 F. Supp. 21, 28
(SDNY 1963).
The Courts of Appeals have usually applied a familiar
three-part test for aider and abettor liability, patterned on
the Restatement of Torts formulation, that requires (i) the
existence of a primary violation of § 10(b) or Rule 10bÂ5, (ii)
the defendant's knowledge of (or recklessness as to) that pri-
mary violation, and (iii) "substantial assistance" of the viola-
tion by the defendant. See, e. g., Cleary v. Perfectune, Inc.,
700 F. 2d 774, 776Â777 (CA1 1983); IIT, An Int'l Investment
Trust v. Cornfeld, 619 F. 2d 909, 922 (CA2 1980). If indeed
there has been "continuing confusion" concerning the private
right of action against aiders and abettors, that confusion has
not concerned its basic structure, still less its "existence."
See ante, at 170. Indeed, in this case, petitioner assumed
the existence of a right of action against aiders and abettors,
and sought review only of the subsidiary questions whether
an indenture trustee could be found liable as an aider and
abettor absent a breach of an indenture agreement or other
duty under state law, and whether it could be liable as an
aider and abettor based only on a showing of recklessness.
These questions, it is true, have engendered genuine dis-
agreement in the Courts of Appeals.3 But instead of simply
addressing the questions presented by the parties, on which
the law really was unsettled, the Court sua sponte directed
3 Compare, for example, the discussion in the opinion below of scienter
in cases in which defendant has no disclosure duty, 969 F. 2d 891, 902Â903
(CA10 1993), with that in Schatz v. Rosenberg, 943 F. 2d 485, 496 (CA4
1991), and Ross v. Bolton, 904 F. 2d 819, 824 (CA2 1990). See also Kueh-
nle, Secondary Liability Under The Federal Securities Laws-Aiding and
Abetting, Conspiracy, Controlling Person, and Agency: Common-Law
Principles and The Statutory Scheme, 14 J. Corp. L. 313, 323Â324, and
n. 53 (1988).
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Stevens, J., dissenting
the parties to address a question on which even the peti-
tioner justifiably thought the law was settled, and reaches
out to overturn a most considerable body of precedent.4
Many of the observations in the majority's opinion would
be persuasive if we were considering whether to recognize a
private right of action based upon a securities statute
enacted recently. Our approach to implied causes of action,
as to other matters of statutory construction, has changed
markedly since the Exchange Act's passage in 1934. At that
time, and indeed until quite recently, courts regularly as-
sumed, in accord with the traditional common-law presump-
tion, that a statute enacted for the benefit of a particular
class conferred on members of that class the right to sue
violators of that statute.5 Moreover, shortly before the Ex-
change Act was passed, this Court instructed that such
"remedial" legislation should receive "a broader and more
liberal interpretation than that to be drawn from mere dic-
tionary definitions of the words employed by Congress."
Piedmont & Northern R. Co. v. ICC, 286 U. S. 299, 311
(1932). There is a risk of anachronistic error in applying our
current approach to implied causes of action, ante, at 176Â
177, to a statute enacted when courts commonly read stat-
4 "As I have said before, `the adversary process functions most effec-
tively when we rely on the initiative of lawyers, rather than the activism
of judges, to fashion the questions for review.' New Jersey v. T. L. O.,
468 U. S. 1214, 1216 (1984) (dissenting from order directing reargument)."
Patterson v. McLean Credit Union, 485 U. S. 617, 623 (1988) (Stevens, J.,
dissenting from order directing reargument).
5 See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S.
353, 374Â378 (1982); Middlesex County Sewerage Authority v. National
Sea Clammers Assn., 453 U. S. 1, 22Â25 (1981) (Stevens, J., concurring in
judgment in part and dissenting in part); California v. Sierra Club, 451
U. S. 287, 298Â301 (1981) (Stevens, J., concurring). A discussion of the
common-law presumption is found in Justice Pitney's opinion for the Court
in Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 39Â40 (1916). See also,
e. g., Texas & New Orleans R. Co. v. Railway Clerks, 281 U. S. 548, 568Â
570 (1930).
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196 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Stevens, J., dissenting
utes of this kind broadly to accord with their remedial pur-
poses and regularly approved rights to sue despite statutory
silence.
Even had § 10(b) not been enacted against a backdrop of
liberal construction of remedial statutes and judicial favor
toward implied rights of action, I would still disagree with
the majority for the simple reason that a "settled construc-
tion of an important federal statute should not be disturbed
unless and until Congress so decides." Reves v. Ernst &
Young, 494 U. S. 56, 74 (1990) (Stevens, J., concurring).
See Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723,
733 (1975) (the "longstanding acceptance by the courts" and
"Congress' failure to reject" rule announced in landmark
Court of Appeals decision favored retention of the rule).6 A
policy of respect for consistent judicial and administrative
interpretations leaves it to elected representatives to assess
settled law and to evaluate the merits and demerits of chang-
ing it.7 Even when there is no affirmative evidence of rati-
6 None of the cases the majority relies upon to support its strict con-
struction of § 10(b), ante, at 173Â175, even arguably involved a settled
course of lower court decisions. See Mertens v. Hewitt Associates, 508
U. S. 248 (1993); Pinter v. Dahl, 486 U. S. 622, 635, n. 12 (1988); Chiarella
v. United States, 445 U. S. 222, 229, n. 11 (1980); Sante Fe Industries, Inc.
v. Green, 430 U. S. 462, 475Â476, n. 15 (1977); Ernst & Ernst v. Hochfelder,
425 U. S. 185, 191Â192, n. 7 (1976).
7 Of course, when a decision of this Court upsets settled law, Congress
may step in to reinstate the old law, cf. Securities Exchange Act § 27A, as
added by Pub. L. 102Â242, § 476, 105 Stat. 2236, 2387, codified at 15 U. S. C.
§ 78aaÂ1 (1988 ed., Supp. IV) (providing that relevant state limitations
period should govern actions pending when Lampf, Pleva, Lipkind,
Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991), came down). How-
ever, we should not lightly heap new tasks on the Legislature's already
full plate. Moreover, congressional efforts to address the problems posed
by judicial decisions that disrupt settled law frequently create special dif-
ficulties of their own. See, e. g., Plaut v. Spendthrift Farm, Inc., 1 F. 3d
1487 (CA6 1993) (holding § 27A unconstitutional), cert. pending, No. 93Â
1121; Pacific Mut. Life Ins. Co. v. First RepublicBank Corp., 997 F. 2d 39
(CA5 1993) (upholding it), cert. granted, 510 U. S. 1039 (1994). See also
Rivers v. Roadway Express, Inc., post, at 304Â313.
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Cite as: 511 U. S. 164 (1994) 197
Stevens, J., dissenting
fication, the Legislature's failure to reject a consistent judi-
cial or administrative construction counsels hesitation from
a court asked to invalidate it. Cf. Burnet v. Coronado Oil &
Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting).
Here, however, the available evidence suggests congressional
approval of aider and abettor liability in private § 10(b) ac-
tions. In its comprehensive revision of the Exchange Act in
1975, Congress left untouched the sizable body of case law
approving aiding and abetting liability in private actions
under § 10(b) and Rule 10bÂ5.8 The case for leaving aiding
8 By 1975, the renowned decision in Brennan v. Midwestern United Life
Ins. Co., 259 F. Supp. 673, 680 (ND Ind. 1966), had been on the books
almost a decade and several Courts of Appeals had recognized aider and
abettor liability in private actions brought under § 10(b) and Rule 10bÂ5.
See Kerbs v. Fall River Industries, Inc., 502 F. 2d 731, 739Â740 (CA10
1974); Landy v. FDIC, 486 F. 2d 139, 162Â163 (CA3 1973), cert. denied,
416 U. S. 960 (1974); Strong v. France, 474 F. 2d 747, 752 (CA9 1973);
Buttrey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 410 F. 2d 135,
144 (CA7), cert. denied, 396 U. S. 838 (1969). See also Lanza v. Drexel &
Co., 479 F. 2d 1277, 1301, 1303Â1304 (CA2 1973) (en banc); Ruder, Multiple
Defendants in Securities Law Fraud Cases: Aiding and Abetting, Con-
spiracy, In Pari Delicto, Indemnification, and Contribution, 120 U. Pa. L.
Rev. 597, 620Â638 (1972). We have noted the significance of the 1975
amendments in another case involving a "consistent line of judicial
decisions" on the implied right of action under § 10(b) and Rule 10bÂ5.
See Herman & MacLean v. Huddleston, 459 U. S. 375, 384Â386 (1983).
Those amendments emerged from " `the most searching reexamination of
the competitive, statutory, and economic issues facing the securities mar-
kets, the securities industry, and, of course, public investors, since the
1930's.' " Id., at 385, n. 20 (quoting H. R. Conf. Rep. No. 94Â229, p. 91
(1975)).
Congress' more recent visits to the securities laws also suggest approval
of the aiding and abetting theory in private § 10(b) actions. The House
Report accompanying an aiding and abetting provision of the 1983 Insider
Trading Sanctions Act, see 15 U. S. C. § 78u(d)(2)(A) (1982 ed., Supp. V),
contains an approving reference to "judicial application of the concept
of aiding and abetting liability to achieve the remedial purposes of the
securities laws," H. R. Rep. No. 98Â355, p. 10 (1983), and notes with favor
Rolf v. Blyth, Eastman Dillon & Co., 570 F. 2d 38 (CA2), cert. denied, 439
U. S. 1039 (1978), which affirmed a judgment against an aider and abettor
in a private action under § 10(b) and Rule 10bÂ5. Moreover, § 5 of the
511us1$36I 11-08-97 19:56:24 PAGES OPINPGT
198 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Stevens, J., dissenting
and abetting liability intact draws further strength from the
fact that the SEC itself has consistently understood § 10(b)
to impose aider and abettor liability since shortly after the
rule's promulgation. See Ernst & Young, 494 U. S., at 75
(Stevens, J., concurring). In short, one need not agree as
an original matter with the many decisions recognizing the
private right against aiders and abettors to concede that the
right fits comfortably within the statutory scheme, and that
it has become a part of the established system of private
enforcement. We should leave it to Congress to alter that
scheme.
The Court would be on firmer footing if it had been shown
that aider and abettor liability "detracts from the effective-
ness of the 10bÂ5 implied action or interferes with the effec-
tive operation of the securities laws." See Musick, Peeler &
Garrett v. Employers Ins. of Wausau, 508 U. S. 286, 298
(1993). However, the line of decisions recognizing aider and
abettor liability suffers from no such infirmities. The lan-
guage of both § 10(b) and Rule 10bÂ5 encompasses "any per-
son" who violates the Commission's antifraud rules, whether
"directly or indirectly"; we have read this "broad" language
"not technically and restrictively, but flexibly to effectuate
its remedial purposes." Affiliated Ute Citizens of Utah v.
United States, 406 U. S. 128, 151 (1972). In light of the en-
compassing language of § 10(b), and its acknowledged pur-
pose to strengthen the antifraud remedies of the common
law, it was certainly no wild extrapolation for courts to
conclude that aiders and abettors should be subject to the
Insider Trading and Securities Fraud Enforcement Act of 1988, Pub. L.
100Â704, 102 Stat. 4681, contains an express "acknowledgment," Musick,
Peeler & Garrett v. Employers Ins. of Wausau, 508 U. S. 286, 294 (1993),
of causes of action "implied from a provision of this title," 15 U. S. C.
§ 78tÂ1(d).
511us1$36I 11-08-97 19:56:24 PAGES OPINPGT
Cite as: 511 U. S. 164 (1994) 199
Stevens, J., dissenting
private action under § 10(b).9 Allowing aider and abettor
claims in private § 10(b) actions can hardly be said to impose
unfair legal duties on those whom Congress has opted to
leave unregulated: Aiders and abettors of § 10(b) and Rule
10bÂ5 violations have always been subject to criminal liabil-
ity under 18 U. S. C. § 2. See 15 U. S. C. § 78ff (criminal lia-
bility for willful violations of securities statutes and rules
promulgated under them). Although the Court canvasses
policy arguments against aider and abettor liability, ante, at
188Â190, it does not suggest that the aiding and abetting the-
ory has had such deleterious consequences that we should
dispense with it on those grounds.10 The agency charged
with primary responsibility for enforcing the securities laws
does not perceive such drawbacks, and urges retention of the
private right to sue aiders and abettors. See Brief for SEC
as Amicus Curiae 5Â17.
As framed by the Court's order redrafting the questions
presented, this case concerns only the existence and scope of
aiding and abetting liability in suits brought by private par-
ties under § 10(b) and Rule 10bÂ5. The majority's rationale,
9 In a similar context we recognized a private right of action against
secondary violators of a statutory duty despite the absence of a provision
explicitly covering them. See Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Curran, 456 U. S., at 394 ("Having concluded that exchanges can
be held accountable for breaching their statutory duties to enforce their
own rules prohibiting price manipulation, it necessarily follows that those
persons who are participants in a conspiracy to manipulate the market in
violation of those rules are also subject to suit by futures traders who can
prove injury from these violations").
10 Indeed, the Court anticipates, ante, at 191, that many aiders and abet-
tors will be subject to liability as primary violators. For example, an
accountant, lawyer, or other person making oral or written misrepresenta-
tions (or omissions, if the person owes a duty to the injured purchaser or
seller, cf. Dirks v. SEC, 463 U. S. 646, 654Â655 (1983)) in connection with
the purchase or sale of securities may be liable for a primary violation of
§ 10(b) and Rule 10bÂ5. See, e. g., Akin v. QÂL Investments, Inc., 959
F. 2d 521, 525Â526 (CA5 1992).
511us1$36I 11-08-97 19:56:24 PAGES OPINPGT
200 CENTRAL BANK OF DENVER, N. A. v. FIRST
INTERSTATE BANK OF DENVER, N. A.
Stevens, J., dissenting
however, sweeps far beyond even those important issues.
The majority leaves little doubt that the Exchange Act does
not even permit the SEC to pursue aiders and abettors in
civil enforcement actions under § 10(b) and Rule 10bÂ5. See
ante, at 177 (finding it dispositive that "the text of the 1934
Act does not itself reach those who aid and abet a § 10(b)
violation"). Aiding and abetting liability has a long pedi-
gree in civil proceedings brought by the SEC under § 10(b)
and Rule 10bÂ5, and has become an important part of the
SEC's enforcement arsenal.11 Moreover, the majority's ap-
proach to aiding and abetting at the very least casts serious
doubt, both for private and SEC actions, on other forms of
secondary liability that, like the aiding and abetting theory,
have long been recognized by the SEC and the courts but
are not expressly spelled out in the securities statutes.12
11 See, e. g., SEC v. Coffey, 493 F. 2d 1304, 1316 (CA6 1974); Ruder, 120
U. Pa. L. Rev., at 625Â626, nn. 124 and 125. The SEC reports that it
asserted aiding and abetting claims in 15 percent of its civil enforcement
proceedings in fiscal year 1992, and that elimination of aiding and abetting
liability would "sharply diminish the effectiveness of Commission actions."
Brief for SEC as Amicus Curiae 18, n. 15.
12 The Court's rationale would sweep away the decisions recognizing
that a defendant may be found liable in a private action for conspiring to
violate § 10(b) and Rule 10bÂ5. See, e. g., U. S. Industries, Inc. v. Touche
Ross & Co., 854 F. 2d 1223, 1231 (CA10 1988); SEC v. Coffey, 493 F. 2d
1304, 1316 (CA6 1974); Ferguson v. Omnimedia, Inc., 469 F. 2d 194, 197Â
198 (CA1 1972); Shell v. Hensley, 430 F. 2d 819, 827, n. 13 (CA5 1970);
Dasho v. Susquehanna Corp., 380 F. 2d 262, 267, n. 2 (CA7), cert. denied
sub nom. Bard v. Dasho, 389 U. S. 977 (1967). See generally Kuehnle, 14
J. Corp. L., at 343Â348. Secondary liability is as old as the implied right
of action under § 10(b) itself; the very first decision to recognize a private
cause of action under the section and rule, Kardon v. National Gypsum
Co., 69 F. Supp. 512 (ED Pa. 1946), involved an alleged conspiracy. See
also Fry v. Schumaker, 83 F. Supp. 476, 478 (ED Pa. 1947) (Kirkpatrick,
C. J.). In addition, many courts, concluding that § 20(a)'s "controlling per-
son" provisions, 15 U. S. C. § 78t, are not the exclusive source of secondary
liability under the Exchange Act, have imposed liability in § 10(b) actions
based upon respondeat superior and other common-law agency principles.
See, e. g., Hollinger v. Titan Capital Corp., 914 F. 2d 1564, 1576Â1577, and
511us1$36I 11-08-97 19:56:24 PAGES OPINPGT
Cite as: 511 U. S. 164 (1994) 201
Stevens, J., dissenting
The principle the Court espouses today-that liability may
not be imposed on parties who are not within the
scope of § 10(b)'s plain language-is inconsistent with long-
established SEC and judicial precedent.
As a general principle, I agree, "the creation of new rights
ought to be left to legislatures, not courts." Musick, Peeler,
508 U. S., at 291. But judicial restraint does not always
favor the narrowest possible interpretation of rights derived
from federal statutes. While we are now properly reluctant
to recognize private rights of action without an instruction
from Congress, we should also be reluctant to lop off rights
of action that have been recognized for decades, even if the
judicial methodology that gave them birth is now out of
favor. Caution is particularly appropriate here, because the
judicially recognized right in question accords with the long-
standing construction of the agency Congress has assigned
to enforce the securities laws. Once again the Court has
refused to build upon a " `secure foundation . . . laid by
others,' " Patterson v. McLean Credit Union, 491 U. S. 164,
222 (1989) (Stevens, J., dissenting) (quoting B. Cardozo, The
Nature of the Judicial Process 149 (1921)).
I respectfully dissent.
n. 27 (CA9 1990) (en banc) (citing and following decisions to this effect
from six other Circuits). See generally Kuehnle, 14 J. Corp. L., at 350Â
376. These decisions likewise appear unlikely to survive the Court's deci-
sion. See ante, at 184.
511us1$37Z 11-03-97 17:39:47 PAGES OPINPGT
202 OCTOBER TERM, 1993
Syllabus
McDERMOTT, INC. v. AmCLYDE et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 92Â1479. Argued January 11, 1994-Decided April 20, 1994
When petitioner McDermott, Inc., attempted to use a crane purchased
from respondent AmClyde to move an offshore oil and gas production
platform, a prong of the crane's hook broke, damaging both the platform
and the crane itself. The malfunction may have been caused by McDer-
mott's negligent operation of the crane, by AmClyde's faulty design or
construction, by a defect in the hook supplied by respondent River Don
Castings, Ltd., or by one or more of the three companies that supplied
supporting steel slings. McDermott brought suit in admiralty against
respondents and the three "sling defendants," but settled with the latter
for $1 million. The case then went to trial, and the jury assessed Mc-
Dermott's loss at $2.1 million, allocating 32% of the damages to Am-
Clyde, 38% to River Don, and 30% jointly to petitioner and the sling
defendants. Among other things, the District Court entered judgment
against AmClyde for $672,000 (32% of $2.1 million) and against River
Don for $798,000 (38% of $2.1 million). Holding that the contract be-
tween McDermott and AmClyde precluded any recovery against the
latter and that the trial judge had improperly denied respondents' mo-
tion to reduce the judgment against them pro tanto by the settlement
amount, the Court of Appeals reversed the judgment against AmClyde
entirely and reduced the judgment against River Don to $470,000, which
it computed by determining McDermott's full award to be $1.47 million
($2.1 million minus 30% attributed to McDermott/sling defendants), and
then by deducting the $1 million settlement.
Held: The nonsettling defendants' liability should be calculated with refer-
ence to the jury's allocation of proportionate responsibility, not by giving
them a credit for the dollar amount of the settlement. Pp. 207Â221.
(a) Supported by a consensus among maritime nations, scholars, and
judges, the Court, in United States v. Reliable Transfer Co., 421 U. S.
397, 409, adopted a rule requiring that damages in an admiralty suit be
assessed on the basis of proportionate fault when such an allocation
can reasonably be made. No comparable consensus has developed with
respect to the issue in this case. Although it is generally agreed that
nonsettling joint tortfeasors are entitled to a credit when the plaintiff
settles with one of the other defendants, there is a divergence of views
511us1$37Z 11-03-97 17:39:47 PAGES OPINPGT
Cite as: 511 U. S. 202 (1994) 203
Syllabus
about how that credit should be determined. The American Law Insti-
tute (ALI) has identified three principal alternatives for doing so: (1)
pro tanto setoff with a right of contribution against the settling defend-
ant; (2) pro tanto setoff without contribution; and (3) the "proportionate
share approach," whereby the settlement diminishes the injured party's
claim against nonsettling tortfeasors by the amount of the equitable
share of the obligation of the settling tortfeasor. Pp. 207Â211.
(b) ALI Option 3, the proportionate share approach, best answers the
question presented in this case. Option 1 is clearly inferior to the other
two alternatives, because it discourages settlement and leads to unnec-
essary ancillary litigation. As between Options 2 and 3, the propor-
tionate share approach is more consistent with the proportionate fault
approach of Reliable Transfer, supra, because a litigating defendant or-
dinarily pays only its proportionate share of the judgment. Conversely,
Option 2, even when supplemented with hearings to determine the good
faith of the settlement, is likely to lead to inequitable apportionments of
liability, contrary to Reliable Transfer. Moreover, although Option 2
sometimes seems to better promote settlement than Option 3, it must
ultimately be seen to have no clear advantage in that regard, since,
under the proportionate share approach, factors such as the parties' de-
sire to avoid litigation costs, to reduce uncertainty, and to maintain on-
going commercial relationships should ensure nontrial dispositions in
the vast majority of cases. Similarly, Option 2 has no clear advantage
with respect to judicial economy unless it is adopted without the re-
quirement of a good-faith hearing, a course which no party or amicus
advocates because of the large potential for unfairness to nonsettling
defendants, who might have to pay more than their fair share of the
damages. Pp. 211Â217.
(c) Respondents' argument that the proportionate share approach vi-
olates the "one satisfaction rule"-which, as applied by some courts,
reduces a plaintiff's recovery against a nonsettling defendant in order
to ensure that the plaintiff does not secure more than necessary to com-
pensate him for his loss-is rejected, since the law contains no rigid
rule against overcompensation, and, indeed, several doctrines, such as
the collateral benefits rule, recognize that making tortfeasors pay for
the damage they cause can be more important than preventing overcom-
pensation. The argument that the proportionate share approach is in-
consistent with Edmonds v. Compagnie Generale Transatlantique, 443
U. S. 256, is also rejected, since Edmonds was primarily a statutory
construction case, did not address the question at issue here or even
involve a settlement, and can be read as merely reaffirming the well-
established principle of joint and several liability, which was in no way
511us1$37Z 11-03-97 17:39:47 PAGES OPINPGT
204 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
abrogated by Reliable Transfer and is not in tension with the propor-
tionate share approach. Pp. 218Â221.
979 F. 2d 1068, reversed and remanded.
Stevens, J., delivered the opinion for a unanimous Court.
Arden J. Lea argued the cause for petitioner. With him
on the briefs was R. Jeffrey Bridger.
William K. Kelley argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Days, Assistant Attorney General
Hunger, Acting Deputy Solicitor General Kneedler, Richard
A. Olderman, and David V. Hutchinson.
Robert E. Couhig, Jr., argued the cause for respondents.
With him on the brief was Thomas G. O'Brien.*
Justice Stevens delivered the opinion of the Court.
A construction accident in the Gulf of Mexico gave rise
to this admiralty case. In advance of trial, petitioner, the
plaintiff, settled with three of the defendants for $1 million.
Respondents, however, did not settle, and the case went to
trial. A jury assessed petitioner's loss at $2.1 million and
allocated 32% of the damages to respondent AmClyde and
38% to respondent River Don Castings, Ltd. (River Don).
The question presented is whether the liability of the nonset-
tling defendants should be calculated with reference to the
jury's allocation of proportionate responsibility, or by giving
the nonsettling defendants a credit for the dollar amount of
the settlement. We hold that the proportionate approach is
the correct one.
I
Petitioner McDermott, Inc., purchased a specially de-
signed, 5,000-ton crane from AmClyde.1 When petitioner
*Warren B. Daly, Jr., and George W. Healy III filed a brief for the
Maritime Law Association of the United States as amicus curiae urging
reversal.
1 "AmClyde," formerly known as "Clyde Iron," is a division of AMCA
International, Inc.
511us1$37I 11-03-97 17:39:47 PAGES OPINPGT
Cite as: 511 U. S. 202 (1994) 205
Opinion of the Court
first used the crane in an attempt to move an oil and gas
production platform-the "Snapper deck"-from a barge to
a structural steel base affixed to the floor of the Gulf of Mex-
ico, a prong of the crane's main hook broke, causing massive
damage to the deck and to the crane itself. The malfunction
may have been caused by petitioner's negligent operation of
the crane, by AmClyde's faulty design or construction, by a
defect in the hook supplied by River Don, or by one or more
of the three companies (the "sling defendants") that supplied
the supporting steel slings.2
Invoking the federal court's jurisdiction under 28 U. S. C.
§§ 1332 and 1333(1),3 petitioner brought suit against Am-
Clyde and River Don and the three sling defendants. The
complaint sought a recovery for both deck damages and
crane damages. On the eve of trial, petitioner entered into
a settlement with the sling defendants. In exchange for $1
million, petitioner agreed to dismiss with prejudice its claims
against the sling defendants, to release them from all liability
for either deck or crane damages, and to indemnify them
against any contribution action. The trial judge later ruled
that petitioner's claim for crane damages was barred by East
River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S.
858 (1986).
In its opening statement at trial, petitioner McDermott
"accepted responsibility for any part the slings played in
causing the damage." 4 McDermott, Inc. v. Clyde Iron, 979
2 The three sling defendants, sometimes also described as the "settling
defendants," were International Southwest Slings, Inc.; British Ropes,
Ltd.; and Hendrik Veder B. V.
3 Section 1333(1) provides: "The district courts shall have original juris-
diction, exclusive of the courts of the States, of: (1) Any civil case of admi-
ralty or maritime jurisdiction, saving to suitors in all cases all other reme-
dies to which they are otherwise entitled."
4 McDermott's motive in taking upon itself responsibility for the sling
defendant's fault is obscure. Perhaps it thought doing so would prevent
a contribution action against the sling defendants and thus relieve McDer-
mott of its indemnity obligation.
511us1$37I 11-03-97 17:39:47 PAGES OPINPGT
206 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
F. 2d 1068, 1070 (CA5 1993). The jury found that the total
damages to the deck amounted to $2.1 million and, in answer
to special interrogatories, allocated responsibility among the
respective parties: 32% to AmClyde, 38% to River Don, and
30% jointly to McDermott and the sling defendants.5 The
court denied a motion by respondents to reduce the judg-
ment pro tanto by the $1 million settlement, and entered
judgment against AmClyde for $672,000 (32% of $2.1 million)
and against River Don for $798,000 (38% of $2.1 million).
Even though the sum of those judgments plus the settlement
proceeds exceeded the total damages found by the jury, the
District Court concluded that petitioner had not received a
double recovery because the settlement had covered both
crane damages and deck damages.6
The Court of Appeals held that a contractual provision
precluded any recovery against AmClyde and that the trial
judge had improperly denied a pro tanto settlement credit.
It reversed the judgment against AmClyde entirely and re-
duced the judgment against River Don to $470,000. It ar-
rived at that figure by making two calculations. First, it
determined that petitioner's "full damage[s] award is $1.47
million ($2.1 million jury verdict less 30% attributed to
McDermott/sling defendants)." 979 F. 2d, at 1081. Next,
it deducted the "$1 million received in settlement to reach
5 The special interrogatory treated McDermott and the sling defendants
as a single entity and called for a percentage figure that covered them
both. This combined treatment reflected McDermott's acceptance of re-
sponsibility for the damages caused by the sling defendants.
6 The trial judge also noted that "[t]o hold as the defendants request
would result in the settling defendants, who were at the most thirty per-
cent (30%) responsible for the accident (no separate contributory negli-
gence, if any, finding was made as to McDermott), paying One Million
Dollars ($1,000,000.00) while the defendants who insisted on a trial and
were found to be seventy percent (70%) liable would pay Four Hundred
and Seventy Thousand Dollars ($470,000.00) between them. That is
unjust . . . ." App. to Pet. for Cert. AÂ52 to AÂ53.
511us1$37I 11-03-97 17:39:47 PAGES OPINPGT
Cite as: 511 U. S. 202 (1994) 207
Opinion of the Court
$470,000." Ibid. It treated this figure as the maximum
that could be recovered from the nonsettling defendants.
Because it was less than River Don's liability as found by the
jury (38% of $2.1 million or $798,000), it directed the entry
of judgment against River Don in that amount. Ibid.
Because we have not previously considered how a settle-
ment with less than all of the defendants in an admiralty
case should affect the liability of nonsettling defendants, and
because the Courts of Appeals have adopted different ap-
proaches to this important question, we granted certiorari.
509 U. S. 921 (1993).
II
Although Congress has enacted significant legislation in
the field of admiralty law,7 none of those statutes provides
us with any "policy guidance" or imposes any limit on our
authority to fashion the rule that will best answer the ques-
tion presented by this case. See Miles v. Apex Marine
Corp., 498 U. S. 19, 27 (1990). We are, nevertheless, in famil-
iar waters because "the Judiciary has traditionally taken the
lead in formulating flexible and fair remedies in the law mari-
time." United States v. Reliable Transfer Co., 421 U. S. 397,
409 (1975).
In the Reliable Transfer case we decided to abandon a
rule that had been followed for over a century in assessing
damages when both parties to a collision are at fault. We
replaced the divided damages rule, which required an equal
division of property damage whatever the relative degree of
fault may have been, with a rule requiring that damages be
assessed on the basis of proportionate fault when such an
allocation can reasonably be made. Although the old rule
avoided the difficulty of determining comparative degrees of
7 See, e. g., Longshore and Harbor Workers' Compensation Act, 33
U. S. C. §§ 901Â950; Death on the High Seas Act, 46 U. S. C. §§ 761Â768;
Public Vessels Act, 46 U. S. C. §§ 781Â790.
511us1$37I 11-03-97 17:39:47 PAGES OPINPGT
208 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
negligence, we concluded that it was "unnecessarily crude
and inequitable" and that "[p]otential problems of proof in
some cases hardly require adherence to an archaic and unfair
rule in all cases." Id., at 407. Thus the interest in cer-
tainty and simplicity served by the old rule was outweighed
by the interest in fairness promoted by the proportionate
fault rule.
Our decision in Reliable Transfer was supported by a con-
sensus among the world's maritime nations and the views
of respected scholars and judges. See id., at 403Â405. No
comparable consensus has developed with respect to the
issue in the case before us today. It is generally agreed that
when a plaintiff settles with one of several joint tortfeasors,
the nonsettling defendants are entitled to a credit for that
settlement. There is, however, a divergence among re-
spected scholars and judges about how that credit should be
determined. Indeed, the American Law Institute (ALI) has
identified three principal alternatives and, after noting that
"[e]ach has its drawbacks and no one is satisfactory," decided
not to take a position on the issue. Restatement (Second)
of Torts § 886A, pp. 343Â344 (1977). The ALI describes the
three alternatives as follows:
"(1) The money paid extinguishes any claim that the
injured party has against the party released and the
amount of his remaining claim against the other tortfea-
sor is reached by crediting the amount received; but the
transaction does not affect a claim for contribution by
another tortfeasor who has paid more than his equitable
share of the obligation." Id., at 343.
"(2) The money paid extinguishes both any claims on
the part of the injured party and any claim for contribu-
tion by another tortfeasor who has paid more than his
equitable share of the obligation and seeks contribu-
tion." Ibid. (As in alternative (1), the amount of the
injured party's claim against the other tortfeasors is cal-
511us1$37I 11-03-97 17:39:47 PAGES OPINPGT
Cite as: 511 U. S. 202 (1994) 209
Opinion of the Court
culated by subtracting the amount of the settlement
from the plaintiff's damages.)
"(3) The money paid extinguishes any claim that the
injured party has against the released tortfeasor and
also diminishes the claim that the injured party has
against the other tortfeasors by the amount of the equi-
table share of the obligation of the released tortfeasor."
Id., at 344.8
The first two alternatives involve the kind of "pro tanto"
credit that respondents urge us to adopt. The difference
between the two versions of the pro tanto approach is the
recognition of a right of contribution against a settling de-
fendant in the first but not the second. The third alterna-
tive, supported by petitioner, involves a credit for the set-
tling defendants' "proportionate share" of responsibility for
the total obligation. Under this approach, no suits for con-
tribution from the settling defendants are permitted, nor are
they necessary, because the nonsettling defendants pay no
more than their share of the judgment.
8 The three alternatives sketched by the ALI correspond to three de-
tailed model Acts proposed by the National Conference of Commissioners
on Uniform State Laws. Uniform Contribution Among Tortfeasors Act
(1939 Act), 12 U. L. A. 57Â59 (1975) (ALI Option 1); Revised Uniform
Contribution Among Tortfeasors Act (1955 Revised Act), id., at 63Â107
(ALI Option 2); Uniform Comparative Fault Act (1977 Act), 12 U. L. A.
45Â61 (1993 Supp.) (ALI Option 3). Although the three ALI options are
the most plausible, a number of others are possible. So, for example, in
addition to arguing for the pro tanto rule, respondents suggest that we
consider a rule that allows the nonsettling defendants to elect before trial
either the pro tanto or the proportionate share rule. Although respond-
ents claim support for their proposal in Texas and New York statutes,
those statutes enact regimes quite different from that proposed by re-
spondents. Texas Civ. Prac. & Rem. Code Ann. § 33.012(b) (Supp. 1994)
(nonsettling defendant can choose pro tanto rule or reduction of damages
by fixed proportion of total damages without regard to relative fault); N. Y.
Gen. Oblig. Law § 15Â108 (McKinney 1989) (pro tanto rule or proportionate
share rule, whichever favors nonsettling defendants). We are unwilling
to consider a rule that has yet to be applied in any jurisdiction.
511us1$37I 11-03-97 17:39:47 PAGES OPINPGT
210 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
The proportionate share approach 9 would make River Don
responsible for precisely its share of the damages, $798,000
(38% of $2.1 million).10 A simple application of the pro tanto
approach would allocate River Don $1.1 million in damages
($2.1 million total damages minus the $1 million settle-
ment).11 The Court of Appeals, however, made a different
9 In this opinion, we use the phrase "proportionate share approach" to
denote ALI Option 3. We have deliberately avoided use of the term "pro
rata," which is often used to describe this approach, see, e. g., T. Schoen-
baum, Admiralty and Maritime Law § 4Â15, p. 153 (1987), because that
term is also used to describe an equal allocation among all defendants
without regard to their relative responsibility for the loss. See In re Mas-
ters Mates & Pilots Pension Plan and IRAP Litigation, 957 F. 2d 1020,
1028 (CA2 1992); Silver, Contribution Under the Securities Acts: The Pro
Rata Method Revisited, 1992/1993 Ann. Survey Am. L. 273. Others have
used different terms to describe the approach adopted here. Ibid. ("pro-
portionate method"); Kornhauser & Revesz, Settlements Under Joint and
Several Liability, 68 N. Y. U. L. Rev. 427, 438 (1993) ("apportioned share
set-off rule"); Polinsky & Shavell, Contribution and Claim Reduction
Among Antitrust Defendants: An Economic Analysis, 33 Stan. L. Rev. 447
(1981) ("claim reduction").
10 It might be thought that, since AmClyde is immune from damages,
River Don's liability should be $1.47 million (McDermott's $2.1 million loss
minus 30% of $2.1 million, the share of liability attributed to the settling
defendants and McDermott). This calculation would make River Don
responsible not only for its own 38% share, but also for the 32% of the
damages allocated by the jury to AmClyde. This result could be seen
as mandated by principles of joint and several liability and by Edmonds
v. Compagnie Generale Transatlantique, 443 U. S. 256 (1979). See infra,
at 220Â221. Nevertheless, McDermott has not requested that River Don
pay any more than its 38% share of the damages. AmClyde is immune
from damages because its contract with McDermott provided that free
replacement of defective parts "shall constitute fulfillment of all liabilities
. . . whether based upon Contract, tort, strict liability or otherwise." 979
F. 2d 1068, 1075 (CA5 1993) (emphasis omitted). The best way of viewing
this contractual provision is as a quasi settlement in advance of any tort
claims. Viewed as such, the proportionate credit in this case properly
takes into account both the 30% of liability apportioned to the settling
defendants (and McDermott) and the 32% allocated to AmClyde. This
leaves River Don with $798,000 or 38% of the damages.
11 For simplicity, we ignore AmClyde, which was found to be immune
from damages by the Court of Appeals. Id., at 1075Â1076. No party
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Cite as: 511 U. S. 202 (1994) 211
Opinion of the Court
calculation. Because McDermott "accepted responsibility
for any part the sling played in causing the damage," 979
F. 2d, at 1070, the Court of Appeals treated the 30% of liabil-
ity apportioned to "McDermott/sling defendants" as if that
30% had been caused solely by McDermott's own negligence.
Id., at 1081. The Court of Appeals, therefore, gave River
Don a double credit, first reducing the total loss by the
McDermott/sling defendants' proportionate share and
then applying the full pro tanto reduction to that amount.
This double credit resulted in an award of only $470,000 ($2.1
million minus 30% of $2.1 million minus $1 million).12
III
In choosing among the ALI's three alternatives, three con-
siderations are paramount: consistency with the proportion-
ate fault approach of United States v. Reliable Transfer, 421
U. S. 397 (1975), promotion of settlement, and judicial econ-
omy. ALI Option 1, pro tanto setoff with right of contribu-
tion against the settling defendant, is clearly inferior to the
other two, because it discourages settlement and leads to
unnecessary ancillary litigation. It discourages settlement,
because settlement can only disadvantage the settling de-
fendant.13 If a defendant makes a favorable settlement, in
appeals that holding. Although AmClyde spent a considerable amount
replacing the defective hook, River Don does not argue that that amount
should be included in the calculation of its liability.
12 Whether the Court of Appeals correctly applied the pro tanto rule in
the context of McDermott's acceptance of responsibility for the sling dam-
ages is a difficult question. Fortunately, since we adopt the proportionate
share approach, we need not answer it.
13 Uniform Contribution Among Tortfeasors Act § 4 (1955 Revised Act),
Commissioners' Comment, 12 U. L. A. 99 (1975); Kornhauser & Revesz, 68
N. Y. U. L. Rev., at 474; Polinsky & Shavell, 33 Stan. L. Rev., at 458Â459,
462, 463. This argument assumes, in accordance with the law of most
jurisdictions, that a settling defendant ordinarily has no right of contribu-
tion against other defendants. See Uniform Contribution Against Tort-
feasors Act § 1(d), 12 U. L. A. 63 (1975); Uniform Comparative Fault Act
§ 4(b), 12 U. L. A. 54 (1993 Supp.); Restatement (Second) of Torts § 886A(2)
and Comment f, pp. 337, 339 (1977).
511us1$37I 11-03-97 17:39:47 PAGES OPINPGT
212 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
which it pays less than the amount a court later determines
is its share of liability, the other defendant (or defendants)
can sue the settling defendant for contribution. The set-
tling defendant thereby loses the benefit of its favorable set-
tlement. In addition, the claim for contribution burdens the
courts with additional litigation. The plaintiff can mitigate
the adverse effect on settlement by promising to indemnify
the settling defendant against contribution, as McDermott
did here. This indemnity, while removing the disincentive
to settlement, adds yet another potential burden on the
courts, an indemnity action between the settling defendant
and plaintiff.
The choice between ALI Options 2 and 3, between the pro
tanto rule without contribution against the settling tortfea-
sor and the proportionate share approach, is less clear. The
proportionate share rule is more consistent with Reliable
Transfer, because a litigating defendant ordinarily pays only
its proportionate share of the judgment. Under the pro
tanto approach, however, a litigating defendant's liability
will frequently differ from its equitable share, because a set-
tlement with one defendant for less than its equitable share
requires the nonsettling defendant to pay more than its
share.14 Such deviations from the equitable apportionment
14 Suppose, for example, that a plaintiff sues two defendants, each
equally responsible, and settles with one for $250,000. At trial, the non-
settling defendant is found liable, and plaintiff's damages are assessed at
$1 million. Under the pro tanto rule, the nonsettling defendant would be
liable for 75% of the damages ($750,000, which is $1 million minus
$250,000). The litigating defendant is thus responsible for far more than
its proportionate share of the damages. It is also possible for the pro
tanto rule to result in the nonsettlor paying less than its apportioned
share, if, as in this case, the settlement is greater than the amount later
determined by the court to be the settlors' equitable share. For a more
complex example illustrating the potential for unfairness under the pro
tanto rule when the parties are not equally at fault, see Kornhauser &
Revesz, 68 N. Y. U. L. Rev., at 455Â456 (pro tanto rule can lead to defend-
ant responsible for 75% of damages paying only 37.5% of loss, while 25%
responsible defendant pays 31.25%).
511us1$37I 11-03-97 17:39:48 PAGES OPINPGT
Cite as: 511 U. S. 202 (1994) 213
Opinion of the Court
of damages will be common, because settlements seldom re-
flect an entirely accurate prediction of the outcome of a trial.
Moreover, the settlement figure is likely to be significantly
less than the settling defendant's equitable share of the loss,
because settlement reflects the uncertainty of trial and pro-
vides the plaintiff with a "war chest" with which to finance
the litigation against the remaining defendants. Courts and
legislatures have recognized this potential for unfairness and
have required "good-faith hearings" as a remedy.15 When
such hearings are required, the settling defendant is pro-
tected against contribution actions only if it shows that the
settlement is a fair forecast of its equitable share of the judg-
ment.16 Nevertheless, good-faith hearings cannot fully re-
move the potential for inequitable allocation of liability.17
First, to serve their protective function effectively, such
hearings would have to be minitrials on the merits, but in
practice they are often quite cursory.18 More fundamentally,
even if the judge at a good-faith hearing were able to make
a perfect forecast of the allocation of liability at trial, there
might still be substantial unfairness when the plaintiff's suc-
15 In re Masters Mates & Pilots Pension Plan and IRAP Litigation,
957 F. 2d 1020 (CA2 1992); Miller v. Christopher, 887 F. 2d 902, 906Â907
(CA9 1989); Tech-Bilt, Inc. v. Woodward-Clyde & Assocs., 38 Cal. 3d 488,
698 P. 2d 159 (1985); Uniform Contribution Among Tortfeasors Act § 4
(1955 Revised Act), 12 U. L. A. 98 (1975) (enacted as statute law in 19
States, 12 U. L. A. 81 (1993 Supp.)).
16 Tech-Bilt, Inc., 38 Cal. 3d, at 499, 698 P. 2d, at 166; Miller, 887 F. 2d,
at 907; In re Masters, 957 F. 2d, at 1031; but see Noyes v. Raymond, 28
Mass. App. 186, 190, 548 N. E. 2d 196, 199 (1990) (judge in good-faith
hearing should not scrutinize the settlement amount, but merely look for
"collusion, fraud, dishonesty, and other wrongful conduct").
17 Franklin v. Kaypro Corp., 884 F. 2d 1222, 1230 (CA9 1989).
18 Tech-Bilt, 38 Cal. 3d, at 500, 698 P. 2d, at 167 ("[T]he determination of
good faith can be made by the court on the basis of affidavits"); TBG Inc.
v. Bendis, 811 F. Supp. 596, 605, n. 17, 608 (Kan. 1992) (no "mini trial"
required; settlement amount is "best available measure of liability").
511us1$37I 11-03-97 17:39:48 PAGES OPINPGT
214 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
cess at trial is uncertain.19 In sum, the pro tanto approach,
even when supplemented with good-faith hearings, is likely
to lead to inequitable apportionments of liability, contrary to
Reliable Transfer.
The effect of the two rules on settlements is more ambigu-
ous. Sometimes the pro tanto approach will better promote
settlement.20 This beneficial effect, however, is a conse-
19 Suppose again, as in footnote 14, that plaintiff sues two equally culpa-
ble defendants for $1 million and settles with one for $250,000. At the
good-faith hearing, the settling defendant persuasively demonstrates that
the settlement is in good faith, because it shows that its share of liability
is 50% and that plaintiff has only a 50% chance of prevailing at trial. The
settlement thus reflects exactly the settling defendant's expected liability.
If plaintiff prevails at trial, the nonsettling defendant will again be liable
for 75% of the judgment even though its equitable share is only 50%. The
only way to avoid this inequity is for the judge at the good-faith hearing
to disallow any settlement for less than $500,000, that is, any settlement
which takes into account the uncertainty of recovery at trial. Such a
policy, however, carries a grave cost. It would make settlement extraor-
dinarily difficult, if not impossible, in most cases. As a result, every juris-
diction that conducts a good-faith inquiry into the amount of the settle-
ment takes into account the uncertainty of recovery at trial. Miller, 887
F. 2d, at 907Â908; Tech-Bilt, 38 Cal. 3d, at 499, 698 P. 2d, at 166; TBG Inc.,
811 F. Supp., at 600.
20 Illustration of the beneficial effects of the pro tanto rule requires sub-
stantial simplifying assumptions. Suppose, for example, that all parties
are risk neutral, that litigation is costless, and that there are only two
defendants. In addition, suppose everyone agrees that the damages are
$100, that if one defendant is found liable, the other one will also be found
liable, and that if the defendants are liable, each will be apportioned 50%
of the damages. And suppose, as frequently happens, that the plaintiff is
more optimistic about his chances of prevailing than the defendants: Plain-
tiff thinks his chances of winning are 60%, whereas the defendants think
the plaintiff's chances are only 50%. In this case, under the proportionate
setoff rule, settlement is unlikely, because the plaintiff would be reluctant
to accept less than $30 (60% times 50% of $100) from each defendant,
whereas neither defendant would be disposed to offer more than $25 (50%
times 50% of $100). On the other hand, under the pro tanto rule, the
plaintiff would be willing to accept a $25 settlement offer, because he
would believe he had a 60% chance of recovering $75 ($100 minus the $25
settlement) at trial from the other defendant. Accepting the $25 settle-
ment offer would give the plaintiff an expected recovery of $70 ($25 plus
511us1$37I 11-03-97 17:39:48 PAGES OPINPGT
Cite as: 511 U. S. 202 (1994) 215
Opinion of the Court
quence of the inequity discussed above. The rule encour-
ages settlements by giving the defendant that settles first an
opportunity to pay less than its fair share of the damages,
thereby threatening the nonsettling defendant with the pros-
pect of paying more than its fair share of the loss. By disad-
vantaging the party that spurns settlement offers, the pro
tanto rule puts pressure on all defendants to settle.21 While
public policy wisely encourages settlements, such additional
pressure to settle is unnecessary. The parties' desire to
avoid litigation costs, to reduce uncertainty, and to maintain
ongoing commercial relationships is sufficient to ensure non-
trial dispositions in the vast majority of cases.22 Under the
proportionate share approach, such factors should ensure a
similarly high settlement rate. The additional incentive to
settlement provided by the pro tanto rule comes at too high
a price in unfairness.23 Furthermore, any conclusion that
the pro tanto rule generally encourages more settlements
requires many simplifying assumptions, such as low litiga-
tion costs. Recognition of the reality that a host of practical
60% of $75), which is more than the $60 (60% of $100) the plaintiff would
expect if he went to trial against both defendants. For a more thorough
discussion of settlement under the pro tanto rule, see Kornhauser & Re-
vesz, 68 N. Y. U. L. Rev., at 447Â465.
21 See H. Hovenkamp, Economics and Federal Antitrust Law § 14.6,
p. 377 (1985), summarizing Easterbrook, Landes, & Posner, Contribution
among Antitrust Defendants: A Legal and Economic Analysis, 23 J. Law &
Econ. 331, 353Â360 (1980).
22 Less than 5% of cases filed in federal court end in trial. Administra-
tive Office of United States Courts, Annual Report of the Director, 186,
217 (1991) (Of 211,713 civil cases terminated between July 1, 1990, and
June 30, 1991, only 11,024 involved trials). Although some of the nontrial
terminations are the result of pretrial adjudications, such as summary
judgments and contested motions to dismiss, the bulk of the nontrial ter-
minations reflect settlements. Kritzer, Adjudication to Settlement: Shad-
ing in the Gray, 70 Judicature 161, 163Â164 (1986).
23 United States v. Reliable Transfer Co., 421 U. S. 397, 408 (1975)
("Congestion in the courts cannot justify a legal rule that produces
unjust results in litigation simply to encourage speedy out-of-court
accommodations").
511us1$37I 11-03-97 17:39:48 PAGES OPINPGT
216 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
considerations may be more significant than stark hypotheti-
cals persuades us that the pro tanto rule has no clear advan-
tage in promoting settlements.24
The effect of the two rules on judicial economy is also am-
biguous. The pro tanto rule, if adopted without the require-
ment of a good-faith hearing, would be easier to administer,
because the relative fault 25 of the settling defendant would
not have to be adjudicated either at a preliminary hearing
or at trial. Nevertheless, because of the large potential for
unfairness, no party or amicus in this suit advocates the pro
tanto rule untamed by good-faith hearings. Once the pro
tanto rule is coupled with a good-faith hearing, however, it is
difficult to determine whether the pro tanto or proportionate
share approach best promotes judicial economy. Under
either approach, the relative fault of the parties will have to
24 An excellent discussion of the effect of the various rules on settlement
is Kornhauser & Revesz, Settlement Under Joint and Several Liability, 68
N. Y. U. L. Rev. 427 (1993). After considering the effects of strategic
behavior, litigation costs, and whether the probabilities of the defendants'
being found liable at trial are "independent" or "correlated," they conclude
that "neither rule is consistently better than the other." Id., at 492. In
addition, in comparing the pro tanto and proportionate share rules, they
generally assume that the pro tanto rule is implemented without good-
faith hearings. Good-faith hearings, however, "mak[e] the pro tanto set-
off rule relatively less desirable from the perspective of inducing settle-
ments than the apportioned [i. e. proportionate] share set-off rule." Id.,
at 476. Moreover, the pro tanto rule contains a unique disincentive to
settlement in cases, like this one, in which the settlement covers more
items of damage than the litigated judgment. McDermott argued that
the settlement covered damage both to the crane and to the deck, whereas
the judgment against River Don related only to the deck. The Court of
Appeals refused to apportion the settlement between deck damages and
crane damages and to credit River Don only with that portion related to
deck damages. 979 F. 2d, at 1080. This refusal to apportion will greatly
discourage settlement, because parties like McDermott will be unable to
recover their full damages if they settle with one party.
25 By referring to the relative fault of the parties, we express no disap-
proval of the lower courts' use of relative "causation" to allocate damages.
See 979 F. 2d, at 1081Â1082.
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Opinion of the Court
be determined. Under the pro tanto approach, the settling
defendant's share of responsibility will have to be ascer-
tained at a separate, pretrial hearing. Under the propor-
tionate share approach, the allocation will take place at trial.
The pro tanto approach will, therefore, save judicial time
only if the good-faith hearing is quicker than the allocation
of fault at trial. Given the cursory nature of most good-faith
hearings, this may well be true. On the other hand, there
is reason to believe that reserving the apportionment of lia-
bility for trial may save more time. First, the remaining
defendant (or defendants) may settle before trial, thus mak-
ing any determination of relative culpability unnecessary.
In addition, the apportionment of damages required by the
proportionate share rule may require little or no additional
trial time. The parties will often need to describe the
settling defendant's role in order to provide context for the
dispute. Furthermore, a defendant will often argue the
"empty chair" in the hope of convincing the jury that the
settling party was exclusively responsible for the damage.
The pro tanto rule thus has no clear advantage with respect
to judicial economy.26
In sum, although the arguments for the two approaches
are closely matched, we are persuaded that the proportion-
ate share approach is superior, especially in its consistency
with Reliable Transfer.
26 A further cost of the pro tanto rule would be incurred in cases in
which the settlement covered more items of damage than the judgment.
See n. 24, supra. To avoid discouraging settlement, the judge would have
to figure out what proportion of the settlement related to damages covered
by the judgment and what percentage related to damages covered only by
the settlement. Presumably this allocation would be done by comparing
the settling defendant's liability for the damages to be covered by the
judgment to those not so covered. Ascertaining the liability of a settling
defendant for damages not otherwise litigated at trial would be at least as
difficult as ascertaining an absent defendant's responsibility for damages
already the subject of litigation.
511us1$37I 11-03-97 17:39:48 PAGES OPINPGT
218 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
IV
Respondents advance two additional arguments against
the proportionate share approach: that it violates the "one
satisfaction rule" and that it is inconsistent with Edmonds v.
Compagnie Generale Transatlantique, 443 U. S. 256 (1979).
In the 19th and early 20th centuries, the "one satisfaction
rule" barred a plaintiff from litigating against one joint tort-
feasor, if he had settled with and released another.27 This
version of the one satisfaction rule has been thoroughly re-
pudiated.28 Respondents do not ask that the one satisfac-
tion rule be applied with its original strictness, but rather in
the milder form in which some courts still invoke it to reduce
a plaintiff's recovery against a nonsettling defendant in order
to ensure that the plaintiff does not secure more than neces-
sary to compensate him for his loss.29 As a preliminary mat-
ter, it is far from clear that there was any danger of super-
compensatory damages here. First, there is the question of
the crane damages, which were not covered by the judgment
against River Don. In addition, even limiting consideration
to deck damages, the jury fixed plaintiff's losses at $2.1 mil-
lion. Plaintiff received $1 million in settlement from the
sling defendants. Under the proportionate share approach,
plaintiff would receive an additional $798,000 from River
Don. In total, plaintiff would recover only $1.798 million,
over $300,000 less than its damages. The one satisfaction
rule comes into play only if one assumes that the percent
share of liability apportioned to McDermott and the sling
defendants really represented McDermott's contributory
27 Conway v. Pottsville Union Traction Co., 253 Pa. 211, 97 A. 1058
(1916); Rogers v. Cox, 66 N. J. L. 432, 50 A. 143 (1901); W. Prosser, Law of
Torts § 109, pp. 1105Â1111 (1941).
28 W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on
Law of Torts § 49, pp. 333Â334 (5th ed. 1984); Restatement (Second) of
Torts § 885(1), Comment b, at 334.
29 Rose v. Associated Anesthesiologists, 501 F. 2d 806, 809 (CADC 1974);
Sanders v. Cole Municipal Finance, 489 N. E. 2d 117, 120 (Ind. App. 1986).
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Cite as: 511 U. S. 202 (1994) 219
Opinion of the Court
fault, and that it would be overcompensatory for McDermott
to receive more than the percentage of the total loss allo-
cated to the defendants, here $1.47 million (70% of $2.1
million).
Even if the Court of Appeals were correct in finding that
the proportionate share approach would overcompensate Mc-
Dermott, we would not apply the one satisfaction rule. The
law contains no rigid rule against overcompensation. Sev-
eral doctrines, such as the collateral benefits rule,30 recognize
that making tortfeasors pay for the damage they cause can
be more important than preventing overcompensation. In
this case, any excess recovery is entirely attributable to the
fact that the sling defendants may have made an unwise set-
tlement. It seems probable that in most cases in which
there is a partial settlement, the plaintiff is more apt to ac-
cept less than the proportionate share that the jury might
later assess against the settling defendant, because of the
uncertainty of recovery at the time of settlement negotia-
tions and because the first settlement normally improves the
plaintiff's litigating posture against the nonsettlors. In such
cases, the entire burden of applying a proportionate share
rule would rest on the plaintiff, and the interest in avoiding
overcompensation would be absent. More fundamentally,
we must recognize that settlements frequently result in the
plaintiff's getting more than he would have been entitled to
at trial. Because settlement amounts are based on rough
estimates of liability, anticipated savings in litigation costs,
and a host of other factors, they will rarely match exactly
30 See 4 F. Harper, F. James, & O. Gray, Law of Torts § 25.22 (2d ed.
1986) (injured person can recover full damages from tortfeasor, even when
he has already been made whole by insurance or other compensatory pay-
ment); Restatement (Second) of Torts § 920A(2) (1977). The one satisfac-
tion rule once applied to compensatory payments by nonparties as well,
thus preventing or diminishing recovery in many situations in which the
collateral benefits rules would now permit full judgment against the tort-
feasor. W. Prosser, Law of Torts § 109, pp. 1105Â1107 (1941).
511us1$37I 11-03-97 17:39:48 PAGES OPINPGT
220 McDERMOTT, INC. v. AmCLYDE
Opinion of the Court
the amounts a trier of fact would have set. It seems to us
that a plaintiff's good fortune in striking a favorable bargain
with one defendant gives other defendants no claim to pay
less than their proportionate share of the total loss. In fact,
one of the virtues of the proportionate share rule is that,
unlike the pro tanto rule, it does not make a litigating de-
fendant's liability dependent on the amount of a settlement
negotiated by others without regard to its interests.
Respondents also argue that the proportionate share rule
is inconsistent with Edmonds v. Compagnie Generale Trans-
atlantique, 443 U. S. 256 (1979). In that case, we refused to
reduce the judgment against a shipowner by the proportion-
ate fault attributed to a stevedore whose liability was limited
by the Longshoremen's and Harbor Workers' Compensation
Act. Instead, the Court allowed the plaintiff to collect from
the shipowner the entirety of his damages, after adjusting
for the plaintiff's own negligence. There is no inconsistency
between that result and the rule announced in this opinion.
Edmonds was primarily a statutory construction case and
related to special interpretive questions posed by the 1972
amendments to the Longshoremen's and Harbor Workers'
Compensation Act. Both parties acknowledge that this case
must be resolved by judge-made rules of law. Moreover,
Edmonds did not address the issue in this case, the effect of
a settlement on nonsettling defendants. Indeed, there was
no settlement in that case. Instead, one can read that opin-
ion as merely reaffirming the well-established principle of
joint and several liability. As the Court pointed out, that
principle was in no way abrogated by Reliable Transfer's
proportionate fault approach. Edmonds, 443 U. S., at 271Â
272, n. 30. In addition, as the Commissioners on Uniform
State Laws have noted, there is no tension between joint
and several liability and a proportionate share approach to
settlements.31 Joint and several liability applies when there
31 Uniform Comparative Fault Act § 2, Comment "Joint and Several Lia-
bility and Equitable Shares of the Obligation," 12 U. L. A. 51 (1993 Supp.).
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Cite as: 511 U. S. 202 (1994) 221
Opinion of the Court
has been a judgment against multiple defendants. It can
result in one defendant's paying more than its apportioned
share of liability when the plaintiff's recovery from other de-
fendants is limited by factors beyond the plaintiff's control,
such as a defendant's insolvency. When the limitations on
the plaintiff's recovery arise from outside forces, joint and
several liability makes the other defendants, rather than an
innocent plaintiff, responsible for the shortfall. Ibid.32 Un-
like the rule in Edmonds, the proportionate share rule an-
nounced in this opinion applies when there has been a settle-
ment. In such cases, the plaintiff's recovery against the
settling defendant has been limited not by outside forces, but
by its own agreement to settle. There is no reason to allo-
cate any shortfall to the other defendants, who were not par-
ties to the settlement. Just as the other defendants are not
entitled to a reduction in liability when the plaintiff negoti-
ates a generous settlement, see supra, at 219Â220, so they
are not required to shoulder disproportionate liability when
the plaintiff negotiates a meager one.
V
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.
32 See also Uniform Comparative Fault Act § 2 (reallocation of insolvent
defendant's equitable share), id., at 50.
511us1$38z 11-03-97 17:40:36 PAGES OPINPGT
222 OCTOBER TERM, 1993
Opinion of the Court
BOCA GRANDE CLUB, INC. v. FLORIDA POWER &
LIGHT CO., INC.
certiorari to the united states court of appeals for
the eleventh circuit
No. 93Â180. Argued January 11, 1994-Decided April 20, 1994
Held: The judgment is vacated and the case remanded for further pro-
ceedings consistent with McDermott, Inc. v. AmClyde, ante, p. 202,
which adopts the proportionate share rule, under which actions for con-
tribution against settling defendants are neither necessary nor permit-
ted. Pp. 222Â223.
990 F. 2d 606, vacated and remanded.
Stevens, J., delivered the opinion for a unanimous Court.
David F. Pope argued the cause for petitioner. With him
on the briefs was Jack C. Rinard.
Ronald J. Mann argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were Solicitor General Days, Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, and Richard
A. Olderman.
Stuart C. Markman argued the cause for respondent.
With him on the briefs were James E. Felman, C. Steven
Yerrid, and Christopher S. Knopik.*
Justice Stevens delivered the opinion of the Court.
We granted certiorari, 509 U. S. 953 (1993), to consider the
question whether, in an action against several alleged joint
*Briefs of amicus curiae urging reversal were filed for the Maritime
Law Association of the United States by Warren B. Daly, Jr., and George
W. Healy III; and for the National Association of Securities and Commer-
cial Law Attorneys by William S. Lerach, Leonard B. Simon, and Kevin
P. Roddy.
Kathryn A. Oberly, Carl D. Liggio, Jon N. Ekdahl, Harris J. Amhowitz,
Howard J. Krongard, Edwin D. Scott, and Eldon Olson filed a brief for
Arthur Andersen & Co. et al. as amici curiae urging affirmance.
511us1$38I 11-03-97 17:40:36 PAGES OPINPGT
Cite as: 511 U. S. 222 (1994) 223
Opinion of the Court
tortfeasors under general maritime law, the plaintiff's settle-
ment with one defendant bars a claim for contribution
brought by nonsettling defendants against the settling de-
fendant. Because the opinion that we announce today in
McDermott, Inc. v. AmClyde, ante, p. 202, adopts the propor-
tionate share rule, under which actions for contribution
against settling defendants are neither necessary nor permit-
ted, we vacate the judgment of the Court of Appeals and
remand the case for further proceedings consistent with
that opinion.
It is so ordered.
511us1$39z 11-03-97 17:42:52 PAGES OPINPGT
224 OCTOBER TERM, 1993
Syllabus
UNITED STATES v. IRVINE et al.
certiorari to the united states court of appeals for
the eighth circuit
No. 92Â1546. Argued December 6, 1993-Decided April 20, 1994
As a result of Sally Ordway Irvine's 1979 disclaimer of five-sixteenths of
her interest in the corpus of a recently terminated trust that had been
created by her grandfather in 1917, each of her five children received
one-sixteenth of her share of the distributed trust principal. Her dis-
claimer was effective under Minnesota law even though she had learned
of her contingent interest in the trust at least as early as 1931 when
she became 21, but the Internal Revenue Service determined that the
disclaimer brought about a gratuitous transfer that was subject to fed-
eral gift tax under Internal Revenue Code §§ 2501(a)(1) and 2511(a).
Mrs. Irvine died after she paid the tax and accrued interest, and re-
spondents, representing her estate, filed this refund action. Arguing
that the transaction was not excepted from gift tax under Treasury
Regulation § 25.2511Â1(c)(2) (Regulation), the Government relied on
Jewett v. Commissioner, 455 U. S. 305, in which this Court construed
the 1958 version of the Regulation to provide that the disclaimer of a
remainder interest in a trust effects a taxable gift to the beneficiary
of the disclaimer unless the disclaimant acts within a reasonable time
after learning of the transfer that created the interest being disclaimed.
Respondents attempted to distinguish Jewett as having dealt with a
trust established in 1939, after the creation of the gift tax by the Reve-
nue Act of 1932 (Act). The District Court ruled for respondents on
cross-motions for summary judgment. The Court of Appeals affirmed,
holding that the Regulation's express terms rendered it inapplicable to
the trust in question; that state law therefore governed, and the federal
gift tax did not apply because Mrs. Irvine's disclaimer was indisputably
valid under state law; and that taxation of the transfer effected by
the disclaimer would violate the Act's prohibition of retroactive gift
taxation.
Held: The disclaimer of a remainder interest in a trust is subject to fed-
eral gift taxation when the creation of the interest (but not the dis-
claimer) occurred before enactment of the gift tax. Pp. 232Â242.
(a) Although the Internal Revenue Code's gift tax provisions embrace
all gratuitous transfers of property having significant value, the Regula-
tion affords an exception by providing that a disclaimer of property
511us1$39z 11-03-97 17:42:52 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 225
Syllabus
transferred from a decedent's estate does not result in a gift if it is
unequivocal and effective under local law, and made "within a reasonable
time after knowledge of the existence of the transfer." The Jewett
Court held that "the transfer" in the 1958 version of the Regulation
refers to the creation of the interest being disclaimed, with the "reason-
able time" therefore beginning to run upon knowledge of the creation
of the trust. Pp. 232Â234.
(b) If the Regulation applies to Mrs. Irvine's disclaimer, her act re-
sulted in taxable gifts. The knowledge and capacity to act, which are
presupposed by the requirement that a tax-free disclaimer be made
within a reasonable time of the disclaimant's knowledge of the transfer
of the interest to her, were present in this instance at least as early as
Mrs. Irvine's 21st birthday in 1931. Although there is no bright-line
rule for timeliness in the absence of a statute or regulation providing
one, Mrs. Irvine's delay for at least 47 years in making her disclaimer
could not possibly be thought reasonable. Pp. 234Â236.
(c) Respondents' arguments that the Regulation is inapposite by its
own terms to the facts of this case need not be resolved here, for the
result of the Regulation's inapplicability would not be, as respondents
claim, a freedom from gift taxation on a theory of borrowed state law.
State property transfer rules do not translate into federal taxation rules
because the principles underlying the two look to different objects. In
order to defeat the claims of a disclaimant's creditors in the disclaimed
property, the state rules apply the legal fiction that an effective dis-
claimer of a testamentary gift cancels the transfer to the disclaimant ab
initio and substitutes a single transfer from the original donor to the
disclaimant's beneficiary. In contrast, Congress enacted the gift tax as
a supplement to the federal estate tax and a means of curbing estate
tax avoidance. Since the reasons for defeating a disclaimant's creditors
would furnish no reasons for defeating the gift tax, the Court in Jewett,
supra, at 317, was undoubtedly correct to hold that Congress had not
meant to incorporate state-law fictions as touchstones of taxability when
it enacted the Act. Absent such a legal fiction, the federal gift tax is
not struck blind by a disclaimer. Pp. 236Â240.
(d) Taxation of the transfer following Mrs. Irvine's disclaimer would
not violate § 501(b) of the Act, which provided that it would "not apply
to a transfer made on or before the date of the enactment of this Act
[June 6, 1932]." Section 501 merely prohibited application of the gift
tax statute to transfers antedating the enactment of the Act; it did not
prohibit taxation where, as here, interests created before the Act were
transferred after enactment. Pp. 240Â241.
981 F. 2d 991, reversed.
511us1$39z 11-03-97 17:42:52 PAGES OPINPGT
226 UNITED STATES v. IRVINE
Opinion of the Court
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O'Connor, Kennedy, Thomas, and Ginsburg, JJ.,
joined, and in which Scalia, J., joined except as to Part IIIÂA. Scalia,
J., filed an opinion concurring in part and concurring in the judgment, post,
p. 242. Blackmun, J., took no part in the decision of the case.
Kent L. Jones argued the cause for the United States.
With him on the briefs were Solicitor General Days, Acting
Assistant Attorney General Paup, Deputy Solicitor General
Wallace, Jonathan S. Cohen, and Teresa E. McLaughlin.
Phillip H. Martin argued the cause for respondents.
With him on the briefs were Mary J. Streitz, Carol A.
Peterson, and Cole Oehler.*
Justice Souter delivered the opinion of the Court.
In Jewett v. Commissioner, 455 U. S. 305 (1982), we con-
strued the 1958 version of Treasury Regulation § 25.2511Â
1(c) to provide that the disclaimer of a remainder interest
in a trust effects a taxable gift unless the disclaimant
acts within a reasonable time after learning of the transfer
that created the interest. This case presents the question
whether the rule is the same, under current Treasury Regu-
lation § 25.2511Â1(c)(2) (Regulation), when the creation of the
interest (but not the disclaimer) occurred before enactment
of the federal gift tax provisions of the Revenue Act of 1932.
We hold that it is.
I
In 1917, Lucius P. Ordway established an irrevocable inter
vivos family trust, with his wife and their children as pri-
mary concurrent life income beneficiaries, to be succeeded by
unmarried surviving spouses of the children and by grand-
children. The trust was to terminate upon the death of the
last surviving primary income beneficiary, at which time the
*Burton G. Ross, Cynthia S. Rosenblatt, and Robert P. Reznick filed
a brief for John G. Ordway, Jr., et al. as amici curiae urging affirmance.
Geoffrey J. O'Connor filed a brief for the estate of Helen W. Halbach
et al. as amici curiae.
511us1$39M 11-03-97 17:42:52 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 227
Opinion of the Court
corpus would be distributed to Mr. Ordway's surviving
grandchildren and the issue of any grandchildren who had
died before termination. When the trust terminated on
June 27, 1979, the corpus was subject to division into 13
equal shares among 12 grandchildren living and the issue of
one who had died. Prior to distribution, on August 23, 1979,
one of the grandchildren, Sally Ordway Irvine, filed a dis-
claimer of five-sixteenths of her interest in the trust princi-
pal. Mrs. Irvine had learned of her contingent interest in
the trust at least as early as 1931 when she reached the age
of 21, and she had begun receiving a share of the annual trust
income after her father's death in 1966. Her disclaimer was
nonetheless effective under a Minnesota statute on the books
at the time, which permitted the disclaimer of a future inter-
est at any time within six months of the event finally identi-
fying the disclaimant and causing her interest to become in-
defeasibly fixed.1 As a result of her disclaimer, each of Mrs.
Irvine's five children received one-sixteenth of her share of
the distributed trust principal.
Mrs. Irvine reported the disclaimer in a federal gift tax
return, but did not treat it as resulting in a taxable gift.
The Commissioner of Internal Revenue determined on audit
that the disclaimer indirectly transferred property by gift
within the meaning of Internal Revenue Code of 1986
§§ 2501(a)(1) 2 and 2511(a),3 and was not excepted from gift
1 Minn. Stat. § 501.211, subd. 3 (1978), repealed by 1989 Minn. Laws,
ch. 340, art. 1, § 77 (and replaced by Minn. Stat. § 501B.86, subd. 3 (1992)
(changing the time permitted for disclaiming to nine months, effective
January 1, 1990)).
2 "A tax . . . is hereby imposed for each calendar year on the transfer of
property by gift during such calendar year by any individual resident or
nonresident." 26 U. S. C. § 2501(a)(1).
3 "Subject to the limitations contained in this chapter, the tax imposed
by section 2501 shall apply whether the transfer is in trust or otherwise,
whether the gift is direct or indirect, and whether the property is real or
personal, tangible or intangible . . . ." 26 U. S. C. § 2511(a).
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
228 UNITED STATES v. IRVINE
Opinion of the Court
tax under Treas. Reg. § 25.2511Â1(c) 4 because it was not
made "within a reasonable time after [Mrs. Irvine's] knowl-
edge" of her grandfather's transfer creating her interest in
the trust estate. Mrs. Irvine responded with an amended
return treating the disclaimer as a taxable gift, on which
she paid the resulting tax of $7,468,671, plus $2,086,627.51 in
accrued interest on the deficiency.5 She then claimed a re-
fund of the tax and interest, which the Internal Revenue
Service denied.
4 The following is the relevant text of the 1958 regulation then in effect:
"The gift tax also applies to gifts indirectly made. Thus, all transac-
tions whereby property or property rights or interests are gratuitously
passed or conferred upon another, regardless of the means or device em-
ployed, constitute gifts subject to tax. See further § 25.2512Â8. Where
the law governing the administration of the decedent's estate gives a bene-
ficiary, heir, or next-of-kin a right to completely and unqualifiedly refuse
to accept ownership of property transferred from a decedent (whether the
transfer is effected by the decedent's will or by the law of descent and
distribution of intestate property), a refusal to accept ownership does not
constitute the making of a gift if the refusal is made within a reasonable
time after knowledge of the existence of the transfer. The refusal must
be unequivocable [sic] and effective under the local law. There can be no
refusal of ownership of property after its acceptance. Where the local
law does not permit such a refusal, any disposition by the beneficiary, heir,
or next-of-kin whereby ownership is transferred gratuitously to another
constitutes the making of a gift by the beneficiary, heir, or next-of-kin.
In any case where a refusal is purported to relate to only a part of the
property, the determination of whether or not there has been a complete
and unqualified refusal to accept ownership will depend on all of the facts
and circumstances in each particular case, taking into account the recogni-
tion and effectiveness of such a purported refusal under the local law. In
the absence of facts to the contrary, if a person fails to refuse to accept a
transfer to him of ownership of a decedent's property within a reasonable
time after learning of the existence of the transfer, he will be presumed
to have accepted the property. . . ." Treas. Reg. § 25.2511Â1(c), 26 CFR
§ 25.2511Â1(c) (1959).
5 Mrs. Irvine was also assessed additional gift tax and penalties in con-
nection with an unrelated gift made in 1980 because her amended gift tax
return for the third quarter of 1979 reduced the amount of unified credit
available to her in the following year. See 26 U. S. C. § 2505 (1988 ed. and
Supp. IV). That assessment is not at issue here.
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 229
Opinion of the Court
After Mrs. Irvine's death in 1987, respondents, represent-
ing her estate, filed this action for refund of the tax and
interest in the United States District Court for the District
of Minnesota. The Government continued to maintain that
the partial disclaimer brought about a transfer subject to
federal gift tax because Mrs. Irvine had not made it, as the
Regulation requires, "within a reasonable time after knowl-
edge of the [earlier] transfer" that created her interest in the
trust estate. The Government relied on Jewett v. Commis-
sioner, 455 U. S. 305 (1982), in which this Court held that the
"transfer" referred to in Treas. Reg. § 25.2511Â1(c), 26 CFR
§ 25.2511Â1(c) (1959) (promulgated in 1958), knowledge of
which starts the clock ticking, occurs at the creation of the
interest being disclaimed, not when its extent is finally ascer-
tained or it becomes possessory. Jewett, supra, at 311Â312.
Respondents tried to distinguish Jewett as having dealt
with a trust established in 1939, after the creation of the gift
tax by the Revenue Act of 1932 (Act), whereas the Ordway
trust had been created before the Act, in 1917. Respond-
ents also argued that the "reasonable time" limitation did
not apply because the pre-Act, 1917 transfer creating the
trust was not a "taxable transfer" of an interest, absent
which the Regulation was inapplicable.6 On cross-motions
6 The 1958 version of the Regulation was in force throughout the period
from Mrs. Irvine's disclaimer to her unsuccessful claim for a refund. The
parties agree, however, that the current (1986) version of the Regulation
supersedes the earlier version and governs this case. See 26 U. S. C.
§ 7805(b) (Secretary of the Treasury "may prescribe the extent, if any, to
which any ruling or regulation, relating to the internal revenue laws, shall
be applied without retroactive effect"); Automobile Club of Mich. v. Com-
missioner, 353 U. S. 180, 184 (1957) (Treasury Regulations may be retroac-
tively applied unless doing so constitutes an abuse of the Secretary's
discretion).
The relevant regulation is now Treas. Reg. § 25.2511Â1(c)(2), 26 CFR
§ 25.2511Â1(c)(2) (1993), which provides in relevant part:
"In the case of taxable transfers creating an interest in the person dis-
claiming made before January 1, 1977, where the law governing the admin-
istration of the decedent's estate gives a beneficiary, heir, or next-of-kin a
right completely and unqualifiedly to refuse to accept ownership of prop-
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
230 UNITED STATES v. IRVINE
Opinion of the Court
for summary judgment, the District Court held that impos-
ing the gift tax on Mrs. Irvine's disclaimer would amount to
retroactive application of the gift tax in violation of the Act's
provision that "[t]he tax shall not apply to a transfer made
on or before the date of the enactment of this Act [June 6,
1932]." Revenue Act of 1932, ch. 209, § 501(b), 47 Stat. 245.
The District Court cited Ordway v. United States, 89Â1
USTC ¶ 13,802 (1989), in which the United States District
Court for the Southern District of Florida had reached the
same conclusion, on virtually identical facts, in a case in-
volving a partial disclaimer by another beneficiary of the
Ordway trust.
A divided panel of the Court of Appeals for the Eighth
Circuit reversed. 936 F. 2d 343 (1991). It rejected the
view that the Regulation is inapplicable to a trust created
before enactment of the gift tax statute simply because the
Regulation reaches only " `taxable transfers creating an
interest in the person disclaiming made before January 1,
1977.' " Id., at 347 (emphasis in original). The Court of
Appeals held that the transfer creating the trust was "tax-
erty transferred from a decedent (whether the transfer is effected by the
decedent's will or by the law of descent and distribution), a refusal to
accept ownership does not constitute the making of a gift if the refusal is
made within a reasonable time after knowledge of the existence of the
transfer. The refusal must be unequivocal and effective under the local
law. There can be no refusal of ownership of property after its accept-
ance. In the absence of the facts to the contrary, if a person fails to refuse
to accept the transfer to him of ownership of a decedent's property within
a reasonable time after learning of the existence of the transfer, he will
be presumed to have accepted the property. Where the local law does
not permit such a refusal, any disposition by the beneficiary, heir, or next-
of-kin whereby ownership is transferred gratuitously to another consti-
tutes the making of a gift by the beneficiary, heir, or next-of-kin. In any
case where a refusal is purported to relate to only a part of the property,
the determination of whether or not there has been a complete and unqual-
ified refusal to accept ownership will depend on all the facts and circum-
stances in each particular case, taking into account the recognition and
effectiveness of such a purported refusal under the local law."
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 231
Opinion of the Court
able," relying on the provision of Treas. Reg. § 25.2518Â
2(c)(3) that " `a taxable transfer occurs when there is a
completed gift for Federal gift tax purposes regardless of
whether a gift tax is imposed on the completed gift.' " 936
F. 2d, at 347Â348. The court adopted the reasoning of its
sister court for the Eleventh Circuit in Ordway v. United
States, 908 F. 2d 890 (1990), which held that a "taxable trans-
fer" occurs within the meaning of the Regulation whenever
there is " `any transaction in which an interest in property is
gratuitously passed or conferred upon another,' even if that
transaction was not subject to the gift tax." Id., at 895
(citation omitted). Applying the Regulation, the Court of
Appeals for the Eighth Circuit held that Mrs. Irvine's dis-
claimer was subject to gift tax because she did not make it
within a reasonable time after she learned of her interest in
the trust. Finally, the divided panel also upheld application
of the Act against the claim of retroactivity, holding it to be
irrelevant that the trust antedated the 1932 enactment of the
Act, since the tax was being imposed on the transfer brought
about by the 1979 disclaimer, not on the inter vivos transfer
that created the trust in 1917. 936 F. 2d, at 346.
Respondents' suggestion for rehearing en banc was
granted, however, and the panel opinion was vacated. Un-
like the panel, the en banc court affirmed the District Court,
holding the Regulation inapplicable because its terms ex-
pressly limit its scope to "taxable transfers . . . made before
January 1, 1977." 981 F. 2d 991 (CA8 1992). The creation
of the Ordway trust in 1917 was not a "taxable transfer," the
court reasoned, because the federal gift tax provisions had
yet to be enacted: "It is fundamental that for a transfer to
be taxable there must be an applicable tax in existence when
the transfer is made. No such federal tax existed on Janu-
ary 16, 1917, when . . . Mrs. Irvine's interest was created."
Id., at 994. Given the inapplicability of the Regulation and
its "reasonable time" requirement for tax-free disclaimer, the
majority held that state law governed the effect of a dis-
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
232 UNITED STATES v. IRVINE
Opinion of the Court
claimer for federal gift tax purposes. See id., at 996 (citing
Hardenbergh v. Commissioner, 198 F. 2d 63 (CA8), cert. de-
nied, 344 U. S. 836 (1952)); 981 F. 2d, at 998 (concurring opin-
ion). Because Mrs. Irvine's disclaimer was indisputably
valid under Minnesota law, the court held that the federal
gift tax did not apply. Finally, the majority rejected the
panel's analysis of retroactive application, indicating that
taxation of the transfer effected by the disclaimer would vio-
late the Act's prohibition of retroactive gift taxation. Id.,
at 994.
In a concurring opinion, id., at 996Â998, Judge Loken also
concluded the Regulation was inapplicable, not because of its
limitation to "taxable transfers," but because it is limited to
interests in "property transferred from a decedent . . . by
the decedent's will or by the law of descent and distribution,"
whereas the Ordway trust came from an inter vivos transfer.
Judge Loken shared the majority view, however, that be-
cause the Regulation was inapplicable, the federal gift tax
consequences of the disclaimer were a function of state law.
The dissent took the position of the majority in the panel
opinion, and of the Eleventh Circuit in Ordway v. United
States, supra. See 981 F. 2d, at 998Â1002.
The conflict prompted us to grant certiorari to determine
whether a disclaimer made after enactment of the gift tax
statute, of an interest created before enactment, is necessar-
ily free of any consequent federal gift taxation. 508 U. S.
971 (1993). We hold that it is not, and reverse.
II
The Internal Revenue Code of 1986 taxes "the transfer
of property by gift," 26 U. S. C. § 2501(a)(1),7 "whether the
transfer is in trust or otherwise, whether the gift is direct
or indirect, and whether the property is real or personal,
tangible or intangible," § 2511(a).8 We have repeatedly em-
7 See n. 2, supra.
8 See n. 3, supra.
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 233
Opinion of the Court
phasized that this comprehensive language was chosen to
embrace all gratuitous transfers, by whatever means, of
property and property rights of significant value. See, e. g.,
Dickman v. Commissioner, 465 U. S. 330, 333Â335 (1984);
Jewett v. Commissioner, 455 U. S., at 309Â310; Smith v.
Shaughnessy, 318 U. S. 176, 180 (1943). We held in Jewett,
supra, at 310, that "the statutory language . . . unquestion-
ably encompasses an indirect transfer, effected by means
of a disclaimer, of a contingent future interest in a trust,"
the practical effect of such a transfer being "to reduce the
expected size of [the taxpayer's] taxable estate and to confer
a gratuitous benefit upon the natural objects of [her]
bounty . . . ."
Treasury Reg. § 25.2511Â1(c)(1) 9 restates the gift tax's
broad scope by providing that the tax is payable on "any
transaction in which an interest in property is gratuitously
passed or conferred upon another, regardless of the means
or device employed . . . ." The Regulation (subsection
1(c)(2)), on the other hand, affords an exception to the gen-
eral rule of taxability, by providing that a disclaimer of prop-
erty transferred by a decedent's will or the law of descent
and distribution does not result in a gift if it is unequivocal
and effective under local law, and made "within a reasonable
time after knowledge of the existence of the transfer." As
9 "The gift tax also applies to gifts indirectly made. Thus, any transac-
tion in which an interest in property is gratuitously passed or conferred
upon another, regardless of the means or device employed, constitutes a
gift subject to tax. See further § 25.2512Â8 relating to transfers for insuf-
ficient consideration. However, in the case of a taxable transfer creating
an interest in the person disclaiming made after December 31, 1976, this
paragraph (c)(1) shall not apply to the donee if, as a result of a qualified
disclaimer by the donee, the property passes to a different donee. Nor
shall it apply to a donor if, as a result of a qualified disclaimer by the
donee, a completed transfer of an interest in property is not effected. See
section 2518 and the corresponding regulations for rules relating to a qual-
ified disclaimer." Treas. Reg. § 25.2511Â1(c)(1), 26 CFR § 25.2511Â1(c)(1)
(1993).
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
234 UNITED STATES v. IRVINE
Opinion of the Court
already noted, the Jewett Court held that "the transfer" in
the 1958 version of the Regulation refers to the creation of
the interest being disclaimed, with the "reasonable time"
therefore beginning to run upon knowledge of the creation
of the trust. See supra, at 229.
III
A
On one point there cannot be any serious dispute, for it is
clear that if the Regulation applies to Mrs. Irvine's dis-
claimer, her act resulted in taxable gifts. The knowledge
and capacity to act, which are presupposed by the require-
ment that a tax-free disclaimer be made within a reasonable
time of the disclaimant's knowledge of the transfer of the
interest to her, were present in this instance at least as early
as Mrs. Irvine's 21st birthday in 1931.10 We need not decide
whether a disclaimer good for gift tax purposes could be re-
quired to have been made before enactment of the gift tax,
for Mrs. Irvine did not disclaim shortly after enactment of
the Act, and the timeliness determination in this case would
be the same whether the reasonable time was calculated
from Mrs. Irvine's first knowledge of the interest (1931) or
from the enactment of the federal gift tax statute (1932).
Moreover, we understand the Government to have conceded
that it would not have contested the timeliness of a dis-
claimer made within a reasonable time after the enactment
of the Act. See Tr. of Oral Arg. 12.
The determination of the amount of "reasonable time" that
remained after Mrs. Irvine learned of the interest and
reached majority status must be based upon the gift tax's
purpose to curb avoidance of the estate tax. We have al-
10 Arguably, occasion and capacity occurred under applicable Minnesota
law in 1928 when Mrs. Irvine became 18 years old, the age of majority
for women at the time. 1866 Minn. Gen. Stat., ch. 59, § 2; see Vlasek v.
Vlasek, 204 Minn. 331, 331Â332, 283 N. W. 489, 490 (1939).
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 235
Opinion of the Court
ready observed, supra, at 233, that "the practical effect of [a
disclaimer like this one is] to reduce the expected size of [the
disclaimant's] taxable estate and to confer a gratuitous bene-
fit upon the natural objects of [her] bounty . . . ." Jewett,
455 U. S., at 310. Accordingly, as the Court said in Jewett,
" `[a]n important, if not the main, purpose of the gift tax was
to prevent or compensate for avoidance of death taxes by
taxing the gifts of property inter vivos which, but for the
gifts, would be subject in its original or converted form
to the tax laid upon transfers at death.' " Ibid. (quoting
Estate of Sanford v. Commissioner, 308 U. S. 39, 44 (1939)).
Hence the capacious language of Internal Revenue Code
§§ 2501(a)(1) and 2511(a), which encompasses all gratuitous
transfers of property and property rights of significant value.
See supra, at 232Â233.
"[T]he passage of time is crucial to the scheme of the gift
tax." Jewett, supra, at 316, n. 17 (internal quotation marks
and citation omitted). The opportunity to disclaim, and
thereby to avoid gift as well as estate taxation, should not
be so long as to provide a virtually unlimited opportunity to
consider estate planning consequences. While a decision to
disclaim even at the earliest opportunity may be made with
appreciation of potential estate tax consequences, the pas-
sage of time puts the prospective disclaimant in a corre-
spondingly superior position to determine whether her need
to enjoy the property (and incur a tax for a subsequent gift
of it or an increased estate tax if she retains it) outweighs
the favorable estate and gift tax consequences of a dis-
claimer. Although there is no bright-line rule for timeliness
in the absence of a statute or regulation providing one, Mrs.
Irvine's delay for at least 47 years after the clock began run-
ning, until she reached age 68, could not possibly be thought
reasonable. By the date of her disclaimer, Mrs. Irvine was
in a position to make a fairly precise determination of the
advantage to be gained by a transfer diminishing her estate
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
236 UNITED STATES v. IRVINE
Opinion of the Court
and its eventual taxation. If her decision were treated as
timely, the requirement for a timely election would have no
bite at all.
B
Respondents would avoid this result on two alternative
grounds. They argue first that by its own terms, the Regu-
lation does not apply on the facts of this case, with the conse-
quence that taxability under the Internal Revenue Code
turns on the efficacy of the disclaimer under state law. Sec-
ond, respondents argue that even if the disclaimer would re-
sult in an otherwise taxable transfer in the absence of the
governing Regulation, the tax on transfer of an interest cre-
ated by an instrument antedating the enactment of the gift
tax statute would be barred by the statutory prohibition of
retroactive application.
1
The question of the Regulation's applicability under its
own terms need not be resolved here, for the result of its
inapplicability would not be freedom from gift taxation on a
theory of borrowed state law or on any other rationale. The
arguments for inapplicability may therefore be shortly
stated, each having been raised at one point or another in
the prior litigation of this case.
The first argument turns on the Regulation's application
to disclaimers of interests created by what it terms "taxable
transfers," a phrase that on its face presupposes some source
of taxability for the transfer. There was, however, no gift
tax when the trust, including its remainder interests, was
created in 1917, and the gift tax provisions of the Act did
not render preenactment transfers taxable.11 The language
is, to say the least, troublesome to the Government's position
that the Regulation applies. The Government responds to
11 See Revenue Act of 1932, ch. 209, § 501(b), 47 Stat. 245 (nonretroactiv-
ity provision).
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 237
Opinion of the Court
the trouble by citing Treas. Reg. § 25.2518Â2(c)(3) 12 (adopted
in 1986, as was the Regulation), which deals with the new
regime (not applicable here) for disclaimers of interests cre-
ated after December 31, 1976,13 and defines "taxable trans-
fer" for its purposes as covering transfers on which no tax
is actually imposed (e. g., because a gift is chargeable against
the current lifetime exemption, 26 U. S. C. § 2503(b)). If this
definition is thought to beg the question, the Government
falls back to the argument that the predecessor regulation
was not limited in application to interests derived from tax-
able transfers, and there was no intent in 1986 to narrow the
scope covered by the 1958 version of the Regulation in any
such way.
The second argument rests on the Regulation's provision
that "the transfer" to which it applies is subject to a timely,
tax-free disclaimer "whether the transfer is effected by the
decedent's will or by the law of descent and distribution,"
but only "where the law governing the administration of the
decedent's estate" gives the recipient of the transferred in-
terest a right to refuse it.14 As against these descriptions of
the transfer's testamentary character, the text says nothing
indicating that a taxable transfer from anyone other than a
decedent may create an interest subject to a disclaimer free
of gift tax. If the text is given its strict reading, then, it
has no application to the interest in question here, which
came into being not from a decedent's transfer by will or
from application of the law of descent and distribution, but
12 Treasury Reg. § 25.2518Â2(c)(3), 26 CFR § 25.2518Â2(c)(3) (1993), pro-
vides in relevant part: "With respect to inter vivos transfers, a taxable
transfer occurs when there is a completed gift for Federal gift tax pur-
poses regardless of whether a gift tax is imposed on the completed gift."
13 Under the new regime, tax-free disclaimers of interests created by
post-1976 transfers may generally be made within nine months after the
disclaimant has learned of the interest and reached the age of 21. See 26
U. S. C. § 2518; Treas. Reg. §§ 25.2518Â1, 25.2518Â2, 26 CFR §§ 25.2518Â1,
25.2518Â2 (1993).
14 See n. 6, supra.
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
238 UNITED STATES v. IRVINE
Opinion of the Court
from Mr. Ordway's transfer during his lifetime, creating an
irrevocable inter vivos trust.15
2
Even assuming the soundness of one or both of these argu-
ments that the Regulation is inapposite, however, the dis-
claimer would not escape federal gift taxation by reference
to state law rules giving effect to the disclaimer as causing a
transfer to the beneficiary next in line. Any such reasoning
would run counter to our holding in Jewett. In rejecting the
argument that the 1958 version of the Regulation was being
applied retroactively to the taxpayer's disadvantage in that
case, the Jewett Court repudiated the "assumption that [the
taxpayer] had a `right' to renounce the interest without tax
consequences that was `taken away' by the 1958 Regulation.
[The taxpayer] never had such a right." Jewett, 455 U. S.,
at 317. Only then did the Jewett Court go on to determine
that the disclaimer at issue did not fall within the exemption
from the gift tax provided by the Regulation, and was conse-
quently taxable. Id., at 312Â316. The Court followed the
general and longstanding rule in federal tax cases that al-
though state law creates legal interests and rights in prop-
erty, federal law determines whether and to what extent
those interests will be taxed. See, e. g., Burnet v. Harmel,
287 U. S. 103, 110 (1932); Morgan v. Commissioner, 309 U. S.
78, 80Â81 (1940); United States v. Mitchell, 403 U. S. 190, 197
(1971). The Court put it this way in United States v. Pelzer,
312 U. S. 399, 402Â403 (1941):
"[T]he revenue laws are to be construed in the light of
their general purpose to establish a nationwide scheme
of taxation uniform in its application. Hence their pro-
15 In direct contrast, the disclaimed interest in Jewett was created by a
testamentary trust, and the disclaimer therefore involved "property trans-
ferred from a decedent . . . by the decedent's will . . . ." Treas. Reg.
§ 25.2511Â1(c)(2), 26 CFR § 25.2511Â1(c)(2) (1993). See Jewett v. Commis-
sioner, 455 U. S. 305, 306 (1982).
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 239
Opinion of the Court
visions are not to be taken as subject to state control or
limitation unless the language or necessary implication
of the section involved makes its application dependent
on state law."
Cases like Jewett and this one illustrate as well as any why
it is that state property transfer rules do not translate into
federal taxation rules. Under state property rules, an effec-
tive disclaimer of a testamentary gift 16 is generally treated
as relating back to the moment of the original transfer of the
interest being disclaimed, having the effect of canceling the
transfer to the disclaimant ab initio and substituting a single
transfer from the original donor to the beneficiary of the dis-
claimer. See, e. g., Schoonover v. Osborne, 193 Iowa 474,
478, 187 N. W. 20, 22 (1922); Seifner v. Weller, 171 S. W. 2d
617, 624 (Mo. 1943); Albany Hosp. v. Hanson, 214 N. Y. 435,
445, 108 N. E. 812, 815 (1915); Burritt v. Silliman, 13 N. Y.
93, 97Â98 (1855); Perkins v. Isley, 224 N. C. 793, 798, 32
S. E. 2d 588, 591 (1945); see also 3 American Law of Property
§ 14.15 (A. Casner ed. 1952). Although a state-law right to
disclaim with such consequences might be thought to follow
from the common-law principle that a gift is a bilateral trans-
action, requiring not only a donor's intent to give, but also a
donee's acceptance, see, e. g., Wallace v. Moore, 219 Ga. 137,
139, 132 S. E. 2d 37, 39 (1963); Gottstein v. Hedges, 210 Iowa
272, 275, 228 N. W. 93, 94 (1929); Pirie v. Le Saulnier, 161
Wis. 503, 507, 154 N. W. 993, 994 (1915); Blanchard v. Shel-
don, 43 Vt. 512, 514 (1871), state-law tolerance for delay in
disclaiming reflects a less theoretical concern. An impor-
16 See Brown v. Routzahn, 63 F. 2d 914, 916 (CA6 1933); 3 American
Law of Property § 14.15 (A. Casner ed. 1952). As to interests created by
intestate succession, state laws generally refused to give effect to dis-
claimers; the traditional rule is that "title to the property of an intestate
passes by force of the rules of law . . . and that those so entitled by law
have no power to prevent the vesting of title in themselves." Harden-
bergh v. Commissioner, 198 F. 2d 63, 66 (CA8), cert. denied, 344 U. S.
836 (1952) (citations omitted).
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
240 UNITED STATES v. IRVINE
Opinion of the Court
tant consequence of treating a disclaimer as an ab initio de-
feasance is that the disclaimant's creditors are barred from
reaching the disclaimed property. See, e. g., Gottstein v.
Hedges, supra. The ab initio disclaimer thus operates as
a legal fiction obviating a more straightforward rule defeat-
ing the claims of a disclaimant's creditors in the property
disclaimed.
The principles underlying the federal gift tax treatment of
disclaimers look to different objects, however. As we have
already stated, Congress enacted the gift tax as a supple-
ment to the estate tax and a means of curbing estate tax
avoidance. See supra, at 234Â235. Since the reasons for
defeating a disclaimant's creditors would furnish no reasons
for defeating the gift tax as well, the Jewett Court was un-
doubtedly correct to hold that Congress had not meant to
incorporate state-law fictions as touchstones of taxability
when it enacted the Act. Absent such a legal fiction, the
federal gift tax is not struck blind by a disclaimer. And
as we have already stated, supra, at 233, without the excep-
tion afforded in the Regulation,17 the gift tax statute pro-
vides a general rule of taxability for disclaimers such as
Mrs. Irvine's.
IV
Presumably to ward off any attack on the federal gift tax
resting on the possibility that its retroactive application
would violate due process, see Untermyer v. Anderson, 276
U. S. 440 (1928), § 501(b) of the Act provided that it would
"not apply to a transfer made on or before the date of the
enactment of this Act [June 6, 1932]." Revenue Act of 1932,
ch. 209, § 501(b), 47 Stat. 245. The same provision has in
substance been carried forward to this day.18 Respondents
argue that even if the Regulation applies, or taxation would
17 Respondents challenge the Regulation's validity only insofar as it
would allegedly sanction a retroactive application of gift tax. See infra,
at 241.
18 See 26 U. S. C. § 2502(b).
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 241
Opinion of the Court
otherwise be authorized, taxation of the transfer following
Mrs. Irvine's disclaimer would violate this limitation. The
language that respondents use to frame this claim reveals
the flaw in their position. Respondents argue that "[t]he
government's interpretation of the 1986 Regulation to apply
to interests created before enactment of the Act [i. e., to re-
sult in taxability] would be a retroactive application of the
Act clearly contrary to Congressional intent." Brief for
Respondents 26. But § 501 merely prohibited application of
the gift tax statute to transfers antedating the enactment of
the Act; it did not prohibit taxation when interests created
before the Act were transferred after enactment. Such
postenactment transfers are all that happened on the occa-
sion of Mrs. Irvine's disclaimer. The critical events, the
transfers of fractional portions of Mrs. Irvine's remainder to
her children, occurred after enactment of the gift tax, though
the interests transferred were created before that date. To
argue otherwise, that the transfer to be taxed antedated the
Act, would be to cling to the legal fiction that the disclaimer
related back to the moment in 1917 when Lucius P. Ordway
established the trust. This fiction may be indulged under
state law as a device to regulate creditors' rights, but the
Jewett Court clearly held that Congress enacted no such fan-
tasy.19 In sum, the retroactivity argument is sufficiently an-
swered by our statement in United States v. Jacobs, 306 U. S.
363, 367 (1939), that a tax "does not operate retroactively
merely because some of the facts or conditions upon which
its application depends came into being prior to the enact-
ment of the tax."
19 While respondents do not take the further step of arguing that § 502
should be read to embody the fiction because due process would otherwise
be violated, they do argue that taxation here would violate due process
because Mrs. Irvine would not have been allowed to make a tax-free dis-
claimer within a reasonable time after adoption of the Act. But those
facts are not presented here, as Mrs. Irvine did not disclaim until 1979.
See supra, at 235.
511us1$39M 11-03-97 17:42:53 PAGES OPINPGT
242 UNITED STATES v. IRVINE
Opinion of Scalia, J.
V
The Commissioner's assessment of federal gift tax on
Mrs. Irvine's 1979 disclaimer was authorized by the statute.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Blackmun took no part in the decision of this
case.
Justice Scalia, concurring in part and concurring in the
judgment.
I join the judgment of the Court, and its opinion except
for Part IIIÂA. It seems to me that the basis for the "rea-
sonable time" limitation in the Regulation cannot be, as the
Court says, ante, at 235, the need to deprive the beneficiary
of "a virtually unlimited opportunity to consider estate plan-
ning consequences." Considering estate planning conse-
quences (not a malum in se) is nowhere condemned by the
tax laws, and I would see no basis for the Treasury Depart-
ment's arbitrarily declaring a disclaimer to be a gift solely
in order to deter such consideration. The Secretary un-
doubtedly has broad discretion to determine the meaning of
the term "transfer" as it is used in the gift tax statute, and
undoubtedly may indulge an antagonism to estate planning
in choosing among permissible meanings. But "disclaimer
after opportunity for estate tax planning" is simply not a
permissible meaning.
The justification for the "reasonable time" limitation must,
as always, be a textual one. It consists, in my view, of the
fact that the failure to make a reasonably prompt disclaimer
of a known bequest is an implicit acceptance. Qui tacet,
consentire videtur. Thus, a later disclaimer, which causes
the property to go to someone else by operation of law, is
effectively a transfer to that someone else. (The implication
from nondisclaimer is much weaker when the interest is a
511us1$39K 11-03-97 17:42:53 PAGES OPINPGT
Cite as: 511 U. S. 224 (1994) 243
Opinion of Scalia, J.
contingent one, but Jewett v. Commissioner, 455 U. S. 305
(1982), resolved that issue-perhaps incorrectly.) While
state disclaimer laws have chosen to override the reasonable
implication of nondisclaimer, the Treasury Department regu-
lations correctly (or at least permissibly) conclude that the
federal gift tax does not.
511us1$40z 11-04-97 19:35:16 PAGES OPINPGT
244 OCTOBER TERM, 1993
Syllabus
LANDGRAF v. USI FILM PRODUCTS et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 92Â757. Argued October 13, 1993-Decided April 26, 1994
After a bench trial in petitioner Landgraf's suit under Title VII of the
Civil Rights Act of 1964 (Title VII), the District Court found that she
had been sexually harassed by a co-worker at respondent USI Film
Products, but that the harassment was not so severe as to justify her
decision to resign her position. Because the court found that her em-
ployment was not terminated in violation of Title VII, she was not enti-
tled to equitable relief, and because Title VII did not then authorize any
other form of relief, the court dismissed her complaint. While her ap-
peal was pending, the Civil Rights Act of 1991 (1991 Act or Act) became
law, § 102 of which includes provisions that create a right to recover
compensatory and punitive damages for intentional discrimination viola-
tive of Title VII (hereinafter § 102(a)), and authorize any party to de-
mand a jury trial if such damages are claimed (hereinafter § 102(c)). In
affirming, the Court of Appeals rejected Landgraf's argument that her
case should be remanded for a jury trial on damages pursuant to § 102.
Held: Section 102 does not apply to a Title VII case that was pending on
appeal when the 1991 Act was enacted. Pp. 250Â286.
(a) Since the President vetoed a 1990 version of the Act on the
ground, among others, of perceived unfairness in the bill's elaborate
retroactivity provision, it is likely that the omission of comparable lan-
guage in the 1991 Act was not congressional oversight or unawareness,
but was a compromise that made the Act possible. That omission is
not dispositive here because it does not establish precisely where the
compromise was struck. For example, a decision to reach only cases
still pending, and not those already finally decided, might explain Con-
gress' failure to provide in the 1991 Act, as it had in the 1990 bill, that
certain sections would apply to proceedings pending on specified pre-
enactment dates. Pp. 250Â257.
(b) The text of the 1991 Act does not evince any clear expression of
congressional intent as to whether § 102 applies to cases arising before
the Act's passage. The provisions on which Landgraf relies for such an
expression-§ 402(a), which states that, "[e]xcept as otherwise specifi-
cally provided, this Act and the amendments made by this Act shall
take effect upon enactment," and §§ 402(b) and 109(c), which provide for
prospective application in limited contexts-cannot bear the heavy
511us1$40z 11-04-97 19:35:16 PAGES OPINPGT
Cite as: 511 U. S. 244 (1994) 245
Syllabus
weight she would place upon them by negative inference: Her statutory
argument would require the Court to assume that Congress chose a
surprisingly indirect route to convey an important and easily expressed
message. Moreover, the relevant legislative history reveals little to
suggest that Members of Congress believed that an agreement had
been tacitly reached on the controversial retroactivity issue or that
Congress understood or intended the interplay of the foregoing sec-
tions to have the decisive effect Landgraf assigns them. Instead, the
history conveys the impression that legislators agreed to disagree about
whether and to what extent the Act would apply to preenactment
conduct. Pp. 257Â263.
(c) In order to resolve the question left open by the 1991 Act, this
Court must focus on the apparent tension between two seemingly
contradictory canons for interpreting statutes that do not specify
their temporal reach: the rule that a court must apply the law in effect
at the time it renders its decision, see Bradley v. School Bd. of Rich-
mond, 416 U. S. 696, 711, and the axiom that statutory retroactivity is
not favored, see Bowen v. Georgetown Univ. Hospital, 488 U. S. 204,
208. Pp. 263Â265.
(d) The presumption against statutory retroactivity is founded upon
elementary considerations of fairness dictating that individuals should
have an opportunity to know what the law is and to conform their con-
duct accordingly. It is deeply rooted in this Court's jurisprudence and
finds expression in several constitutional provisions, including, in the
criminal context, the Ex Post Facto Clause. In the civil context, pro-
spectivity remains the appropriate default rule unless Congress has
made clear its intent to disrupt settled expectations. Pp. 265Â273.
(e) Thus, when a case implicates a federal statute enacted after the
events giving rise to the suit, a court's first task is to determine whether
Congress has expressly prescribed the statute's proper reach. If Con-
gress has done so, there is no need to resort to judicial default rules.
Where the statute in question unambiguously applies to preenactment
conduct, there is no conflict between the antiretroactivity presumption
and the principle that a court should apply the law in effect at the time
of decision. Even absent specific legislative authorization, application
of a new statute to cases arising before its enactment is unquestionably
proper in many situations. However, where the new statute would
have a genuinely retroactive effect-i. e., where it would impair rights
a party possessed when he acted, increase his liability for past conduct,
or impose new duties with respect to transactions already completed-
the traditional presumption teaches that the statute does not govern
absent clear congressional intent favoring such a result. Bradley did
not displace the traditional presumption. Pp. 273Â280.
511us1$40z 11-04-97 19:35:16 PAGES OPINPGT
246 LANDGRAF v. USI FILM PRODUCTS
Syllabus
(f) Application of the foregoing principles demonstrates that, absent
guiding instructions from Congress, § 102 is not the type of provision
that should govern cases arising before its enactment, but is instead
subject to the presumption against statutory retroactivity. Section
102(b)(1), which authorizes punitive damages in certain circumstances,
is clearly subject to the presumption, since the very labels given "puni-
tive" or "exemplary" damages, as well as the rationales supporting
them, demonstrate that they share key characteristics of criminal sanc-
tions, and therefore would raise a serious question under the Ex Post
Facto Clause if retroactively imposed. While the § 102(a)(1) provision
authorizing compensatory damages is not so easily classified, it is also
subject to the presumption, since it confers a new right to monetary
relief on persons like Landgraf, who were victims of a hostile work envi-
ronment but were not constructively discharged, and substantially in-
creases the liability of their employers for the harms they caused, and
thus would operate "retrospectively" if applied to preenactment con-
duct. Although a jury trial right is ordinarily a procedural change of
the sort that would govern in trials conducted after its effective date
regardless of when the underlying conduct occurred, the jury trial op-
tion set out in § 102(c)(1) must fall with the attached damages provisions
because § 102(c) makes a jury trial available only "[i]f a complaining
party seeks compensatory or punitive damages." Pp. 280Â286.
968 F. 2d 427, affirmed.
Stevens, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed
an opinion concurring in the judgment, in which Kennedy and Thomas,
JJ., joined, post, p. 286. Blackmun, J., filed a dissenting opinion, post,
p. 294.
Eric Schnapper argued the cause for petitioner. On the
briefs were Paul C. Saunders, Timothy B. Garrigan, Rich-
ard T. Seymour, and Sharon R. Vinick.
Solicitor General Days argued the cause for the United
States et al. as amici curiae urging reversal. On the brief
were Acting Solicitor General Bryson, Acting Assistant At-
torney General Turner, Deputy Solicitor General Wallace,
Robert A. Long, Jr., David K. Flynn, Dennis J. Dimsey,
Rebecca K. Troth, and Donald R. Livingston.
511us1$40z 11-04-97 19:35:16 PAGES OPINPGT
Cite as: 511 U. S. 244 (1994) 247
Opinion of the Court
Glen D. Nager argued the cause for respondents. On the
brief was David N. Shane.*
Justice Stevens delivered the opinion of the Court.
The Civil Rights Act of 1991 (1991 Act or Act) creates a
right to recover compensatory and punitive damages for cer-
tain violations of Title VII of the Civil Rights Act of 1964.
See Rev. Stat. § 1977A(a), 42 U. S. C. § 1981a(a) (1988 ed.,
Supp. IV), as added by § 102 of the 1991 Act, Pub. L. 102Â166,
105 Stat. 1072. The Act further provides that any party
may demand a trial by jury if such damages are sought.1
We granted certiorari to decide whether these provisions
apply to a Title VII case that was pending on appeal when
the statute was enacted. We hold that they do not.
I
From September 4, 1984, through January 17, 1986, peti-
tioner Barbara Landgraf was employed in the USI Film
*Briefs of amici curiae urging reversal were filed for the Asian Ameri-
can Legal Defense and Education Fund et al. by Denny Chin, Doreena
Wong, and Angelo N. Ancheta; and for the National Women's Law Center
et al. by Judith E. Schaeffer and Ellen J. Vargyas.
Briefs of amici curiae urging affirmance were filed for the American
Trucking Associations et al. by James D. Holzhauer, Andrew L. Frey,
Kenneth S. Geller, Javier H. Rubinstein, Daniel R. Barney, and Kenneth
P. Kolson; and for Motor Express, Inc., by Alan J. Thiemann.
Briefs of amici curiae were filed for the Equal Employment Advisory
Council et al. by Robert E. Williams, Douglas S. McDowell, and Mona C.
Zeiberg; for the National Association for the Advancement of Colored Peo-
ple et al. by Marc L. Fleischaker, David L. Kelleher, Steven S. Zaleznick,
Cathy Ventrell-Monsees, Steven M. Freeman, Michael Lieberman, Dennis
Courtland Hayes, Willie Abrams, Samuel Rabinove, and Richard Foltin;
and for Wards Cove Packing Co. by Douglas M. Fryer, Douglas M. Dun-
can, and Richard L. Phillips.
1 See Rev. Stat. § 1977A(c), 42 U. S. C. § 1981a(c) (1988 ed., Supp. IV), as
added by § 102 of the 1991 Act. For simplicity, and in conformity with the
practice of the parties, we will refer to the damages and jury trial provi-
sions as §§ 102(a) and (c), respectively.
511us1$40I 11-04-97 19:35:16 PAGES OPINPGT
248 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
Products (USI) plant in Tyler, Texas. She worked the 11
p.m. to 7 a.m. shift operating a machine that produced plastic
bags. A fellow employee named John Williams repeatedly
harassed her with inappropriate remarks and physical con-
tact. Petitioner's complaints to her immediate supervisor
brought her no relief, but when she reported the incidents
to the personnel manager, he conducted an investigation,
reprimanded Williams, and transferred him to another de-
partment. Four days later petitioner quit her job.
Petitioner filed a timely charge with the Equal Employ-
ment Opportunity Commission (EEOC or Commission).
The Commission determined that petitioner had likely been
the victim of sexual harassment creating a hostile work envi-
ronment in violation of Title VII of the Civil Rights Act of
1964, 42 U. S. C. § 2000e et seq., but concluded that her em-
ployer had adequately remedied the violation. Accordingly,
the Commission dismissed the charge and issued a notice of
right to sue.
On July 21, 1989, petitioner commenced this action against
USI, its corporate owner, and that company's successor in
interest.2 After a bench trial, the District Court found that
Williams had sexually harassed petitioner causing her to suf-
fer mental anguish. However, the court concluded that she
had not been constructively discharged. The court said:
"Although the harassment was serious enough to
establish that a hostile work environment existed for
Landgraf, it was not so severe that a reasonable per-
son would have felt compelled to resign. This is partic-
ularly true in light of the fact that at the time Land-
graf resigned from her job, USI had taken steps . . . to
eliminate the hostile working environment arising from
the sexual harassment. Landgraf voluntarily resigned
2 Respondent Quantum Chemical Corporation owned the USI plant
when petitioner worked there. Respondent Bonar Packaging, Inc., subse-
quently purchased the operation.
511us1$40I 11-04-97 19:35:16 PAGES OPINPGT
Cite as: 511 U. S. 244 (1994) 249
Opinion of the Court
from her employment with USI for reasons unrelated to
the sexual harassment in question." App. to Pet. for
Cert. BÂ3Â4.
Because the court found that petitioner's employment was
not terminated in violation of Title VII, she was not enti-
tled to equitable relief, and because Title VII did not then
authorize any other form of relief, the court dismissed her
complaint.
On November 21, 1991, while petitioner's appeal was pend-
ing, the President signed into law the Civil Rights Act of
1991. The Court of Appeals rejected petitioner's argument
that her case should be remanded for a jury trial on damages
pursuant to the 1991 Act. Its decision not to remand rested
on the premise that "a court must `apply the law in effect at
the time it renders its decision, unless doing so would result
in manifest injustice or there is statutory direction or legisla-
tive history to the contrary.' Bradley [v. School Bd. of
Richmond, 416 U. S. 696, 711 (1974)]." 968 F. 2d 427, 432
(CA5 1992). Commenting first on the provision for a jury
trial in § 102(c), the court stated that requiring the defendant
"to retry this case because of a statutory change enacted
after the trial was completed would be an injustice and a
waste of judicial resources. We apply procedural rules to
pending cases, but we do not invalidate procedures followed
before the new rule was adopted." Id., at 432Â433. The
court then characterized the provision for compensatory and
punitive damages in § 102 as "a seachange in employer liabil-
ity for Title VII violations" and concluded that it would be
unjust to apply this kind of additional and unforeseeable obli-
gation to conduct occurring before the effective date of the
Act. Id., at 433. Finding no clear error in the District
Court's factual findings, the Court of Appeals affirmed the
judgment for respondents.
We granted certiorari and set the case for argument with
Rivers v. Roadway Express, Inc., post, p. 298. Our order
limited argument to the question whether § 102 of the 1991
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250 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
Act applies to cases pending when it became law. 507 U. S.
908 (1993). Accordingly, for purposes of our decision, we
assume that the District Court and the Court of Appeals
properly applied the law in effect at the time of the dis-
criminatory conduct and that the relevant findings of fact
were correct. We therefore assume that petitioner was the
victim of sexual harassment violative of Title VII, but that
the law did not then authorize any recovery of damages even
though she was injured. We also assume, arguendo, that if
the same conduct were to occur today, petitioner would be
entitled to a jury trial and that the jury might find that she
was constructively discharged, or that her mental anguish or
other injuries would support an award of damages against
her former employer. Thus, the controlling question is
whether the Court of Appeals should have applied the law
in effect at the time the discriminatory conduct occurred, or
at the time of its decision in July 1992.
II
Petitioner's primary submission is that the text of the 1991
Act requires that it be applied to cases pending on its enact-
ment. Her argument, if accepted, would make the entire
Act (with two narrow exceptions) applicable to conduct that
occurred, and to cases that were filed, before the Act's effec-
tive date. Although only § 102 is at issue in this case, we
preface our analysis with a brief description of the scope of
the 1991 Act.
The 1991 Act is in large part a response to a series of
decisions of this Court interpreting the Civil Rights Acts of
1866 and 1964. Section 3(4), 105 Stat. 1071, note following
42 U. S. C. § 1981, expressly identifies as one of the Act's pur-
poses "to respond to recent decisions of the Supreme Court
by expanding the scope of relevant civil rights statutes in
order to provide adequate protection to victims of discrimi-
nation." That section, as well as a specific finding in § 2(2),
identifies Wards Cove Packing Co. v. Atonio, 490 U. S. 642
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Opinion of the Court
(1989), as a decision that gave rise to special concerns.3 Sec-
tion 105 of the Act, entitled "Burden of Proof in Disparate
Impact Cases," is a direct response to Wards Cove.
Other sections of the Act were obviously drafted with "re-
cent decisions of the Supreme Court" in mind. Thus, § 101
(which is at issue in Rivers, post, p. 298) amended the 1866
Civil Rights Act's prohibition of racial discrimination in the
"mak[ing] and enforce[ment] [of] contracts," 42 U. S. C. § 1981
(1988 ed., Supp. IV), in response to Patterson v. McLean
Credit Union, 491 U. S. 164 (1989); § 107 responds to Price
Waterhouse v. Hopkins, 490 U. S. 228 (1989), by setting forth
standards applicable in "mixed motive" cases; § 108 responds
to Martin v. Wilks, 490 U. S. 755 (1989), by prohibiting cer-
tain challenges to employment practices implementing con-
sent decrees; § 109 responds to EEOC v. Arabian American
Oil Co., 499 U. S. 244 (1991), by redefining the term "em-
ployee" as used in Title VII to include certain United States
citizens working in foreign countries for United States em-
ployers; § 112 responds to Lorance v. AT&T Technologies,
Inc., 490 U. S. 900 (1989), by expanding employees' rights to
challenge discriminatory seniority systems; § 113 responds to
West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83
(1991), by providing that an award of attorney's fees may
include expert fees; and § 114 responds to Library of Con-
gress v. Shaw, 478 U. S. 310 (1986), by allowing interest on
judgments against the United States.
A number of important provisions in the Act, however,
were not responses to Supreme Court decisions. For exam-
ple, § 106 enacts a new prohibition against adjusting test
3 Section 2(2) finds that the Wards Cove decision "has weakened the
scope and effectiveness of Federal civil rights protections," and § 3(2)
expresses Congress' intent "to codify" certain concepts enunciated in
"Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490
U. S. 642 (1989)." We take note of the express references to that case
because it is the focus of § 402(b), on which petitioner places particular
reliance. See infra, at 258Â263.
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252 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
scores "on the basis of race, color, religion, sex, or national
origin"; § 117 extends the coverage of Title VII to include
the House of Representatives and certain employees of the
Legislative Branch; and §§ 301Â325 establish special proce-
dures to protect Senate employees from discrimination.
Among the provisions that did not directly respond to
any Supreme Court decision is the one at issue in this case,
§ 102.
Entitled "Damages in Cases of Intentional Discrimina-
tion," § 102 provides in relevant part:
"(a) Right of Recovery.-
"(1) Civil Rights.-In an action brought by a com-
plaining party under section 706 or 717 of the Civil
Rights Act of 1964 (42 U. S. C. 2000eÂ5) against a re-
spondent who engaged in unlawful intentional discrimi-
nation (not an employment practice that is unlawful be-
cause of its disparate impact) prohibited under section
703, 704, or 717 of the Act (42 U. S. C. 2000eÂ2 or 2000eÂ
3), and provided that the complaining party cannot re-
cover under section 1977 of the Revised Statutes (42
U. S. C. 1981), the complaining party may recover com-
pensatory and punitive damages . . . in addition to any
relief authorized by section 706(g) of the Civil Rights
Act of 1964, from the respondent.
. . . . .
"(c) Jury Trial.-If a complaining party seeks compensa-
tory or punitive damages under this section-
"(1) any party may demand a trial by jury."
Before the enactment of the 1991 Act, Title VII afforded
only "equitable" remedies. The primary form of mone-
tary relief available was backpay.4 Title VII's backpay rem-
4 We have not decided whether a plaintiff seeking backpay under Title
VII is entitled to a jury trial. See, e. g., Lytle v. Household Mfg., Inc.,
494 U. S. 545, 549, n. 1 (1990) (assuming without deciding no right to jury
trial); Teamsters v. Terry, 494 U. S. 558, 572 (1990) (same). Because peti-
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Opinion of the Court
edy,5 modeled on that of the National Labor Relations Act,
29 U. S. C. § 160(c), is a "make-whole" remedy that resembles
compensatory damages in some respects. See Albemarle
Paper Co. v. Moody, 422 U. S. 405, 418Â422 (1975). However,
the new compensatory damages provision of the 1991 Act is
"in addition to," and does not replace or duplicate, the back-
pay remedy allowed under prior law. Indeed, to prevent
double recovery, the 1991 Act provides that compensatory
damages "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." § 102(b)(2).
Section 102 significantly expands the monetary relief po-
tentially available to plaintiffs who would have been entitled
to backpay under prior law. Before 1991, for example, mon-
etary relief for a discriminatorily discharged employee gen-
erally included "only an amount equal to the wages the em-
ployee would have earned from the date of discharge to the
date of reinstatement, along with lost fringe benefits such as
vacation pay and pension benefits." United States v. Burke,
504 U. S. 229, 239 (1992). Under § 102, however, a Title VII
plaintiff who wins a backpay award may also seek compensa-
tory damages for "future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment
of life, and other nonpecuniary losses." § 102(b)(3). In ad-
tioner does not argue that she had a right to jury trial even under pre-1991
law, again we need not address this question.
5 "If the court finds that the respondent has intentionally engaged in . . .
an unlawful employment practice charged in the complaint, the court may
. . . order such affirmative action as may be appropriate, which may in-
clude, but is not limited to, reinstatement or hiring of employees, with or
without back pay . . . or any other equitable relief as the court deems
appropriate. Back pay liability shall not accrue from a date more than
two years prior to the filing of a charge with the Commission. Interim
earnings or amounts earnable with reasonable diligence by the person or
persons discriminated against shall operate to reduce the back pay other-
wise allowable." Civil Rights Act of 1964, § 706(g), as amended, 42
U. S. C. § 2000eÂ5(g) (1988 ed., Supp. IV).
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254 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
dition, when it is shown that the employer acted "with malice
or with reckless indifference to the [plaintiff's] federally pro-
tected rights," § 102(b)(1), a plaintiff may recover punitive
damages.6
Section 102 also allows monetary relief for some forms of
workplace discrimination that would not previously have jus-
tified any relief under Title VII. As this case illustrates,
even if unlawful discrimination was proved, under prior law
a Title VII plaintiff could not recover monetary relief unless
the discrimination was also found to have some concrete ef-
fect on the plaintiff's employment status, such as a denied
promotion, a differential in compensation, or termination.
See Burke, 504 U. S., at 240. ("[T]he circumscribed reme-
dies available under Title VII [before the 1991 Act] stand in
marked contrast not only to those available under traditional
tort law, but under other federal anti-discrimination statutes,
as well"). Section 102, however, allows a plaintiff to recover
in circumstances in which there has been unlawful discrimi-
nation in the "terms, conditions, or privileges of employ-
ment," 42 U. S. C. § 2000eÂ2(a)(1),7 even though the discrimi-
nation did not involve a discharge or a loss of pay. In short,
to further Title VII's "central statutory purposes of eradicat-
ing discrimination throughout the economy and making per-
sons whole for injuries suffered through past discrimina-
tion," Albemarle Paper Co., 422 U. S., at 421, § 102 of the
6 Section 102(b)(3) imposes limits, varying with the size of the employer,
on the amount of compensatory and punitive damages that may be
awarded to an individual plaintiff. Thus, the sum of such damages
awarded a plaintiff may not exceed $50,000 for employers with between
14 and 100 employees; $100,000 for employers with between 101 and 200
employees; $200,000 for employers with between 200 and 500 employees;
and $300,000 for employers with more than 500 employees.
7 See Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (discrimina-
tion in "terms, conditions, or privileges of employment" actionable under
Title VII "is not limited to `economic' or `tangible' discrimination") (cita-
tions and internal quotation marks omitted).
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Opinion of the Court
1991 Act effects a major expansion in the relief available to
victims of employment discrimination.
In 1990, a comprehensive civil rights bill passed both
Houses of Congress. Although similar to the 1991 Act in
many other respects, the 1990 bill differed in that it con-
tained language expressly calling for application of many of
its provisions, including the section providing for damages
in cases of intentional employment discrimination, to cases
arising before its (expected) enactment.8 The President ve-
8 The relevant section of the Civil Rights Act of 1990, S. 2104, 101st
Cong., 1st Sess. (1990), provided:
"Sec. 15. Application of Amendments and Transition Rules.
"(a) Application of Amendments.-The amendments made by-
"(1) section 4 shall apply to all proceedings pending on or commenced
after June 5, 1989 [the date of Wards Cove Packing Co. v. Atonio, 490
U. S. 642];
"(2) section 5 shall apply to all proceedings pending on or commenced
after May 1, 1989 [the date of Price Waterhouse v. Hopkins, 490 U. S. 228];
"(3) section 6 shall apply to all proceedings pending on or commenced
after June 12, 1989 [the date of Martin v. Wilks, 490 U. S. 755];
"(4) sections 7(a)(1), 7(a)(3) and 7(a)(4), 7(b), 8 [providing for compensa-
tory and punitive damages for intentional discrimination], 9, 10, and 11
shall apply to all proceedings pending on or commenced after the date of
enactment of this Act;
"(5) section 7(a)(2) shall apply to all proceedings pending on or after
June 12, 1989 [the date of Lorance v. AT&T Technologies, Inc., 490 U. S.
900]; and
"(6) section 12 shall apply to all proceedings pending on or commenced
after June 15, 1989 [the date of Patterson v. McLean Credit Union, 491
U. S. 164].
"(b) Transition Rules.-
"(1) In General.-Any orders entered by a court between the effective
dates described in subsection (a) and the date of enactment of this Act
that are inconsistent with the amendments made by sections 4, 5, 7(a)(2),
or 12, shall be vacated if, not later than 1 year after such date of enact-
ment, a request for such relief is made.
. . . . .
"(3) Final Judgments.-Pursuant to paragraphs (1) and (2), any final
judgment entered prior to the date of the enactment of this Act as to
which the rights of any of the parties thereto have become fixed and
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256 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
toed the 1990 legislation, however, citing the bill's "unfair
retroactivity rules" as one reason for his disapproval.9 Con-
gress narrowly failed to override the veto. See 136 Cong.
Rec. S16589 (Oct. 24, 1990) (66 to 34 Senate vote in favor
of override).
The absence of comparable language in the 1991 Act can-
not realistically be attributed to oversight or to unawareness
of the retroactivity issue. Rather, it seems likely that one
of the compromises that made it possible to enact the 1991
version was an agreement not to include the kind of explicit
retroactivity command found in the 1990 bill.
The omission of the elaborate retroactivity provision of the
1990 bill-which was by no means the only source of political
controversy over that legislation-is not dispositive because
it does not tell us precisely where the compromise was struck
in the 1991 Act. The Legislature might, for example, have
settled in 1991 on a less expansive form of retroactivity that,
unlike the 1990 bill, did not reach cases already finally de-
cided. See n. 8, supra. A decision to reach only cases still
pending might explain Congress' failure to provide in the
vested, where the time for seeking further judicial review of such judg-
ment has otherwise expired pursuant to title 28 of the United States Code,
the Federal Rules of Civil Procedure, and the Federal Rules of Appellate
Procedure, shall be vacated in whole or in part if justice requires pursuant
to rule 60(b)(6) of the Federal Rules of Civil Procedure or other appro-
priate authority, and consistent with the constitutional requirements of
due process of law."
9 See President's Message to the Senate Returning Without Approval
the Civil Rights Act of 1990, 26 Weekly Comp. Pres. Doc. 1632Â1634 (Oct.
22, 1990), reprinted in 136 Cong. Rec. S16418, S16419 (Oct. 22, 1990). The
President's veto message referred to the bill's "retroactivity" only briefly;
the Attorney General's Memorandum to which the President referred was
no more expansive, and may be read to refer only to the bill's special
provision for reopening final judgments, see n. 8, supra, rather than its
provisions covering pending cases. See Memorandum of the Attorney
General to the President (Oct. 22, 1990) in App. to Brief for Petitioner
AÂ13 ("And Section 15 unfairly applies the changes in the law made by
S. 2104 to cases already decided") (emphasis added).
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Opinion of the Court
1991 Act, as it had in 1990, that certain sections would apply
to proceedings pending on specific preenactment dates. Our
first question, then, is whether the statutory text on which
petitioner relies manifests an intent that the 1991 Act should
be applied to cases that arose and went to trial before its
enactment.
III
Petitioner's textual argument relies on three provisions of
the 1991 Act: §§ 402(a), 402(b), and 109(c). Section 402(a),
the only provision of the Act that speaks directly to the ques-
tion before us, states:
"Except as otherwise specifically provided, this Act
and the amendments made by this Act shall take effect
upon enactment."
That language does not, by itself, resolve the question before
us. A statement that a statute will become effective on a
certain date does not even arguably suggest that it has any
application to conduct that occurred at an earlier date.10
10 The history of prior amendments to Title VII suggests that the
"effective-upon-enactment" formula would have been an especially inapt
way to reach pending cases. When it amended Title VII in the Equal
Employment Opportunity Act of 1972, Congress explicitly provided:
"The amendments made by this Act to section 706 of the Civil Rights
Act of 1964 shall be applicable with respect to charges pending with the
Commission on the date of enactment of this Act and all charges filed
thereafter." Pub. L. 92Â261, § 14, 86 Stat. 113. In contrast, in amending
Title VII to bar discrimination on the basis of pregnancy in 1978, Con-
gress provided:
"Except as provided in subsection (b), the amendment made by this Act
shall be effective on the date of enactment." § 2(a), 92 Stat. 2076.
The only Courts of Appeals to consider whether the 1978 amendments
applied to pending cases concluded that they did not. See Schwabenbauer
v. Board of Ed. of School Dist. of Olean, 667 F. 2d 305, 310, n. 7 (CA2
1981); Condit v. United Air Lines, Inc., 631 F. 2d 1136, 1139Â1140 (CA4
1980). See also Jensen v. Gulf Oil Refining & Marketing Co., 623 F. 2d
406, 410 (CA5 1980) (Age Discrimination in Employment Act amendments
designated to "take effect on the date of enactment of this Act" inapplica-
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258 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
Petitioner does not argue otherwise. Rather, she contends
that the introductory clause of § 402(a) would be superfluous
unless it refers to §§ 402(b) and 109(c), which provide for pro-
spective application in limited contexts.
The parties agree that § 402(b) was intended to exempt
a single disparate impact lawsuit against the Wards Cove
Packing Company. Section 402(b) provides:
"(b) Certain Disparate Impact Cases.-Notwith-
standing any other provision of this Act, nothing in this
Act shall apply to any disparate impact case for which a
complaint was filed before March 1, 1975, and for which
an initial decision was rendered after October 30, 1983."
Section 109(c), part of the section extending Title VII to
overseas employers, states:
"(c) Application of Amendments.-The amend-
ments made by this section shall not apply with respect
to conduct occurring before the date of the enactment of
this Act."
According to petitioner, these two subsections are the "other
provisions" contemplated in the first clause of § 402(a), and
together create a strong negative inference that all sections
of the Act not specifically declared prospective apply to
pending cases that arose before November 21, 1991.
Before addressing the particulars of petitioner's argument,
we observe that she places extraordinary weight on two com-
paratively minor and narrow provisions in a long and com-
plex statute. Applying the entire Act to cases arising from
preenactment conduct would have important consequences,
including the possibility that trials completed before its en-
ble to case arising before enactment); Sikora v. American Can Co., 622
F. 2d 1116, 1119Â1124 (CA3 1980) (same). If we assume that Congress
was familiar with those decisions, cf. Cannon v. University of Chicago,
441 U. S. 677, 698Â699 (1979), its choice of language in § 402(a) would
imply nonretroactivity.
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Opinion of the Court
actment would need to be retried and the possibility that
employers would be liable for punitive damages for conduct
antedating the Act's enactment. Purely prospective appli-
cation, on the other hand, would prolong the life of a remedial
scheme, and of judicial constructions of civil rights statutes,
that Congress obviously found wanting. Given the high
stakes of the retroactivity question, the broad coverage of
the statute, and the prominent and specific retroactivity pro-
visions in the 1990 bill, it would be surprising for Congress
to have chosen to resolve that question through negative in-
ferences drawn from two provisions of quite limited effect.
Petitioner, however, invokes the canon that a court should
give effect to every provision of a statute and thus avoid
redundancy among different provisions. See, e. g., Mackey
v. Lanier Collection Agency & Service, Inc., 486 U. S. 825,
837, and n. 11 (1988). Unless the word "otherwise" in
§ 402(a) refers to either § 402(b) or § 109(c), she contends, the
first five words in § 402(a) are entirely superfluous. More-
over, relying on the canon "[e]xpressio unius est exclusio
alterius," see Leatherman v. Tarrant County Narcotics In-
telligence and Coordination Unit, 507 U. S. 163, 168 (1993),
petitioner argues that because Congress provided specifi-
cally for prospectivity in two places (§§ 109(c) and 402(b)), we
should infer that it intended the opposite for the remainder
of the statute.
Petitioner emphasizes that § 402(a) begins: "Except as
otherwise specifically provided." A scan of the statute for
other "specific provisions" concerning effective dates reveals
that §§ 402(b) and 109(c) are the most likely candidates.
Since those provisions decree prospectivity, and since
§ 402(a) tells us that the specific provisions are exceptions,
§ 402(b) should be considered as prescribing a general rule of
retroactivity. Petitioner's argument has some force, but we
find it most unlikely that Congress intended the introductory
clause to carry the critically important meaning petitioner
assigns it. Had Congress wished § 402(a) to have such a de-
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260 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
terminate meaning, it surely would have used language com-
parable to its reference to the predecessor Title VII damages
provisions in the 1990 legislation: that the new provisions
"shall apply to all proceedings pending on or commenced
after the date of enactment of this Act." S. 2104, 101st
Cong., 1st Sess. § 15(a)(4) (1990).
It is entirely possible that Congress inserted the "other-
wise specifically provided" language not because it under-
stood the "takes effect" clause to establish a rule of retroac-
tivity to which only two "other specific provisions" would
be exceptions, but instead to assure that any specific timing
provisions in the Act would prevail over the general "take
effect on enactment" command. The drafters of a compli-
cated piece of legislation containing more than 50 separate
sections may well have inserted the "except as otherwise
provided" language merely to avoid the risk of an inadver-
tent conflict in the statute.11 If the introductory clause of
§ 402(a) was intended to refer specifically to §§ 402(b), 109(c),
or both, it is difficult to understand why the drafters chose
the word "otherwise" rather than either or both of the appro-
priate section numbers.
We are also unpersuaded by petitioner's argument that
both §§ 402(b) and 109(c) merely duplicate the "take effect
upon enactment" command of § 402(a) unless all other pro-
visions, including the damages provisions of § 102, apply to
pending cases. That argument depends on the assumption
that all those other provisions must be treated uniformly
for purposes of their application to pending cases based
on preenactment conduct. That thesis, however, is by no
11 There is some evidence that the drafters of the 1991 Act did not devote
particular attention to the interplay of the Act's "effective date" provi-
sions. Section 110, which directs the EEOC to establish a "Technical As-
sistance Training Institute" to assist employers in complying with antidis-
crimination laws and regulations, contains a subsection providing that it
"shall take effect on the date of the enactment of this Act." § 110(b).
That provision and § 402(a) are unavoidably redundant.
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Opinion of the Court
means an inevitable one. It is entirely possible-indeed,
highly probable-that, because it was unable to resolve the
retroactivity issue with the clarity of the 1990 legislation,
Congress viewed the matter as an open issue to be resolved
by the courts. Our precedents on retroactivity left doubts
about what default rule would apply in the absence of con-
gressional guidance, and suggested that some provisions
might apply to cases arising before enactment while others
might not.12 Compare Bowen v. Georgetown Univ. Hospi-
tal, 488 U. S. 204 (1988), with Bradley v. School Bd. of Rich-
mond, 416 U. S. 696 (1974). See also Bennett v. New Jersey,
470 U. S. 632 (1985). The only matters Congress did not
leave to the courts were set out with specificity in §§ 109(c)
and 402(b). Congressional doubt concerning judicial retro-
activity doctrine, coupled with the likelihood that the routine
"take effect upon enactment" language would require courts
to fall back upon that doctrine, provide a plausible explana-
tion for both §§ 402(b) and 109(c) that makes neither provi-
sion redundant.
Turning to the text of § 402(b), it seems unlikely that the
introductory phrase ("Notwithstanding any other provision
of this Act") was meant to refer to the immediately preced-
ing subsection. Since petitioner does not contend that any
other provision speaks to the general effective date issue, the
logic of her argument requires us to interpret that phrase to
mean nothing more than "Notwithstanding § 402(a)." Peti-
tioner's textual argument assumes that the drafters selected
the indefinite word "otherwise" in § 402(a) to identify two
12 This point also diminishes the force of petitioner's "expressio unius"
argument. Once one abandons the unsupported assumption that Con-
gress expected that all of the Act's provisions would be treated alike, and
takes account of uncertainty about the applicable default rule, §§ 109(c)
and 402(b) do not carry the negative implication petitioner draws from
them. We do not read either provision as doing anything more than de-
finitively rejecting retroactivity with respect to the specific matters cov-
ered by its plain language.
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262 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
specific subsections and the even more indefinite term "any
other provision" in § 402(b) to refer to nothing more than
§ 402(b)'s next-door neighbor-§ 402(a). Here again, peti-
tioner's statutory argument would require us to assume that
Congress chose a surprisingly indirect route to convey an
important and easily expressed message concerning the Act's
effect on pending cases.
The relevant legislative history of the 1991 Act reinforces
our conclusion that §§ 402(a), 109(c), and 402(b) cannot bear
the weight petitioner places upon them. The 1991 bill as
originally introduced in the House contained explicit retroac-
tivity provisions similar to those found in the 1990 bill.13
However, the Senate substitute that was agreed upon omit-
ted those explicit retroactivity provisions.14 The legislative
history discloses some frankly partisan statements about the
meaning of the final effective date language, but those state-
ments cannot plausibly be read as reflecting any general
agreement.15 The history reveals no evidence that Mem-
13 See, e. g., H. R. 1, 102d Cong., 1st Sess. § 113 (1991), reprinted in 137
Cong. Rec. H3924ÂH3925 (Jan. 3, 1991). The prospectivity proviso to the
section extending Title VII to overseas employers was first added to legis-
lation that generally was to apply to pending cases. See H. R. 1, 102d
Cong., 1st Sess. § 119(c) (1991), reprinted in 137 Cong. Rec. H3925ÂH3926
(June 5, 1991). Thus, at the time its language was introduced, the provi-
sion that became § 109(c) was surely not redundant.
14 On the other hand, two proposals that would have provided explicitly
for prospectivity also foundered. See 137 Cong. Rec. S3021, S3023 (Mar.
12, 1991); id., at 13255, 13265Â13266.
15 For example, in an "interpretive memorandum" introduced on behalf
of seven Republican sponsors of S. 1745, the bill that became the 1991 Act,
Senator Danforth stated that "[t]he bill provides that, unless otherwise
specified, the provisions of this legislation shall take effect upon enactment
and shall not apply retroactively." Id., at 29047 (emphasis added). Sen-
ator Kennedy responded that it "will be up to the courts to determine the
extent to which the bill will apply to cases and claims that were pending
on the date of enactment." Ibid. (citing Bradley v. School Bd. of Rich-
mond, 416 U. S. 696 (1974)). The legislative history reveals other partisan
statements on the proper meaning of the Act's "effective date" provisions.
Senator Danforth observed that such statements carry little weight as
legislative history. As he put it:
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Opinion of the Court
bers believed that an agreement had been tacitly struck on
the controversial retroactivity issue, and little to suggest
that Congress understood or intended the interplay of
§§ 402(a), 402(b), and 109(c) to have the decisive effect peti-
tioner assigns them. Instead, the history of the 1991 Act
conveys the impression that legislators agreed to disagree
about whether and to what extent the Act would apply to
preenactment conduct.
Although the passage of the 1990 bill may indicate that a
majority of the 1991 Congress also favored retroactive appli-
cation, even the will of the majority does not become law
unless it follows the path charted in Article I, § 7, cl. 2, of
the Constitution. See INS v. Chadha, 462 U. S. 919, 946Â951
(1983). In the absence of the kind of unambiguous directive
found in § 15 of the 1990 bill, we must look elsewhere for
guidance on whether § 102 applies to this case.
IV
It is not uncommon to find "apparent tension" between
different canons of statutory construction. As Professor
Llewellyn famously illustrated, many of the traditional can-
ons have equal opposites.16 In order to resolve the question
left open by the 1991 Act, federal courts have labored to
"[A] court would be well advised to take with a large grain of salt floor
debate and statements placed in the Congressional Record which
purport to create an interpretation for the legislation that is before us."
137 Cong. Rec. S15325 (Oct. 29, 1991).
16 See Llewellyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons about How Statutes are to be Construed, 3 Vand. L. Rev.
395 (1950). Llewellyn's article identified the apparent conflict between
the canon that
"[a] statute imposing a new penalty or forfeiture, or a new liability or
disability, or creating a new right of action will not be construed as having
a retroactive effect"
and the countervailing rule that
"[r]emedial statutes are to be liberally construed and if a retroactive
interpretation will promote the ends of justice, they should receive such
construction." Id., at 402 (citations omitted).
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264 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
reconcile two seemingly contradictory statements found in
our decisions concerning the effect of intervening changes in
the law. Each statement is framed as a generally applicable
rule for interpreting statutes that do not specify their tem-
poral reach. The first is the rule that "a court is to apply
the law in effect at the time it renders its decision," Bradley,
416 U. S., at 711. The second is the axiom that "[r]etroactiv-
ity is not favored in the law," and its interpretive corollary
that "congressional enactments and administrative rules will
not be construed to have retroactive effect unless their lan-
guage requires this result." Bowen, 488 U. S., at 208.
We have previously noted the "apparent tension" between
those expressions. See Kaiser Aluminum & Chemical
Corp. v. Bonjorno, 494 U. S. 827, 837 (1990); see also Bennett,
470 U. S., at 639Â640. We found it unnecessary in Kaiser to
resolve that seeming conflict "because under either view,
where the congressional intent is clear, it governs," and the
prejudgment interest statute at issue in that case evinced
"clear congressional intent" that it was "not applicable to
judgments entered before its effective date." 499 U. S., at
837Â838. In the case before us today, however, we have con-
cluded that the 1991 Act does not evince any clear expression
of intent on § 102's application to cases arising before the
Act's enactment. We must, therefore, focus on the apparent
tension between the rules we have espoused for handling
similar problems in the absence of an instruction from
Congress.
We begin by noting that there is no tension between the
holdings in Bradley and Bowen, both of which were unani-
mous decisions. Relying on another unanimous decision-
Thorpe v. Housing Authority of Durham, 393 U. S. 268
(1969)-we held in Bradley that a statute authorizing the
award of attorney's fees to successful civil rights plaintiffs
applied in a case that was pending on appeal at the time the
statute was enacted. Bowen held that the Department of
Health and Human Services lacked statutory authority to
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Opinion of the Court
promulgate a rule requiring private hospitals to refund
Medicare payments for services rendered before promulga-
tion of the rule. Our opinion in Bowen did not purport to
overrule Bradley or to limit its reach. In this light, we turn
to the "apparent tension" between the two canons mindful of
another canon of unquestionable vitality, the "maxim not to
be disregarded that general expressions, in every opinion,
are to be taken in connection with the case in which those
expressions are used." Cohens v. Virginia, 6 Wheat. 264,
399 (1821).
A
As Justice Scalia has demonstrated, the presumption
against retroactive legislation is deeply rooted in our juris-
prudence, and embodies a legal doctrine centuries older than
our Republic.17 Elementary considerations of fairness dic-
tate that individuals should have an opportunity to know
what the law is and to conform their conduct accordingly;
settled expectations should not be lightly disrupted.18 For
that reason, the "principle that the legal effect of conduct
should ordinarily be assessed under the law that existed
when the conduct took place has timeless and universal ap-
peal." Kaiser, 494 U. S., at 855 (Scalia, J., concurring). In
17 See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827,
842Â844, 855Â856 (1990) (Scalia, J., concurring). See also, e. g., Dash v.
Van Kleeck, 7 Johns. *477, *503 (N. Y. 1811) ("It is a principle of the Eng-
lish common law, as ancient as the law itself, that a statute, even of its
omnipotent parliament, is not to have a retrospective effect") (Kent, C. J.);
Smead, The Rule Against Retroactive Legislation: A Basic Principle of
Jurisprudence, 20 Minn. L. Rev. 775 (1936).
18 See General Motors Corp. v. Romein, 503 U. S. 181, 191 (1992) ("Ret-
roactive legislation presents problems of unfairness that are more serious
than those posed by prospective legislation, because it can deprive citizens
of legitimate expectations and upset settled transactions"); Munzer, A
Theory of Retroactive Legislation, 61 Texas L. Rev. 425, 471 (1982) ("The
rule of law . . . is a defeasible entitlement of persons to have their behavior
governed by rules publicly fixed in advance"). See also L. Fuller, The
Morality of Law 51Â62 (1964) (hereinafter Fuller).
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266 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
a free, dynamic society, creativity in both commercial and
artistic endeavors is fostered by a rule of law that gives peo-
ple confidence about the legal consequences of their actions.
It is therefore not surprising that the antiretroactivity
principle finds expression in several provisions of our Consti-
tution. The Ex Post Facto Clause flatly prohibits retroac-
tive application of penal legislation.19 Article I, § 10, cl. 1,
prohibits States from passing another type of retroactive
legislation, laws "impairing the Obligation of Contracts."
The Fifth Amendment's Takings Clause prevents the Legis-
lature (and other government actors) from depriving private
persons of vested property rights except for a "public use"
and upon payment of "just compensation." The prohibitions
on "Bills of Attainder" in Art. I, §§ 9Â10, prohibit legislatures
from singling out disfavored persons and meting out sum-
mary punishment for past conduct. See, e. g., United States
v. Brown, 381 U. S. 437, 456Â462 (1965). The Due Process
Clause also protects the interests in fair notice and repose
that may be compromised by retroactive legislation; a justi-
fication sufficient to validate a statute's prospective applica-
tion under the Clause "may not suffice" to warrant its retro-
active application. Usery v. Turner Elkhorn Mining Co.,
428 U. S. 1, 17 (1976).
These provisions demonstrate that retroactive statutes
raise particular concerns. The Legislature's unmatched
powers allow it to sweep away settled expectations suddenly
and without individualized consideration. Its responsivity
to political pressures poses a risk that it may be tempted to
use retroactive legislation as a means of retribution against
unpopular groups or individuals. As Justice Marshall ob-
served in his opinion for the Court in Weaver v. Graham,
450 U. S. 24 (1981), the Ex Post Facto Clause not only en-
19 Article I contains two Ex Post Facto Clauses, one directed to Con-
gress (§ 9, cl. 3), the other to the States (§ 10, cl. 1). We have construed
the Clauses as applicable only to penal legislation. See Calder v. Bull, 3
Dall. 386, 390Â391 (1798) (opinion of Chase, J.).
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Opinion of the Court
sures that individuals have "fair warning" about the effect
of criminal statutes, but also "restricts governmental power
by restraining arbitrary and potentially vindictive legisla-
tion." Id., at 28Â29 (citations omitted).20
The Constitution's restrictions, of course, are of limited
scope. Absent a violation of one of those specific provisions,
the potential unfairness of retroactive civil legislation is not
a sufficient reason for a court to fail to give a statute its
intended scope.21 Retroactivity provisions often serve en-
20 See Richmond v. J. A. Croson Co., 488 U. S. 469, 513Â514 (1989) ("Leg-
islatures are primarily policymaking bodies that promulgate rules to gov-
ern future conduct. The constitutional prohibitions against the enact-
ment of ex post facto laws and bills of attainder reflect a valid concern
about the use of the political process to punish or characterize past conduct
of private citizens. It is the judicial system, rather than the legislative
process, that is best equipped to identify past wrongdoers and to fashion
remedies that will create the conditions that presumably would have ex-
isted had no wrong been committed") (Stevens, J., concurring in part and
concurring in judgment); James v. United States, 366 U. S. 213, 247, n. 3
(1961) (retroactive punitive measures may reflect "a purpose not to pre-
vent dangerous conduct generally but to impose by legislation a penalty
against specific persons or classes of persons").
James Madison argued that retroactive legislation also offered special
opportunities for the powerful to obtain special and improper legislative
benefits. According to Madison, "[b]ills of attainder, ex post facto laws,
and laws impairing the obligation of contracts" were "contrary to the first
principles of the social compact, and to every principle of sound legisla-
tion," in part because such measures invited the "influential" to "specu-
lat[e] on public measures," to the detriment of the "more industrious and
less informed part of the community." The Federalist No. 44, p. 301 (J.
Cooke ed. 1961). See Hochman, The Supreme Court and the Constitution-
ality of Retroactive Legislation, 73 Harv. L. Rev. 692, 693 (1960) (a retroac-
tive statute "may be passed with an exact knowledge of who will benefit
from it").
21 In some cases, however, the interest in avoiding the adjudication of
constitutional questions will counsel against a retroactive application.
For if a challenged statute is to be given retroactive effect, the regulatory
interest that supports prospective application will not necessarily also sus-
tain its application to past events. See Pension Benefit Guaranty Corpo-
ration v. R. A. Gray & Co., 467 U. S. 717, 730 (1984); Usery v. Turner
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268 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
tirely benign and legitimate purposes, whether to respond to
emergencies, to correct mistakes, to prevent circumvention
of a new statute in the interval immediately preceding its
passage, or simply to give comprehensive effect to a new law
Congress considers salutary. However, a requirement that
Congress first make its intention clear helps ensure that
Congress itself has determined that the benefits of retroac-
tivity outweigh the potential for disruption or unfairness.
While statutory retroactivity has long been disfavored, de-
ciding when a statute operates "retroactively" is not always
a simple or mechanical task. Sitting on Circuit, Justice
Story offered an influential definition in Society for Propaga-
tion of the Gospel v. Wheeler, 22 F. Cas. 756 (No. 13,156) (CC
NH 1814), a case construing a provision of the New Hamp-
shire Constitution that broadly prohibits "retrospective"
laws both criminal and civil.22 Justice Story first rejected
the notion that the provision bars only explicitly retroactive
legislation, i. e., "statutes . . . enacted to take effect from a
time anterior to their passage." Id., at 767. Such a con-
struction, he concluded, would be "utterly subversive of all
the objects" of the prohibition. Ibid. Instead, the ban on
retrospective legislation embraced "all statutes, which,
though operating only from their passage, affect vested
Elkhorn Mining Co., 428 U. S. 1, 17 (1976). In this case the punitive dam-
ages provision may raise a question, but for present purposes we assume
that Congress has ample power to provide for retroactive application of
§ 102.
22 Article 23 of the New Hampshire Bill of Rights provides: "Retrospec-
tive laws are highly injurious, oppressive and unjust. No such laws,
therefore, should be made, either for the decision of civil causes or the
punishment of offenses." At issue in the Society case was a new statute
that reversed a common-law rule by allowing certain wrongful possessors
of land, upon being ejected by the rightful owner, to obtain compensation
for improvements made on the land. Justice Story held that the new stat-
ute impaired the owner's rights and thus could not, consistently with Arti-
cle 23, be applied to require compensation for improvements made before
the statute's enactment. See 22 F. Cas., at 766Â769.
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Opinion of the Court
rights and past transactions." Ibid. "Upon principle," Jus-
tice Story elaborated,
"every statute, which takes away or impairs vested
rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new dis-
ability, in respect to transactions or considerations al-
ready past, must be deemed retrospective . . . ." Ibid.
(citing Calder v. Bull, 3 Dall. 386 (1798), and Dash v. Van
Kleeck, 7 Johns. *477 (N. Y. 1811)).
Though the formulas have varied, similar functional concep-
tions of legislative "retroactivity" have found voice in this
Court's decisions and elsewhere.23
A statute does not operate "retrospectively" merely be-
cause it is applied in a case arising from conduct antedating
the statute's enactment, see Republic Nat. Bank of Miami
v. United States, 506 U. S. 80, 100 (1992) (Thomas, J., concur-
ring in part and concurring in judgment), or upsets expecta-
tions based in prior law.24 Rather, the court must ask
23 See, e. g., Miller v. Florida, 482 U. S. 423, 430 (1987) ("A law is retro-
spective if it `changes the legal consequences of acts completed before its
effective date' ") (quoting Weaver v. Graham, 450 U. S. 24, 31 (1981));
Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S. 190, 199 (1913)
(retroactive statute gives "a quality or effect to acts or conduct which
they did not have or did not contemplate when they were performed");
Sturges v. Carter, 114 U. S. 511, 519 (1885) (a retroactive statute is one
that "takes away or impairs vested rights acquired under existing laws,
or creates a new obligation, imposes a new duty, or attaches a new disabil-
ity"). See also Black's Law Dictionary 1184 (5th ed. 1979) (quoting Justice
Story's definition from Society); 2 N. Singer, Sutherland on Statutory Con-
struction § 41.01, p. 337 (5th rev. ed. 1993) ("The terms `retroactive' and
`retrospective' are synonymous in judicial usage . . . . They describe acts
which operate on transactions which have occurred or rights and obliga-
tions which existed before passage of the act").
24 Even uncontroversially prospective statutes may unsettle expecta-
tions and impose burdens on past conduct: a new property tax or zoning
regulation may upset the reasonable expectations that prompted those
affected to acquire property; a new law banning gambling harms the per-
son who had begun to construct a casino before the law's enactment or
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270 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
whether the new provision attaches new legal consequences
to events completed before its enactment. The conclusion
that a particular rule operates "retroactively" comes at the
end of a process of judgment concerning the nature and ex-
tent of the change in the law and the degree of connection
between the operation of the new rule and a relevant past
event. Any test of retroactivity will leave room for dis-
agreement in hard cases, and is unlikely to classify the enor-
mous variety of legal changes with perfect philosophical clar-
ity. However, retroactivity is a matter on which judges tend
to have "sound . . . instinct[s]," see Danforth v. Groton Water
Co., 178 Mass. 472, 476, 59 N. E. 1033, 1034 (1901) (Holmes,
J.), and familiar considerations of fair notice, reasonable reli-
ance, and settled expectations offer sound guidance.
Since the early days of this Court, we have declined to
give retroactive effect to statutes burdening private rights
unless Congress had made clear its intent. Thus, in United
States v. Heth, 3 Cranch 399 (1806), we refused to apply a
federal statute reducing the commissions of customs collec-
tors to collections commenced before the statute's enactment
because the statute lacked "clear, strong, and imperative"
language requiring retroactive application, id., at 413 (opin-
ion of Paterson, J.). The presumption against statutory ret-
roactivity has consistently been explained by reference to
the unfairness of imposing new burdens on persons after the
fact. Indeed, at common law a contrary rule applied to stat-
utes that merely removed a burden on private rights by re-
pealing a penal provision (whether criminal or civil); such
spent his life learning to count cards. See Fuller 60 ("If every time a
man relied on existing law in arranging his affairs, he were made secure
against any change in legal rules, the whole body of our law would be
ossified forever"). Moreover, a statute "is not made retroactive merely
because it draws upon antecedent facts for its operation." Cox v. Hart,
260 U. S. 427, 435 (1922). See Reynolds v. United States, 292 U. S. 443,
444Â449 (1934); Chicago & Alton R. Co. v. Tranbarger, 238 U. S. 67, 73
(1915).
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Opinion of the Court
repeals were understood to preclude punishment for acts an-
tedating the repeal. See, e. g., United States v. Chambers,
291 U. S. 217, 223Â224 (1934); Gulf, C. & S. F. R. Co. v. Den-
nis, 224 U. S. 503, 506 (1912); United States v. Tynen, 11 Wall.
88, 93Â95 (1871); Norris v. Crocker, 13 How. 429, 440Â441
(1852); Maryland ex rel. Washington Cty. v. Baltimore &
Ohio R. Co., 3 How. 534, 552 (1845); Yeaton v. United States,
5 Cranch 281, 284 (1809). But see 1 U. S. C. § 109 (repealing
common-law rule).
The largest category of cases in which we have applied
the presumption against statutory retroactivity has involved
new provisions affecting contractual or property rights, mat-
ters in which predictability and stability are of prime impor-
tance.25 The presumption has not, however, been limited to
such cases. At issue in Chew Heong v. United States, 112
U. S. 536 (1884), for example, was a provision of the "Chinese
Restriction Act" of 1882 barring Chinese laborers from reen-
tering the United States without a certificate prepared when
they exited this country. We held that the statute did not
bar the reentry of a laborer who had left the United States
before the certification requirement was promulgated. Jus-
tice Harlan's opinion for the Court observed that the law in
effect before the 1882 enactment had accorded laborers a
right to reenter without a certificate, and invoked the "uni-
formly" accepted rule against "giv[ing] to statutes a retro-
25 See, e. g., United States v. Security Industrial Bank, 459 U. S. 70,
79Â82 (1982); Claridge Apartments Co. v. Commissioner, 323 U. S. 141,
164 (1944); United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3
(1926); Holt v. Henley, 232 U. S. 637, 639 (1914); Union Pacific R. Co. v.
Laramie Stock Yards Co., 231 U. S., at 199; Twenty per Cent. Cases, 20
Wall. 179, 187 (1874); Sohn v. Waterson, 17 Wall. 596, 599 (1873); Carroll
v. Lessee of Carroll, 16 How. 275 (1854). While the great majority of our
decisions relying upon the antiretroactivity presumption have involved in-
tervening statutes burdening private parties, we have applied the pre-
sumption in cases involving new monetary obligations that fell only on the
government. See United States v. Magnolia Petroleum Co., 276 U. S. 160
(1928); White v. United States, 191 U. S. 545 (1903).
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272 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
spective operation, whereby rights previously vested are in-
juriously affected, unless compelled to do so by language so
clear and positive as to leave no room to doubt that such was
the intention of the legislature." Id., at 559.
Our statement in Bowen that "congressional enactments
and administrative rules will not be construed to have ret-
roactive effect unless their language requires this result,"
488 U. S., at 208, was in step with this long line of cases.26
Bowen itself was a paradigmatic case of retroactivity in
which a federal agency sought to recoup, under cost limit
regulations issued in 1984, funds that had been paid to hospi-
tals for services rendered earlier, see id., at 207; our search
for clear congressional intent authorizing retroactivity was
consistent with the approach taken in decisions spanning
two centuries.
The presumption against statutory retroactivity had spe-
cial force in the era in which courts tended to view legislative
interference with property and contract rights circum-
spectly. In this century, legislation has come to supply the
dominant means of legal ordering, and circumspection has
given way to greater deference to legislative judgments.
See Usery v. Turner Elkhorn Mining Co., 428 U. S., at
15Â16; Home Building & Loan Assn. v. Blaisdell, 290 U. S.
398, 436Â444 (1934). But while the constitutional impedi-
ments to retroactive civil legislation are now modest, pros-
pectivity remains the appropriate default rule. Because
it accords with widely held intuitions about how statutes
ordinarily operate, a presumption against retroactivity will
generally coincide with legislative and public expectations.
Requiring clear intent assures that Congress itself has
affirmatively considered the potential unfairness of retroac-
tive application and determined that it is an acceptable price
26 See also, e. g., Greene v. United States, 376 U. S. 149, 160 (1964); White
v. United States, 191 U. S. 545 (1903); United States v. Moore, 95 U. S. 760,
762 (1878); Murray v. Gibson, 15 How. 421, 423 (1854); Ladiga v. Roland,
2 How. 581, 589 (1844).
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Opinion of the Court
to pay for the countervailing benefits. Such a requirement
allocates to Congress responsibility for fundamental policy
judgments concerning the proper temporal reach of statutes,
and has the additional virtue of giving legislators a predict-
able background rule against which to legislate.
B
Although we have long embraced a presumption against
statutory retroactivity, for just as long we have recognized
that, in many situations, a court should "apply the law in
effect at the time it renders its decision," Bradley, 416 U. S.,
at 711, even though that law was enacted after the events
that gave rise to the suit. There is, of course, no conflict
between that principle and a presumption against retroac-
tivity when the statute in question is unambiguous. Chief
Justice Marshall's opinion in United States v. Schooner
Peggy, 1 Cranch 103 (1801), illustrates this point. Because
a treaty signed on September 30, 1800, while the case was
pending on appeal, unambiguously provided for the restora-
tion of captured property "not yet definitively condemned,"
id., at 107 (emphasis in original), we reversed a decree en-
tered on September 23, 1800, condemning a French vessel
that had been seized in American waters. Our application
of "the law in effect" at the time of our decision in Schooner
Peggy was simply a response to the language of the statute.
Id., at 109.
Even absent specific legislative authorization, application
of new statutes passed after the events in suit is unquestion-
ably proper in many situations. When the intervening stat-
ute authorizes or affects the propriety of prospective relief,
application of the new provision is not retroactive. Thus, in
American Steel Foundries v. Tri-City Central Trades Coun-
cil, 257 U. S. 184 (1921), we held that § 20 of the Clayton Act,
enacted while the case was pending on appeal, governed the
propriety of injunctive relief against labor picketing. In re-
manding the suit for application of the intervening statute,
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274 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
we observed that "relief by injunction operates in futuro,"
and that the plaintiff had no "vested right" in the decree
entered by the trial court. 257 U. S., at 201. See also, e. g.,
Hall v. Beals, 396 U. S. 45, 48 (1969); Duplex Printing Press
Co. v. Deering, 254 U. S. 443, 464 (1921).
We have regularly applied intervening statutes conferring
or ousting jurisdiction, whether or not jurisdiction lay when
the underlying conduct occurred or when the suit was filed.
Thus, in Bruner v. United States, 343 U. S. 112, 116Â117
(1952), relying on our "consisten[t]" practice, we ordered an
action dismissed because the jurisdictional statute under
which it had been (properly) filed was subsequently re-
pealed.27 See also Hallowell v. Commons, 239 U. S. 506,
508Â509 (1916); Assessors v. Osbornes, 9 Wall. 567, 575 (1870).
Conversely, in Andrus v. Charlestone Stone Products Co.,
436 U. S. 604, 607Â608, n. 6 (1978), we held that, because
a statute passed while the case was pending on appeal
had eliminated the amount-in-controversy requirement for
federal-question cases, the fact that respondent had failed to
allege $10,000 in controversy at the commencement of the
action was "now of no moment." See also United States v.
Alabama, 362 U. S. 602, 604 (1960) (per curiam); Stephens
v. Cherokee Nation, 174 U. S. 445, 478 (1899). Application
of a new jurisdictional rule usually "takes away no substan-
tive right but simply changes the tribunal that is to hear the
case." Hallowell, 239 U. S., at 508. Present law normally
governs in such situations because jurisdictional statutes
"speak to the power of the court rather than to the rights or
obligations of the parties," Republic Nat. Bank of Miami,
506 U. S., at 100 (Thomas, J., concurring).
27 In Bruner, we specifically noted:
"This jurisdictional rule does not affect the general principle that a stat-
ute is not to be given retroactive effect unless such construction is re-
quired by explicit language or by necessary implication. Compare United
States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3 (1926), with Smallwood
v. Gallardo, 275 U. S. 56, 61 (1927)." 343 U. S., at 117, n. 8.
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Opinion of the Court
Changes in procedural rules may often be applied in suits
arising before their enactment without raising concerns
about retroactivity. For example, in Ex parte Collett, 337
U. S. 55, 71 (1949), we held that 28 U. S. C. § 1404(a) governed
the transfer of an action instituted prior to that statute's
enactment. We noted the diminished reliance interests in
matters of procedure. 337 U. S., at 71.28 Because rules of
procedure regulate secondary rather than primary conduct,
the fact that a new procedural rule was instituted after the
conduct giving rise to the suit does not make application of
the rule at trial retroactive. Cf. McBurney v. Carson, 99
U. S. 567, 569 (1879).29
28 While we have strictly construed the Ex Post Facto Clause to prohibit
application of new statutes creating or increasing punishments after the
fact, we have upheld intervening procedural changes even if application
of the new rule operated to a defendant's disadvantage in the particular
case. See, e. g., Dobbert v. Florida, 432 U. S. 282, 293Â294 (1977); see
also Collins v. Youngblood, 497 U. S. 37 (1990); Beazell v. Ohio, 269 U. S.
167 (1925).
29 Of course, the mere fact that a new rule is procedural does not mean
that it applies to every pending case. A new rule concerning the filing of
complaints would not govern an action in which the complaint had already
been properly filed under the old regime, and the promulgation of a new
rule of evidence would not require an appellate remand for a new trial.
Our orders approving amendments to federal procedural rules reflect the
commonsense notion that the applicability of such provisions ordinarily
depends on the posture of the particular case. See, e. g., Order Amending
Federal Rules of Criminal Procedure, 495 U. S. 969 (1990) (amendments
applicable to pending cases "insofar as just and practicable"); Order
Amending Federal Rules of Civil Procedure, 456 U. S. 1015 (1982) (same);
Order Amending Bankruptcy Rules and Forms, 421 U. S. 1021 (1975)
(amendments applicable to pending cases "except to the extent that in the
opinion of the court their application in a particular proceeding then pend-
ing would not be feasible or would work injustice"). Contrary to Justice
Scalia's suggestion, post, at 290, we do not restrict the presumption
against statutory retroactivity to cases involving "vested rights." (Nei-
ther is Justice Story's definition of retroactivity, quoted supra, at 269, so
restricted.) Nor do we suggest that concerns about retroactivity have no
application to procedural rules.
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Opinion of the Court
Petitioner relies principally upon Bradley v. School Bd.
of Richmond, 416 U. S. 696 (1974), and Thorpe v. Housing
Authority of Durham, 393 U. S. 268 (1969), in support of
her argument that our ordinary interpretive rules support
application of § 102 to her case. In Thorpe, we held that an
agency circular requiring a local housing authority to give
notice of reasons and opportunity to respond before evicting
a tenant was applicable to an eviction proceeding commenced
before the regulation issued. Thorpe shares much with both
the "procedural" and "prospective-relief" cases. See supra,
at 273Â275. Thus, we noted in Thorpe that new hearing pro-
cedures did not affect either party's obligations under the
lease agreement between the housing authority and the peti-
tioner, 393 U. S., at 279, and, because the tenant had "not yet
vacated," we saw no significance in the fact that the housing
authority had "decided to evict her before the circular was
issued," id., at 283. The Court in Thorpe viewed the new
eviction procedures as "essential to remove a serious impedi-
ment to the successful protection of constitutional rights."
Ibid.30 Cf. Youakim v. Miller, 425 U. S. 231, 237 (1976) (per
curiam) (citing Thorpe for propriety of applying new law to
avoiding necessity of deciding constitutionality of old one).
Our holding in Bradley is similarly compatible with the
line of decisions disfavoring "retroactive" application of stat-
utes. In Bradley, the District Court had awarded attor-
ney's fees and costs, upon general equitable principles, to
parents who had prevailed in an action seeking to desegre-
gate the public schools of Richmond, Virginia. While the
30 Thorpe is consistent with the principle, analogous to that at work in
the common-law presumption about repeals of criminal statutes, that the
government should accord grace to private parties disadvantaged by an
old rule when it adopts a new and more generous one. Cf. DeGurules v.
INS, 833 F. 2d 861, 862Â863 (CA9 1987). Indeed, Thorpe twice cited
United States v. Chambers, 291 U. S. 217 (1934), which ordered dismissal
of prosecutions pending when the National Prohibition Act was repealed.
See Thorpe, 393 U. S., at 281, n. 38; id., at 282, n. 40.
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Opinion of the Court
case was pending before the Court of Appeals, Congress en-
acted § 718 of the Education Amendments of 1972, which au-
thorized federal courts to award the prevailing parties in
school desegregation cases a reasonable attorney's fee. The
Court of Appeals held that the new fee provision did not
authorize the award of fees for services rendered before the
effective date of the amendments. This Court reversed.
We concluded that the private parties could rely on § 718 to
support their claim for attorney's fees, resting our decision
"on the principle that a court is to apply the law in effect at
the time it renders its decision, unless doing so would result
in manifest injustice or there is statutory direction or legisla-
tive history to the contrary." 416 U. S., at 711.
Although that language suggests a categorical presump-
tion in favor of application of all new rules of law, we now
make it clear that Bradley did not alter the well-settled pre-
sumption against application of the class of new statutes that
would have genuinely "retroactive" effect. Like the new
hearing requirement in Thorpe, the attorney's fee provision
at issue in Bradley did not resemble the cases in which we
have invoked the presumption against statutory retroactiv-
ity. Attorney's fee determinations, we have observed, are
"collateral to the main cause of action" and "uniquely separa-
ble from the cause of action to be proved at trial." White
v. New Hampshire Dept. of Employment Security, 455 U. S.
445, 451Â452 (1982). See also Hutto v. Finney, 437 U. S. 678,
695, n. 24 (1978). Moreover, even before the enactment of
§ 718, federal courts had authority (which the District Court
in Bradley had exercised) to award fees based upon equitable
principles. As our opinion in Bradley made clear, it would
be difficult to imagine a stronger equitable case for an attor-
ney's fee award than a lawsuit in which the plaintiff parents
would otherwise have to bear the costs of desegregating
their children's public schools. See 416 U. S., at 718 (noting
that the plaintiffs had brought the school board "into compli-
ance with its constitutional mandate") (citing Brown v. Board
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278 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
of Education, 347 U. S. 483, 494 (1954)). In light of the prior
availability of a fee award, and the likelihood that fees would
be assessed under pre-existing theories, we concluded that
the new fee statute simply "d[id] not impose an additional or
unforeseeable obligation" upon the school board. Bradley,
416 U. S., at 721.
In approving application of the new fee provision, Bradley
did not take issue with the long line of decisions applying
the presumption against retroactivity. Our opinion distin-
guished, but did not criticize, prior cases that had applied
the antiretroactivity canon. See id., at 720 (citing Greene v.
United States, 376 U. S. 149, 160 (1964); Claridge Apart-
ments Co. v. Commissioner, 323 U. S. 141, 164 (1944), and
Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S.
190, 199 (1913)). The authorities we relied upon in Bradley
lend further support to the conclusion that we did not intend
to displace the traditional presumption against applying stat-
utes affecting substantive rights, liabilities, or duties to con-
duct arising before their enactment. See Kaiser, 494 U. S.,
at 849Â850 (Scalia, J., concurring). Bradley relied on
Thorpe and on other precedents that are consistent with a
presumption against statutory retroactivity, including deci-
sions involving explicitly retroactive statutes, see 416 U. S.,
at 713, n. 17 (citing, inter alia, Freeborn v. Smith, 2 Wall. 160
(1865)),31 the retroactive application of intervening judicial
decisions, see 416 U. S., at 713Â714, n. 17 (citing, inter alia,
Patterson v. Alabama, 294 U. S. 600, 607 (1935)),32 statutes
31 In Bradley, we cited Schooner Peggy for the "current law" principle,
but we recognized that the law at issue in Schooner Peggy had expressly
called for retroactive application. See 416 U. S., at 712, n. 16 (describing
Schooner Peggy as holding that Court was obligated to "apply the terms
of the convention," which had recited that it applied to all vessels not yet
"definitively condemned") (emphasis in convention).
32 At the time Bradley was decided, it was by no means a truism to point
out that rules announced in intervening judicial decisions should normally
be applied to a case pending when the intervening decision came down.
In 1974, our doctrine on judicial retroactivity involved a substantial meas-
ure of discretion, guided by equitable standards resembling the Bradley
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Opinion of the Court
altering jurisdiction, 416 U. S., at 713, n. 17 (citing, inter alia,
United States v. Alabama, 362 U. S. 602 (1960)), and repeal
of a criminal statute, 416 U. S., at 713, n. 17 (citing United
States v. Chambers, 291 U. S. 217 (1934)). Moreover, in none
of our decisions that have relied upon Bradley or Thorpe
have we cast doubt on the traditional presumption against
truly "retrospective" application of a statute.33
"manifest injustice" test itself. See Chevron Oil Co. v. Huson, 404 U. S.
97, 106Â107 (1971); Linkletter v. Walker, 381 U. S. 618, 636 (1965). While
it was accurate in 1974 to say that a new rule announced in a judicial
decision was only presumptively applicable to pending cases, we have
since established a firm rule of retroactivity. See Harper v. Virginia
Dept. of Taxation, 509 U. S. 86 (1993); Griffith v. Kentucky, 479 U. S. 314
(1987).
33 See, e. g., Treasury Employees v. Von Raab, 489 U. S. 656, 661Â662,
and n. 1 (1989) (considering intervening regulations in injunctive action
challenging agency's drug testing policy under Fourth Amendment) (citing
Thorpe); Goodman v. Lukens Steel Co., 482 U. S. 656, 662 (1987) (applying
rule announced in judicial decision to case arising before the decision and
citing Bradley for the "usual rule . . . that federal cases should be decided
in accordance with the law existing at the time of the decision"); Saint
Francis College v. Al-Khazraji, 481 U. S. 604, 608 (1987) (in case involving
retroactivity of judicial decision, citing Thorpe for same "usual rule");
Hutto v. Finney, 437 U. S., at 694, n. 23 (relying on "general practice" and
Bradley to uphold award of attorney's fees under statute passed after the
services had been rendered but while case was still pending); Youakim,
425 U. S., at 237 (per curiam) (remanding for reconsideration of constitu-
tional claim for injunctive relief in light of intervening state regulations)
(citing Thorpe); Cort v. Ash, 422 U. S. 66, 77 (1975) (stating that Bradley
warranted application of intervening statute transferring to administra-
tive agency jurisdiction over claim for injunctive relief); Hamling v.
United States, 418 U. S. 87, 101Â102 (1974) (reviewing obscenity conviction
in light of subsequent First Amendment decision of this Court) (citing
Bradley); California Bankers Assn. v. Shultz, 416 U. S. 21, 49, n. 21 (1974)
(in action for injunction against enforcement of banking disclosure statute,
citing Thorpe for proposition that Court should consider constitutional
question in light of regulations issued after commencement of suit); Dif-
fenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 414
(1972) (citing Thorpe in holding that intervening repeal of a state tax ex-
emption for certain church property rendered "inappropriate" petitioner's
request for injunctive relief based on the Establishment Clause); Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419 (1971) (refusing
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280 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
When a case implicates a federal statute enacted after the
events in suit, the court's first task is to determine whether
Congress has expressly prescribed the statute's proper
reach. If Congress has done so, of course, there is no need
to resort to judicial default rules. When, however, the stat-
ute contains no such express command, the court must deter-
mine whether the new statute would have retroactive effect,
i. e., whether it would impair rights a party possessed when
he acted, increase a party's liability for past conduct, or
impose new duties with respect to transactions already
completed. If the statute would operate retroactively, our
traditional presumption teaches that it does not govern
absent clear congressional intent favoring such a result.
V
We now ask whether, given the absence of guiding instruc-
tions from Congress, § 102 of the Civil Rights Act of 1991 is
the type of provision that should govern cases arising before
its enactment. As we observed supra, at 260Â261, and n. 12,
there is no special reason to think that all the diverse provi-
sions of the Act must be treated uniformly for such purposes.
To the contrary, we understand the instruction that the pro-
visions are to "take effect upon enactment" to mean that
courts should evaluate each provision of the Act in light of
ordinary judicial principles concerning the application of new
rules to pending cases and preenactment conduct.
Two provisions of § 102 may be readily classified according
to these principles. The jury trial right set out in § 102(c)(1)
is plainly a procedural change of the sort that would ordi-
narily govern in trials conducted after its effective date. If
§ 102 did no more than introduce a right to jury trial in Title
to remand to agency under Thorpe for administrative findings required by
new regulation because administrative record was already adequate for
judicial review); Hall v. Beals, 396 U. S. 45, 48 (1969) (in action for injunc-
tive relief from state election statute, citing Thorpe as authority for con-
sidering intervening amendment of statute).
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Opinion of the Court
VII cases, the provision would presumably apply to cases
tried after November 21, 1991, regardless of when the under-
lying conduct occurred.34 However, because § 102(c) makes
a jury trial available only "[i]f a complaining party seeks
compensatory or punitive damages," the jury trial option
must stand or fall with the attached damages provisions.
Section 102(b)(1) is clearly on the other side of the line.
That subsection authorizes punitive damages if the plaintiff
shows that the defendant "engaged in a discriminatory prac-
tice or discriminatory practices with malice or with reckless
indifference to the federally protected rights of an aggrieved
individual." The very labels given "punitive" or "exem-
plary" damages, as well as the rationales that support them,
demonstrate that they share key characteristics of crimi-
nal sanctions. Retroactive imposition of punitive damages
would raise a serious constitutional question. See Turner
Elkhorn, 428 U. S., at 17 (Court would "hesitate to approve
the retrospective imposition of liability on any theory of de-
terrence . . . or blameworthiness"); De Veau v. Braisted, 363
U. S. 144, 160 (1960) ("The mark of an ex post facto law is
the imposition of what can fairly be designated punishment
for past acts"). See also Louis Vuitton S. A. v. Spencer
Handbags Corp., 765 F. 2d 966, 972 (CA2 1985) (retroactive
application of punitive treble damages provisions of Trade-
mark Counterfeiting Act of 1984 "would present a potential
ex post facto problem"). Before we entertained that ques-
tion, we would have to be confronted with a statute that
explicitly authorized punitive damages for preenactment con-
duct. The Civil Rights Act of 1991 contains no such ex-
plicit command.
The provision of § 102(a)(1) authorizing the recovery of
compensatory damages is not easily classified. It does not
34 As the Court of Appeals recognized, however, the promulgation of a
new jury trial rule would ordinarily not warrant retrial of cases that had
previously been tried to a judge. See n. 29, supra. Thus, customary
practice would not support remand for a jury trial in this case.
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282 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
make unlawful conduct that was lawful when it occurred; as
we have noted, supra, at 252Â255, § 102 only reaches discrim-
inatory conduct already prohibited by Title VII. Concerns
about a lack of fair notice are further muted by the fact that
such discrimination was in many cases (although not this
one) already subject to monetary liability in the form of
backpay. Nor could anyone seriously contend that the com-
pensatory damages provisions smack of a "retributive" or
other suspect legislative purpose. Section 102 reflects Con-
gress' desire to afford victims of discrimination more com-
plete redress for violations of rules established more than a
generation ago in the Civil Rights Act of 1964. At least
with respect to its compensatory damages provisions, then,
§ 102 is not in a category in which objections to retroactive
application on grounds of fairness have their greatest force.
Nonetheless, the new compensatory damages provision
would operate "retrospectively" if it were applied to con-
duct occurring before November 21, 1991. Unlike certain
other forms of relief, compensatory damages are quintes-
sentially backward looking. Compensatory damages may be
intended less to sanction wrongdoers than to make victims
whole, but they do so by a mechanism that affects the liabili-
ties of defendants. They do not "compensate" by distribut-
ing funds from the public coffers, but by requiring particular
employers to pay for harms they caused. The introduction
of a right to compensatory damages is also the type of legal
change that would have an impact on private parties' plan-
ning.35 In this case, the event to which the new damages
35 As petitioner and amici suggest, concerns of unfair surprise and up-
setting expectations are attenuated in the case of intentional employment
discrimination, which has been unlawful for more than a generation. How-
ever, fairness concerns would not be entirely absent if the damages provi-
sions of § 102 were to apply to events preceding its enactment, as the facts
of this case illustrate. Respondent USI's management, when apprised of
the wrongful conduct of petitioner's co-worker, took timely action to rem-
edy the problem. The law then in effect imposed no liability on an em-
ployer who corrected discriminatory work conditions before the conditions
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Opinion of the Court
provision relates is the discriminatory conduct of respond-
ents' agent John Williams; if applied here, that provision
would attach an important new legal burden to that conduct.
The new damages remedy in § 102, we conclude, is the kind
of provision that does not apply to events antedating its en-
actment in the absence of clear congressional intent.
In cases like this one, in which prior law afforded no relief,
§ 102 can be seen as creating a new cause of action, and its
impact on parties' rights is especially pronounced. Section
102 confers a new right to monetary relief on persons like
petitioner who were victims of a hostile work environment
but were not constructively discharged, and the novel pros-
pect of damages liability for their employers. Because Title
VII previously authorized recovery of backpay in some
cases, and because compensatory damages under § 102(a) are
in addition to any backpay recoverable, the new provision
also resembles a statute increasing the amount of damages
available under a preestablished cause of action. Even
under that view, however, the provision would, if applied in
cases arising before the Act's effective date, undoubtedly im-
pose on employers found liable a "new disability" in respect
to past events. See Society for Propagation of the Gospel,
22 F. Cas., at 767. The extent of a party's liability, in the
civil context as well as the criminal, is an important legal
became so severe as to result in the victim's constructive discharge. As-
sessing damages against respondents on a theory of respondeat superior
would thus entail an element of surprise. Even when the conduct in ques-
tion is morally reprehensible or illegal, a degree of unfairness is inherent
whenever the law imposes additional burdens based on conduct that oc-
curred in the past. Cf. Weaver, 450 U. S., at 28Â30 (Ex Post Facto Clause
assures fair notice and governmental restraint, and does not turn on "an
individual's right to less punishment"). The new damages provisions of
§ 102 can be expected to give managers an added incentive to take preven-
tive measures to ward off discriminatory conduct by subordinates before
it occurs, but that purpose is not served by applying the regime to pre-
enactment conduct.
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284 LANDGRAF v. USI FILM PRODUCTS
Opinion of the Court
consequence that cannot be ignored.36 Neither in Bradley
itself, nor in any case before or since in which Congress had
not clearly spoken, have we read a statute substantially in-
creasing the monetary liability of a private party to apply to
conduct occurring before the statute's enactment. See Win-
free v. Northern Pacific R. Co., 227 U. S. 296, 301 (1913) (stat-
ute creating new federal cause of action for wrongful death
inapplicable to case arising before enactment in absence of
"explicit words" or "clear implication"); United States Fidel-
ity & Guaranty Co. v. United States ex rel. Struthers Wells
36 The state courts have consistently held that statutes changing or abol-
ishing limits on the amount of damages available in wrongful-death actions
should not, in the absence of clear legislative intent, apply to actions aris-
ing before their enactment. See, e. g., Dempsey v. State, 451 A. 2d 273
(R. I. 1982) ("Every court which has considered the issue . . . has found
that a subsequent change as to the amount or the elements of damage in
the wrongful-death statute to be substantive rather than procedural or
remedial, and thus any such change must be applied prospectively"); Klei-
brink v. Missouri-Kansas-Texas R. Co., 224 Kan. 437, 444, 581 P. 2d 372,
378 (1978) (holding, in accord with the "great weight of authority," that
"an increase, decrease or repeal of the statutory maximum recoverable in
wrongful death actions is not retroactive" and thus should not apply in a
case arising before the statute's enactment) (emphasis in original); Brad-
ley v. Knutson, 62 Wis. 2d 432, 436, 215 N. W. 2d 369, 371 (1974) (refusing
to apply increase in cap on damages for wrongful death to misconduct
occurring before effective date; "statutory increases in damage[s] limita-
tions are actually changes in substantive rights and not mere remedial
changes"); State ex rel. St. Louis-San Francisco R. Co. v. Buder, 515
S. W. 2d 409, 411 (Mo. 1974) (statute removing wrongful-death liability
limitation construed not to apply to preenactment conduct; "an act or
transaction, to which certain legal effects were ascribed at the time they
transpired, should not, without cogent reasons, thereafter be subject to a
different set of effects which alter the rights and liabilities of the parties
thereto"); Mihoy v. Proulx, 113 N. H. 698, 701, 313 A. 2d 723, 725 (1973)
("To apply the increased limit after the date of the accident would clearly
enlarge the defendant's liability retrospectively. In the absence of an ex-
press provision, we cannot conclude that the legislature intended retro-
spective application"). See also Fann v. McGuffy, 534 S. W. 2d 770, 774,
n. 19 (Ky. 1975); Muckler v. Buchl, 150 N. W. 2d 689, 697 (Minn. 1967).
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Opinion of the Court
Co., 209 U. S. 306, 314Â315 (1908) (construing statute re-
stricting subcontractors' rights to recover damages from
prime contractors as prospective in absence of "clear,
strong and imperative" language from Congress favoring
retroactivity).37
It will frequently be true, as petitioner and amici force-
fully argue here, that retroactive application of a new statute
would vindicate its purpose more fully.38 That consider-
37 We have sometimes said that new "remedial" statutes, like new "pro-
cedural" ones, should presumptively apply to pending cases. See, e. g.,
Ex parte Collett, 337 U. S., at 71, and n. 38 ("Clearly, § 1404(a) is a remedial
provision applicable to pending actions"); Beazell, 269 U. S., at 171 (Ex
Post Facto Clause does not limit "legislative control of remedies and
modes of procedure which do not affect matters of substance"). While
that statement holds true for some kinds of remedies, see supra, at 273Â
274 (discussing prospective relief), we have not classified a statute intro-
ducing damages liability as the sort of "remedial" change that should
presumptively apply in pending cases. "Retroactive modification" of
damages remedies may "normally harbo[r] much less potential for mischief
than retroactive changes in the principles of liability," Hastings v. Earth
Satellite Corp., 628 F. 2d 85, 93 (CADC), cert. denied, 449 U. S. 905 (1980),
but that potential is nevertheless still significant.
38 Petitioner argues that our decision in Franklin v. Gwinnett County
Public Schools, 503 U. S. 60 (1992), supports application of § 102 to her
case. Relying on the principle that "where legal rights have been in-
vaded, and a federal statute provides for a general right to sue for such
invasion, federal courts may use any available remedy to make good the
wrong,' " id., at 66 (quoting Bell v. Hood, 327 U. S. 678, 684 (1946)), we
held in Franklin that the right of action under Title IX of the Education
Amendments of 1972 included a claim for damages. Petitioner argues
that Franklin supports her position because, if she cannot obtain damages
pursuant to § 102, she will be left remediless despite an adjudged violation
of her right under Title VII to be free of workplace discrimination. How-
ever, Title VII of the Civil Rights Act of 1964 is not a statute to which we
would apply the "traditional presumption in favor of all available reme-
dies." 503 U. S., at 72. That statute did not create a "general right to
sue" for employment discrimination, but instead specified a set of "circum-
scribed remedies." See United States v. Burke, 504 U. S. 229, 240 (1992).
Until the 1991 amendment, the Title VII scheme did not allow for dam-
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286 LANDGRAF v. USI FILM PRODUCTS
Scalia, J., concurring in judgments
ation, however, is not sufficient to rebut the presumption
against retroactivity. Statutes are seldom crafted to pursue
a single goal, and compromises necessary to their enactment
may require adopting means other than those that would
most effectively pursue the main goal. A legislator who
supported a prospective statute might reasonably oppose
retroactive application of the same statute. Indeed, there is
reason to believe that the omission of the 1990 version's ex-
press retroactivity provisions was a factor in the passage of
the 1991 bill. Section 102 is plainly not the sort of provision
that must be understood to operate retroactively because a
contrary reading would render it ineffective.
The presumption against statutory retroactivity is
founded upon sound considerations of general policy and
practice, and accords with long held and widely shared ex-
pectations about the usual operation of legislation. We are
satisfied that it applies to § 102. Because we have found no
clear evidence of congressional intent that § 102 of the Civil
Rights Act of 1991 should apply to cases arising before its
enactment, we conclude that the judgment of the Court of
Appeals must be affirmed.
It is so ordered.
Justice Scalia, with whom Justice Kennedy and
Justice Thomas join, concurring in the judgments.*
I
I of course agree with the Court that there exists a judicial
presumption, of great antiquity, that a legislative enactment
affecting substantive rights does not apply retroactively ab-
sent clear statement to the contrary. See generally Kaiser
ages. We are not free to fashion remedies that Congress has specifically
chosen not to extend. See Northwest Airlines, Inc. v. Transport Workers,
451 U. S. 77, 97 (1981).
*[This opinion applies also to Rivers v. Roadway Express, Inc., No. 92Â
938, post, p. 298.]
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Scalia, J., concurring in judgments
Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 840
(1990) (Scalia, J., concurring). The Court, however, is will-
ing to let that clear statement be supplied, not by the text
of the law in question, but by individual legislators who par-
ticipated in the enactment of the law, and even legislators in
an earlier Congress which tried and failed to enact a similar
law. For the Court not only combs the floor debate and
Committee Reports of the statute at issue, the Civil Rights
Act of 1991 (1991 Act), Pub. L. 102Â166, 105 Stat. 1071, see
ante, at 262Â263, but also reviews the procedural history of
an earlier, unsuccessful, attempt by a different Congress to
enact similar legislation, the Civil Rights Act of 1990, S. 2104,
101st Cong., 1st Sess. (1990), see ante, at 255Â257, 263.
This effectively converts the "clear statement" rule into a
"discernible legislative intent" rule-and even that under-
states the difference. The Court's rejection of the floor
statements of certain Senators because they are "frankly
partisan" and "cannot plausibly be read as reflecting any gen-
eral agreement," ante, at 262, reads like any other exercise
in the soft science of legislative historicizing,1 undisciplined
by any distinctive "clear statement" requirement. If it is a
"clear statement" we are seeking, surely it is not enough to
insist that the statement can "plausibly be read as reflecting
general agreement"; the statement must clearly reflect
general agreement. No legislative history can do that, of
course, but only the text of the statute itself. That has been
the meaning of the "clear statement" retroactivity rule from
the earliest times. See, e. g., United States v. Heth, 3
Cranch 399, 408 (1806) (Johnson, J.) ("Unless, therefore, the
words are too imperious to admit of a different construction,
[the Court should] restric[t] the words of the law to a future
1 In one respect, I must acknowledge, the Court's effort may be unique.
There is novelty as well as irony in its supporting the judgment that the
floor statements on the 1991 Act are unreliable by citing Senator Dan-
forth's floor statement on the 1991 Act to the effect that floor statements
on the 1991 Act are unreliable. See ante, at 262Â263, n. 15.
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288 LANDGRAF v. USI FILM PRODUCTS
Scalia, J., concurring in judgments
operation"); id., at 414 (Cushing, J.) ("[I]t [is] unreasonable,
in my opinion, to give the law a construction, which would
have such a retrospective effect, unless it contained express
words to that purpose"); Murray v. Gibson, 15 How. 421, 423
(1854) (statutes do not operate retroactively unless "required
by express command or by necessary and unavoidable impli-
cation"); Shwab v. Doyle, 258 U. S. 529, 537 (1922) ("[A] stat-
ute should not be given a retrospective operation unless its
words make that imperative"); see also Bonjorno, supra, at
842Â844 (concurring opinion) (collecting cases applying the
clear statement test). I do not deem that clear rule to be
changed by the Court's dicta regarding legislative history in
the present case.
The 1991 Act does not expressly state that it operates ret-
roactively, but petitioner contends that its specification of
prospective-only application for two sections, §§ 109(c) and
402(b), implies that its other provisions are retroactive.
More precisely, petitioner argues that since § 402(a) states
that "[e]xcept as otherwise specifically provided, [the 1991
Act] shall take effect upon enactment"; and since §§ 109(c)
and 402(b) specifically provide that those sections shall oper-
ate only prospectively; the term "shall take effect upon en-
actment" in § 402(a) must mean retroactive effect. The
short response to this refined and subtle argument is that
refinement and subtlety are no substitute for clear state-
ment. "[S]hall take effect upon enactment" is presumed to
mean "shall have prospective effect upon enactment," and
that presumption is too strong to be overcome by any nega-
tive inference derived from §§ 109(c) and 402(b).2
2 Petitioner suggests that in Pennsylvania v. Union Gas Co., 491 U. S.
1 (1989), the Court found the negative implication of language sufficient to
satisfy the "clear statement" requirement for congressional subjection of
the States to private suit, see Atascadero State Hospital v. Scanlon, 473
U. S. 234, 242 (1985). However, in that case it was the express inclusion
of States in the definition of potentially liable "person[s]," see 42 U. S. C.
§ 9601(21), as reinforced by the limitation of States' liability in certain
limited circumstances, see § 9601(20)(D), that led the Court to find a plain
statement of liability. See 491 U. S., at 11 (noting the "cascade of plain
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Cite as: 511 U. S. 244 (1994) 289
Scalia, J., concurring in judgments
II
The Court's opinion begins with an evaluation of petition-
er's argument that the text of the statute dictates its retro-
active application. The Court's rejection of that argument
cannot be as forceful as it ought, so long as it insists upon
compromising the clarity of the ancient and constant assump-
tion that legislation is prospective, by attributing a compara-
ble pedigree to the nouveau Bradley presumption in favor of
applying the law in effect at the time of decision. See Brad-
ley v. School Bd. of Richmond, 416 U. S. 696, 711Â716 (1974).
As I have demonstrated elsewhere and need not repeat here,
Bradley and Thorpe v. Housing Authority of Durham, 393
U. S. 268 (1969), simply misread our precedents and invented
an utterly new and erroneous rule. See generally Bon-
jorno, supra, at 840 (Scalia, J., concurring).
Besides embellishing the pedigree of the Bradley-Thorpe
presumption, the Court goes out of its way to reaffirm the
holdings of those cases. I see nothing to be gained by over-
ruling them, but neither do I think the indefensible should
needlessly be defended. And Thorpe, at least, is really inde-
fensible. The regulation at issue there required that "be-
fore instituting an eviction proceeding local housing authori-
ties . . . should inform the tenant . . . of the reasons for the
eviction . . . ." Thorpe, supra, at 272, and n. 8 (emphasis
added). The Court imposed that requirement on an eviction
proceeding instituted 18 months before the regulation is-
sued. That application was plainly retroactive and was
wrong. The result in Bradley presents a closer question;
application of an attorney's fees provision to ongoing litiga-
tion is arguably not retroactive. If it were retroactive, how-
ever, it would surely not be saved (as the Court suggests)
by the existence of another theory under which attorney's
fees might have been discretionarily awarded, see ante, at
277Â278.
language" supporting liability); id., at 30 (Scalia, J., concurring in part
and dissenting in part). There is nothing comparable here.
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290 LANDGRAF v. USI FILM PRODUCTS
Scalia, J., concurring in judgments
III
My last, and most significant, disagreement with the
Court's analysis of this case pertains to the meaning of retro-
activity. The Court adopts as its own the definition crafted
by Justice Story in a case involving a provision of the New
Hampshire Constitution that prohibited "retrospective"
laws: a law is retroactive only if it "takes away or impairs
vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability,
in respect to transactions or considerations already past."
Society for Propagation of the Gospel v. Wheeler, 22 F. Cas.
756, 767 (No. 13,156) (CC NH 1814) (Story, J.).
One might expect from this "vested rights" focus that the
Court would hold all changes in rules of procedure (as op-
posed to matters of substance) to apply retroactively. And
one would draw the same conclusion from the Court's formu-
lation of the test as being "whether the new provision at-
taches new legal consequences to events completed before
its enactment"-a test borrowed directly from our Ex Post
Facto Clause jurisprudence, see, e. g., Miller v. Florida, 482
U. S. 423, 430 (1987), where we have adopted a substantive-
procedural line, see id., at 433 ("[N]o ex post facto violation
occurs if the change in the law is merely procedural"). In
fact, however, the Court shrinks from faithfully applying the
test that it has announced. It first seemingly defends the
procedural-substantive distinction that a "vested rights" the-
ory entails, ante, at 275 ("Because rules of procedure regu-
late secondary rather than primary conduct, the fact that a
new procedural rule was instituted after the conduct giving
rise to the suit does not make application of the rule at trial
retroactive"). But it soon acknowledges a broad and ill-
defined (indeed, utterly undefined) exception: "[T]he mere
fact that a new rule is procedural does not mean that it ap-
plies to every pending case." Ante, at 275, n. 29. Under
this exception, "a new rule concerning the filing of com-
plaints would not govern an action in which the complaint
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Scalia, J., concurring in judgments
had already been properly filed," ibid., and "the promulga-
tion of a new jury trial rule would ordinarily not warrant
retrial of cases that had previously been tried to a judge,"
ante, at 281, n. 34. It is hard to see how either of these
refusals to allow retroactive application preserves any
"vested right." " `No one has a vested right in any given
mode of procedure.' " Ex parte Collett, 337 U. S. 55, 71
(1949), quoting Crane v. Hahlo, 258 U. S. 142, 147 (1922).
The seemingly random exceptions to the Court's "vested
rights" (substance-vs.-procedure) criterion must be made, I
suggest, because that criterion is fundamentally wrong. It
may well be that the upsetting of "vested substantive rights"
was the proper touchstone for interpretation of New Hamp-
shire's constitutional prohibition, as it is for interpretation of
the United States Constitution's Ex Post Facto Clauses, see
ante, at 275, n. 28. But I doubt that it has anything to do
with the more mundane question before us here: absent clear
statement to the contrary, what is the presumed temporal
application of a statute? For purposes of that question, a
procedural change should no more be presumed to be retro-
active than a substantive one. The critical issue, I think,
is not whether the rule affects "vested rights," or governs
substance or procedure, but rather what is the relevant ac-
tivity that the rule regulates. Absent clear statement oth-
erwise, only such relevant activity which occurs after the
effective date of the statute is covered. Most statutes are
meant to regulate primary conduct, and hence will not be
applied in trials involving conduct that occurred before their
effective date. But other statutes have a different purpose
and therefore a different relevant retroactivity event. A
new rule of evidence governing expert testimony, for exam-
ple, is aimed at regulating the conduct of trial, and the event
relevant to retroactivity of the rule is introduction of the
testimony. Even though it is a procedural rule, it would un-
questionably not be applied to testimony already taken-
reversing a case on appeal, for example, because the new
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292 LANDGRAF v. USI FILM PRODUCTS
Scalia, J., concurring in judgments
rule had not been applied at a trial which antedated the
statute.
The inadequacy of the Court's "vested rights" approach
becomes apparent when a change in one of the incidents of
trial alters substantive entitlements. The opinion classifies
attorney's fees provisions as procedural and permits "retro-
active" application (in the sense of application to cases in-
volving preenactment conduct). See ante, at 277Â278. It
seems to me, however, that holding a person liable for attor-
ney's fees affects a "substantive right" no less than holding
him liable for compensatory or punitive damages, which the
Court treats as affecting a vested right. If attorney's fees
can be awarded in a suit involving conduct that antedated
the fee-authorizing statute, it is because the purpose of the
fee award is not to affect that conduct, but to encourage suit
for the vindication of certain rights-so that the retroactiv-
ity event is the filing of suit, whereafter encouragement is
no longer needed. Or perhaps because the purpose of the
fee award is to facilitate suit-so that the retroactivity event
is the termination of suit, whereafter facilitation can no
longer be achieved.
The "vested rights" test does not square with our consist-
ent practice of giving immediate effect to statutes that alter
a court's jurisdiction. See, e. g., Bruner v. United States,
343 U. S. 112, 116Â117, and n. 8 (1952); Hallowell v. Com-
mons, 239 U. S. 506 (1916); cf. Ex parte McCardle, 7 Wall.
506, 514 (1869); Insurance Co. v. Ritchie, 5 Wall. 541, 544Â545
(1867); see also King v. Justices of the Peace of London, 3
Burr. 1456, 97 Eng. Rep. 924 (K. B. 1764). The Court ex-
plains this aspect of our retroactivity jurisprudence by not-
ing that "a new jurisdictional rule" will often not involve
retroactivity in Justice Story's sense because it " `takes away
no substantive right but simply changes the tribunal that is
to hear the case.' " Ante, at 274, quoting Hallowell, supra,
at 508. That may be true sometimes, but surely not always.
A jurisdictional rule can deny a litigant a forum for his claim
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Scalia, J., concurring in judgments
entirely, see Portal-to-Portal Act of 1947, 61 Stat. 84, as
amended, 29 U. S. C. §§ 251Â262, or may leave him with an
alternate forum that will deny relief for some collateral rea-
son (e. g., a statute of limitations bar). Our jurisdiction
cases are explained, I think, by the fact that the purpose
of provisions conferring or eliminating jurisdiction is to per-
mit or forbid the exercise of judicial power-so that the rele-
vant event for retroactivity purposes is the moment at which
that power is sought to be exercised. Thus, applying a
jurisdiction-eliminating statute to undo past judicial action
would be applying it retroactively; but applying it to prevent
any judicial action after the statute takes effect is applying
it prospectively.
Finally, statutes eliminating previously available forms of
prospective relief provide another challenge to the Court's
approach. Courts traditionally withhold requested injunc-
tions that are not authorized by then-current law, even if
they were authorized at the time suit commenced and at the
time the primary conduct sought to be enjoined was first
engaged in. See, e. g., American Steel Foundries v. Tri-
City Central Trades Council, 257 U. S. 184 (1921); Duplex
Printing Press Co. v. Deering, 254 U. S. 443, 464 (1921). The
reason, which has nothing to do with whether it is possible
to have a vested right to prospective relief, is that "[o]bvi-
ously, this form of relief operates only in futuro," ibid.
Since the purpose of prospective relief is to affect the future
rather than remedy the past, the relevant time for judging
its retroactivity is the very moment at which it is ordered.3
3 A focus on the relevant retroactivity event also explains why the pre-
sumption against retroactivity is not violated by interpreting a statute
to alter the future legal effect of past transactions-so-called secondary
retroactivity, see Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 219Â
220 (1988) (Scalia, J., concurring) (citing McNulty, Corporations and the
Intertemporal Conflict of Laws, 55 Calif. L. Rev. 12, 58Â60 (1967)); cf. Cox
v. Hart, 260 U. S. 427, 435 (1922). A new ban on gambling applies to
existing casinos and casinos under construction, see ante, at 269Â270, n. 24,
even though it "attaches a new disability" to those past investments. The
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294 LANDGRAF v. USI FILM PRODUCTS
Blackmun, J., dissenting
I do not maintain that it will always be easy to determine,
from the statute's purpose, the relevant event for assessing
its retroactivity. As I have suggested, for example, a statu-
tory provision for attorney's fees presents a difficult case.
Ordinarily, however, the answer is clear-as it is in both
Landgraf and Rivers v. Roadway Express, Inc., post, p. 298.
Unlike the Court, I do not think that any of the provisions
at issue is "not easily classified," ante, at 281. They are all
directed at the regulation of primary conduct, and the occur-
rence of the primary conduct is the relevant event.
Justice Blackmun, dissenting.
Perhaps from an eagerness to resolve the "apparent ten-
sion," see Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U. S. 827, 837 (1990), between Bradley v. School Bd. of
Richmond, 416 U. S. 696 (1974), and Bowen v. Georgetown
Univ. Hospital, 488 U. S. 204 (1988), the Court rejects the
"most logical reading," Kaiser, 494 U. S., at 838, of the Civil
Rights Act of 1991, 105 Stat. 1071 (Act), and resorts to a
presumption against retroactivity. This approach seems to
me to pay insufficient fidelity to the settled principle that the
"starting point for interpretation of a statute `is the language
of the statute itself,' " Kaiser, 494 U. S., at 835, quoting Con-
sumer Product Safety Comm'n v. GTE Sylvania, Inc., 447
U. S. 102, 108 (1980), and extends the presumption against
retroactive legislation beyond its historical reach and
purpose.
A straightforward textual analysis of the Act indicates
that § 102's provision of compensatory damages and its at-
tendant right to a jury trial apply to cases pending on appeal
on the date of enactment. This analysis begins with § 402(a)
of the Act, 105 Stat. 1099: "Except as otherwise specifically
provided, this Act and the amendments made by this Act
relevant retroactivity event is the primary activity of gambling, not the
primary activity of constructing casinos.
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Cite as: 511 U. S. 244 (1994) 295
Blackmun, J., dissenting
shall take effect upon enactment." Under the "settled rule
that a statute must, if possible, be construed in such fashion
that every word has operative effect," United States v. Nor-
dic Village, Inc., 503 U. S. 30, 36 (1992), citing United States
v. Menasche, 348 U. S. 528, 538Â539 (1955), § 402(a)'s quali-
fying clause, "[e]xcept as otherwise specifically provided,"
cannot be dismissed as mere surplusage or an "insurance pol-
icy" against future judicial interpretation. Cf. Gersman v.
Group Health Assn., Inc., 975 F. 2d 886, 890 (CADC 1992).
Instead, it most logically refers to the Act's two sections
"specifically provid[ing]" that the statute does not apply to
cases pending on the date of enactment: (a) § 402(b), 105 Stat.
1099, which provides, in effect, that the Act did not apply to
the then-pending case of Wards Cove Packing Co. v. Atonio,
490 U. S. 642 (1989), and (b) § 109(c), 105 Stat. 1078, which
states that the Act's protections of overseas employment
"shall not apply with respect to conduct occurring before the
date of the enactment of this Act." Self-evidently, if the
entire Act were inapplicable to pending cases, §§ 402(b) and
109(c) would be "entirely redundant." Kungys v. United
States, 485 U. S. 759, 778 (1988) (plurality opinion). Thus,
the clear implication is that, while §§ 402(b) and 109(c) do not
apply to pending cases, other provisions-including § 102-
do.1 " `Absent a clearly expressed legislative intention to
the contrary, [this] language must . . . be regarded as conclu-
sive.' " Kaiser, 494 U. S., at 835, quoting Consumer Product
Safety Comm'n v. GTE Sylvania, Inc., 447 U. S., at 108.
The legislative history of the Act, featuring a welter of con-
flicting and "some frankly partisan" floor statements, ante,
at 262, but no committee report, evinces no such contrary
1 It is, of course, an "unexceptional" proposition that "a particular stat-
ute may in some circumstances implicitly authorize retroactive [applica-
tion]." Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 223 (1988)
(concurring opinion) (emphasis added).
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296 LANDGRAF v. USI FILM PRODUCTS
Blackmun, J., dissenting
legislative intent.2 Thus, I see no reason to dismiss as "un-
likely," ante, at 259, the most natural reading of the statute,
in order to embrace some other reading that is also "possi-
ble," ante, at 260.
Even if the language of the statute did not answer the
retroactivity question, it would be appropriate under our
precedents to apply § 102 to pending cases.3 The well-
established presumption against retroactive legislation,
which serves to protect settled expectations, is grounded in
a respect for vested rights. See, e. g., Smead, The Rule
Against Retroactive Legislation: A Basic Principle of Ju-
risprudence, 20 Minn. L. Rev. 775, 784 (1936) (retroactivity
2 Virtually every Court of Appeals to consider the application of the 1991
Act to pending cases has concluded that the legislative history provides
no reliable guidance. See, e. g., Gersman v. Group Health Assn., Inc., 975
F. 2d 886 (CADC 1992); Mozee v. American Commercial Marine Service
Co., 963 F. 2d 929 (CA7 1992).
The absence in the Act of the strong retroactivity language of the ve-
toed 1990 legislation, which would have applied the new law to final judg-
ments as well as to pending cases, see H. R. 4000, 101st Cong., 2d Sess.,
§ 15(b)(3) (1990), reprinted at 136 Cong. Rec. H6829 (Aug. 3, 1990) (provid-
ing that "any final judgment entered prior to the date of the enactment of
this Act as to which the rights of any of the parties thereto have become
fixed and vested . . . shall be vacated in whole or in part if justice requires"
and the Constitution permits), is not instructive of Congress' intent with
respect to pending cases alone. Significantly, Congress also rejected lan-
guage that put pending claims beyond the reach of the 1990 or 1991 Act.
See id., at H6747 (Michel-LaFalce amendment to 1990 Act) ("The amend-
ments made by this Act shall not apply with respect to claims arising
before the date of enactment of this Act"); id., at H6768 (Michel-LaFalce
amendment rejected); 137 Cong. Rec. S3023 (daily ed. Mar. 12, 1991) (Sen.
Dole's introduction of S. 611, which included the 1990 Act's retroactivity
provision); id., at 13255, 13265Â13266 (introduction and defeat of Michel
substitute for H. R. 1).
3 Directly at issue in this case are compensatory damages and the right
to a jury trial. While there is little unfairness in requiring an employer
to compensate the victims of intentional acts of discrimination, or to have
a jury determine those damages, the imposition of punitive damages for
preenactment conduct represents a more difficult question, one not
squarely addressed in this case and one on which I express no opinion.
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Cite as: 511 U. S. 244 (1994) 297
Blackmun, J., dissenting
doctrine developed as an "inhibition against a construction
which . . . would violate vested rights"). This presumption
need not be applied to remedial legislation, such as § 102,
that does not proscribe any conduct that was previously
legal. See Sampeyreac v. United States, 7 Pet. 222, 238
(1833) ("Almost every law, providing a new remedy, affects
and operates upon causes of action existing at the time the
law is passed"); Hastings v. Earth Satellite Corp., 628 F. 2d
85, 93 (CADC) ("Modification of remedy merely adjusts the
extent, or method of enforcement, of liability in instances in
which the possibility of liability previously was known"),
cert. denied, 449 U. S. 905 (1980); 1 J. Kent, Commentaries
on American Law *455Â*456 (Chancellor Kent's objection to
a law "affecting and changing vested rights" is "not under-
stood to apply to remedial statutes, which may be of a retro-
spective nature, provided they do not impair contracts, or
disturb absolute vested rights").
At no time within the last generation has an employer had
a vested right to engage in or to permit sexual harassment;
" `there is no such thing as a vested right to do wrong.' "
Freeborn v. Smith, 2 Wall. 160, 175 (1865). See also 2 N.
Singer, Sutherland on Statutory Construction § 41.04, p. 349
(4th rev. ed. 1986) (procedural and remedial statutes that do
not take away vested rights are presumed to apply to pend-
ing actions). Section 102 of the Act expands the remedies
available for acts of intentional discrimination, but does not
alter the scope of the employee's basic right to be free from
discrimination or the employer's corresponding legal duty.
There is nothing unjust about holding an employer responsi-
ble for injuries caused by conduct that has been illegal for
almost 30 years.
Accordingly, I respectfully dissent.
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298 OCTOBER TERM, 1993
Syllabus
RIVERS et al. v. ROADWAY EXPRESS, INC.
certiorari to the united states court of appeals for
the sixth circuit
No. 92Â938. Argued October 13, 1993-Decided April 26, 1994
Petitioners filed a complaint under, inter alia, 42 U. S. C. § 1981, alleging
that respondent, their employer, had fired them on baseless charges be-
cause of their race and because they had insisted on the same procedural
protections in disciplinary proceedings that were afforded white em-
ployees. Before the trial, this Court issued Patterson v. McLean
Credit Union, 491 U. S. 164, 171, holding that § 1981's prohibition against
racial discrimination in the making and enforcement of contracts does
not apply to conduct that occurs after the formation of a contract and
that does not interfere with the right to enforce established contract
obligations. The District Court relied on Patterson in dismissing peti-
tioners' discriminatory discharge claims. While their appeal was pend-
ing, the Civil Rights Act of 1991 (1991 Act or Act) became law, § 101 of
which defines § 1981's "make and enforce contracts" phrase to embrace
all phases and incidents of the contractual relationship, including dis-
criminatory contract terminations. The Court of Appeals ruled, among
other things, that § 1981 as interpreted in Patterson, not as amended by
§ 101, governed the case.
Held: Section 101 does not apply to a case that arose before it was en-
acted. Pp. 303Â314.
(a) Landgraf v. USI Film Products, ante, p. 244, in which this Court
concluded that § 102 of the 1991 Act does not apply to cases arising be-
fore its enactment, requires rejection of two of petitioners' submissions
in this case: their negative implication argument based on §§ 402(a),
109(c), and 402(b), see ante, at 257Â263, and their argument that Bradley
v. School Bd. of Richmond, 416 U. S. 696, controls here, rather than the
presumption against statutory retroactivity. Pp. 303Â304.
(b) The fact that § 101 was enacted in response to Patterson does not
supply sufficient evidence of a clear congressional intent to overcome
the presumption against statutory retroactivity. Even assuming that
§ 101 reflects disapproval of Patterson's § 1981 interpretation, and that
most legislators believed that the case was incorrectly decided and rep-
resented a departure from the previously prevailing understanding of
§ 1981's reach, the Act's text does not support petitioners' argument that
§ 101 was intended to "restore" that prior understanding as to cases
arising before the Act's passage. In contrast to the 1990 civil rights
511us1$41Z 11-08-97 19:58:21 PAGES OPINPGT
Cite as: 511 U. S. 298 (1994) 299
Syllabus
bill that was vetoed by the President, the 1991 Act neither declares its
intent to "restor[e]" protections that were limited by Patterson and
other decisions nor provides that its § 1981 amendment applies to all
proceedings "pending on or commenced after" the date Patterson was
decided, but describes its function as "expanding" the scope of relevant
civil rights statutes in order to provide adequate protection to discrimi-
nation victims. Taken by itself, the fact that § 101 is framed as a gloss
on § 1981's original "make and enforce contracts" language does not
demonstrate an intent to apply the new definition to past acts. Alter-
ing statutory definitions, or adding new definitions of terms previously
undefined, is a common way of amending statutes, and simply does not
answer the retroactivity question. The 1991 Act's legislative history
does not bridge the textual gap, since the statements that most strongly
support retroactivity are found in the debates on the 1990 bill, and the
statements relating specifically to § 101 are conflicting and unreliable.
Pp. 304Â309.
(c) Contrary to petitioners' argument, this Court's decisions do not
espouse a "presumption" in favor of the retroactive application of restor-
ative statutes even in the absence of clear congressional intent. Fris-
bie v. Whitney, 9 Wall. 187, and Freeborn v. Smith, 2 Wall. 160, distin-
guished. A restorative purpose may be relevant to whether Congress
specifically intended a new statute to govern past conduct, but an intent
to act retroactively in such cases must be based on clear evidence and
may not be presumed. Since neither § 101 nor the statute of which it is
a part contains such evidence, and since the section creates substantive
liabilities that had no legal existence before the 1991 Act was passed,
§ 101 does not apply to preenactment conduct. Rather, Patterson
provides the authoritative interpretation of the phrase "make and en-
force contracts" in § 1981 before the 1991 amendment went into effect.
Pp. 309Â314.
973 F. 2d 490, affirmed and remanded.
Stevens, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed
an opinion concurring in the judgment, in which Kennedy and Thomas,
JJ., joined, ante, p. 286. Blackmun, J., filed a dissenting opinion, post,
p. 314.
Eric Schnapper argued the cause for petitioners. With
him on the briefs were Elaine R. Jones, Charles Stephen
Ralston, Cornelia T. L. Pillard, Kerry Scanlon, and Ellis
Boal.
511us1$41Z 11-08-97 19:58:21 PAGES OPINPGT
300 RIVERS v. ROADWAY EXPRESS, INC.
Opinion of the Court
Solicitor General Days argued the cause for the United
States et al. as amici curiae urging reversal. On the brief
were Acting Solicitor General Bryson, Acting Assistant
Attorney General Turner, Deputy Solicitor General Wal-
lace, Robert A. Long, Jr., David K. Flynn, Dennis J. Dim-
sey, Rebecca K. Troth, and Donald R. Livingston.
Glen D. Nager argued the cause for respondent. With
him on the brief were John T. Landwehr and Thomas J.
Gibney.*
Justice Stevens delivered the opinion of the Court.
Section 101 of the Civil Rights Act of 1991, Pub. L. 102Â
166, 105 Stat. 1071, defines the term "make and enforce con-
tracts" as used in § 1 of the Civil Rights Act of 1866, Rev.
Stat. § 1977, 42 U. S. C. § 1981, to include "the making, per-
formance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship." We granted certiorari to
decide whether § 101 applies to a case that arose before it
was enacted. We hold that it does not.
*Briefs of amici curiae urging reversal were filed for the Asian Ameri-
can Legal Defense and Education Fund et al. by Denny Chin, Doreena
Wong, and Angelo N. Ancheta; and for the National Women's Law Center
et al. by Judith E. Schaeffer and Ellen J. Vargyas.
Briefs of amici curiae urging affirmance were filed for the American
Trucking Associations et al. by James D. Holzhauer, Andrew L. Frey,
Kenneth S. Geller, Javier H. Rubinstein, Daniel R. Barney, and Kenneth
P. Kolson; and for Motor Express, Inc., by Alan J. Thiemann.
Briefs of amici curiae were filed for the Equal Employment Advisory
Council et al. by Robert E. Williams, Douglas S. McDowell, and Mona C.
Zeiberg; for the National Association for the Advancement of Colored Peo-
ple et al. by Marc L. Fleischaker, David L. Kelleher, Steven S. Zaleznick,
Cathy Ventrell-Monsees, Steven M. Freeman, Michael Lieberman, Dennis
Courtland Hayes, Willie Abrams, Samuel Rabinove, and Richard Foltin;
and for Wards Cove Packing Co. by Douglas M. Fryer, Douglas M. Dun-
can, and Richard L. Phillips.
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
Cite as: 511 U. S. 298 (1994) 301
Opinion of the Court
I
Petitioners Rivers and Davison were employed by re-
spondent Roadway Express, Inc., as garage mechanics. On
the morning of August 22, 1986, a supervisor directed them
to attend disciplinary hearings later that day. Because they
had not received the proper notice guaranteed by their
collective-bargaining agreement, petitioners refused to at-
tend. They were suspended for two days, but filed griev-
ances and were awarded two days' backpay. Respondent
then held another disciplinary hearing, which petitioners also
refused to attend, again on the ground that they had not
received proper notice. Respondent thereupon discharged
them.
On December 22, 1986, petitioners filed a complaint alleg-
ing that respondent had discharged them because of their
race in violation of 42 U. S. C. § 1981.1 They claimed, inter
alia, that they had been fired on baseless charges because of
their race and because they had insisted on the same proce-
dural protections afforded white employees.
On June 15, 1989, before the trial commenced, this Court
announced its decision in Patterson v. McLean Credit Union,
491 U. S. 164. Patterson held that § 1981 "does not apply to
conduct which occurs after the formation of a contract and
which does not interfere with the right to enforce estab-
lished contract obligations." Id., at 171. Relying on Pat-
terson, the District Court held that none of petitioners' dis-
criminatory discharge claims were covered by § 1981, and
dismissed their claims under that section. After a bench
trial on petitioners' Title VII claims, the District Court
found that petitioners had been discharged for reasons other
than their race, and entered judgment for respondent.
1 Petitioners' amended complaint also alleged claims against respondent
under the Labor Management Relations Act, 1947, 61 Stat. 157, as
amended, 29 U. S. C. § 185(a), and Title VII of the Civil Rights Act of 1964,
78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., as well as claims
against their union. Those claims are not before us.
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
302 RIVERS v. ROADWAY EXPRESS, INC.
Opinion of the Court
On appeal, petitioners contended that the District Court
had misconstrued their complaint: They had not merely
claimed discriminatory discharge, but more specifically had
alleged that respondent had retaliated against them, because
of their race, for attempting to enforce their procedural
rights under the collective-bargaining agreement. Because
that allegation related to "enforcement" of the labor contract,
petitioners maintained, it stated a § 1981 claim even under
Patterson's construction of the statute. While petitioners'
appeal was pending, the Civil Rights Act of 1991 (1991 Act
or Act) became law. Section 101 of that Act provides that
§ 1981's prohibition against racial discrimination in the mak-
ing and enforcement of contracts applies to all phases and
incidents of the contractual relationship, including discrimi-
natory contract terminations.2 Petitioners accordingly filed
2 The full text of § 101, which is entitled "Prohibition Against All Racial
Discrimination in the Making And Enforcement of Contracts," reads as
follows:
"Section 1977 of the Revised Statutes (42 U. S. C. 1981) is amended-
"(1) by inserting `(a)' before `All persons within'; and
"(2) by adding at the end the following new subsections:
"(b) For purposes of this section, the term `make and enforce contracts'
includes the making, performance, modification, and termination of con-
tracts, and the enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship.
"(c) The rights protected by this section are protected against impair-
ment by nongovernmental discrimination and impairment under color of
State law."
Prior to the 1991 amendment, § 1981 provided:
"All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other."
The history of § 1981, which is sometimes cited as § 1977 of the Revised
Statutes, is set forth in Runyon v. McCrary, 427 U. S. 160, 168Â170, and
n. 8 (1976).
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Cite as: 511 U. S. 298 (1994) 303
Opinion of the Court
a supplemental brief advancing the argument that the new
statute applied in their case. The Court of Appeals agreed
with petitioners' first contention but not the second. Ac-
cordingly, it ruled that § 1981 as interpreted in Patterson,
not as amended by § 101, governed the case and remanded
for a jury trial limited to petitioners' discrimination-in-
contract-enforcement claim. See Harvis v. Roadway Ex-
press, Inc., 973 F. 2d 490 (CA6 1992).
We granted certiorari, 507 U. S. 908 (1993), on the sole
question whether § 101 of the 1991 Act applies to cases pend-
ing when it was enacted and set the case for argument with
Landgraf v. USI Film Products, ante, p. 244.
II
In Landgraf, we concluded that § 102 of the 1991 Act does
not apply to cases that arose before its enactment. The rea-
sons supporting that conclusion also apply to § 101, and re-
quire rejection of two of petitioners' submissions in this case.
First, these petitioners, like the petitioner in Landgraf,
rely heavily on a negative implication argument based on
§§ 402(a), 109(c), and 402(b) of the Act. That argument, how-
ever, is no more persuasive as to the application of § 101 to
preenactment conduct than as to that of § 102. See ante,
at 257Â263.
Second, petitioners argue that the case is governed by
Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974),
rather than the presumption against statutory retroactivity.
We are persuaded, however, that the presumption is even
more clearly applicable to § 101 than to § 102. Section 102
altered the liabilities of employers under Title VII by sub-
jecting them to expanded monetary liability, but it did not
alter the normative scope of Title VII's prohibition on work-
place discrimination. In contrast, because § 101 amended
§ 1981 to embrace all aspects of the contractual relationship,
including contract terminations, it enlarged the category of
conduct that is subject to § 1981 liability.
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
304 RIVERS v. ROADWAY EXPRESS, INC.
Opinion of the Court
Moreover, § 1981 (and hence § 101) is not limited to employ-
ment; because it covers all contracts, see, e. g., Runyon v.
McCrary, 427 U. S. 160 (1976), Tillman v. Wheaton-Haven
Recreation Assn., Inc., 410 U. S. 431 (1973), a substantial
part of § 101's sweep does not overlap Title VII. In short,
§ 101 has the effect not only of increasing liability but also of
establishing a new standard of conduct.3 Accordingly, for
reasons we stated in Landgraf, the important new legal obli-
gations § 101 imposes bring it within the class of laws that
are presumptively prospective.
III
Petitioners rely heavily on an argument that was not ap-
plicable to § 102 of the 1991 Act, the section at issue in Land-
graf. They contend that § 101 should apply to their case be-
cause it was "restorative" of the understanding of § 1981 that
prevailed before our decision in Patterson. Petitioners ad-
vance two variations on this theme: Congress' evident pur-
pose to "restore" pre-Patterson law indicates that it affirm-
atively intended § 101 to apply to cases arising before its
enactment; 4 moreover, there is a "presumption in favor of
application of restorative statutes" to cases arising before
their enactment. Brief for Petitioners 37.
A
Congress' decision to alter the rule of law established in
one of our cases-as petitioners put it, to "legislatively over-
rul[e]," see id., at 38-does not, by itself, reveal whether
Congress intends the "overruling" statute to apply retroac-
3 Even in the employment context, § 1981's coverage is broader than
Title VII's, for Title VII applies only to employers with 15 or more em-
ployees, see 42 U. S. C. § 2000e(b), whereas § 1981 has no such limitation.
4 See Brief for Petitioners 35 ("Congress sought to restore what it and
virtually all the lower courts thought had been the reach of § 1981 prior
to Patterson").
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
Cite as: 511 U. S. 298 (1994) 305
Opinion of the Court
tively to events that would otherwise be governed by the
judicial decision.5 A legislative response does not necessar-
ily indicate that Congress viewed the judicial decision as
"wrongly decided" as an interpretive matter. Congress may
view the judicial decision as an entirely correct reading of
prior law-or it may be altogether indifferent to the deci-
sion's technical merits-but may nevertheless decide that
the old law should be amended, but only for the future.
Of course, Congress may also decide to announce a new
rule that operates retroactively to govern the rights of par-
ties whose rights would otherwise be subject to the rule
announced in the judicial decision. Because retroactivity
raises special policy concerns, the choice to enact a statute
that responds to a judicial decision is quite distinct from the
choice to make the responding statute retroactive.
Petitioners argue that the structure and legislative history
of § 101 indicate that Congress specifically intended to "re-
store" prior law even as to parties whose rights would other-
wise have been determined according to Patterson's inter-
pretation of § 1981. Thus, § 101 operates as a gloss on the
terms "make and enforce contracts," the original language
of the Civil Rights Act of 1866 that was before this Court in
Patterson. Petitioners also point to evidence in the 1991
Act's legislative history indicating legislators' distress with
Patterson's construction of § 1981 and their view that our
decision had narrowed a previously established understand-
5 Congress frequently "responds" to judicial decisions construing stat-
utes, and does so for a variety of reasons. According to one commentator,
between 1967 and 1990, the Legislature "overrode" our decisions at an
average of "ten per Congress." Eskridge, Overriding Supreme Court
Statutory Interpretation Decisions, 101 Yale L. J. 331, 338 (1991). Seldom
if ever has Congress responded to so many decisions in a single piece of
legislation as it did in the Civil Rights Act of 1991. See Landgraf v. USI
Film Products, ante, at 250Â251.
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
306 RIVERS v. ROADWAY EXPRESS, INC.
Opinion of the Court
ing of that provision.6 Taken together, petitioners argue,
this evidence shows that it was Congress' sense that Patter-
son had cut back the proper scope of § 1981, and that the new
legislation would restore its proper scope. Regardless of
whether that sense was right or wrong as a technical legal
matter, petitioners maintain, we should give it effect by
applying § 101's broader definition of what it means to "make
and enforce" a contract, rather than Patterson's congres-
sionally disapproved reading, to cases pending upon § 101's
enactment.
We may assume, as petitioners argue, that § 101 reflects
congressional disapproval of Patterson's interpretation of
6 Thus, for example, the Senate Report on the 1990 civil rights bill that
was passed by Congress but vetoed by the President stated:
"The Patterson decision sharply cut back on the scope and effectiveness
of section 1981, with profoundly negative consequences both in the em-
ployment context and elsewhere. As a result of the decision, the more
than 11 million employees in firms that are not covered by Title VII lack
any protection against racial harassment and other forms of race discrimi-
nation on the job.
. . . . .
"Since Patterson was announced, more than 200 claims of race discrimi-
nation have been dismissed by federal courts as a result of the decision.
Statement of Julius LeVonne Chambers, Director-Counsel, NAACP Legal
Defense and Educational Fund, Inc. (March 9, 1990). Many persons sub-
jected to blatant bigotry lack any means to obtain relief.
. . . . .
"The Committee finds that there is a compelling need for legislation to
overrule the Patterson decision and ensure that federal law prohibits all
race discrimination in contracts." S. Rep. No. 101Â315, pp. 12Â14 (1990).
Congress' concern with the effects of the Patterson decision in specific
cases, including cases in which plaintiffs had won judgments only to have
them reversed after Patterson came down, see S. Rep. No. 315, at 13Â14,
doubtless explains why the 1990 legislation contained a special provision
for the reopening of judgments. See Civil Rights Act of 1990, S. 2104,
101st Cong., 2d Sess., § 15(b)(3) (1990); see also Landgraf, ante, at 255Â256,
n. 8. Petitioners do not argue that the 1991 Act should be read to reach
cases finally decided.
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Cite as: 511 U. S. 298 (1994) 307
Opinion of the Court
§ 1981. We may even assume that many or even most legis-
lators believed that Patterson was not only incorrectly de-
cided but also represented a departure from the previously
prevailing understanding of the reach of § 1981. Those as-
sumptions would readily explain why Congress might have
wanted to legislate retroactively, thereby providing relief for
the persons it believed had been wrongfully denied a § 1981
remedy. Even on those assumptions, however, we cannot
find in the 1991 Act any clear expression of congressional
intent to reach cases that arose before its enactment.
The 1990 civil rights bill that was vetoed by the President
contained an amendment to § 1981, identical to § 101 of the
1991 Act, that assuredly would have applied to pending
cases. See Civil Rights Act of 1990, S. 2104, 101st Cong.,
2d Sess., § 12 (1990). See also Landgraf, ante, at 255Â256,
n. 8. In its statement of purposes, the bill unambiguously
declared that it was intended to "respond to the Supreme
Court's recent decisions by restoring the civil rights pro-
tections that were dramatically limited by those decisions,"
S. 2104, § 2(b)(1) (emphasis added), and the section respond-
ing to Patterson was entitled "Restoring Prohibition Against
All Racial Discrimination in the Making and Enforce-
ment of Contracts." Id., § 12 (emphasis added).7 More di-
rectly, § 15(a)(6) of the 1990 bill expressly provided that the
7 We do not suggest that Congress' use of the word "restore" necessarily
bespeaks an intent to restore retroactively. For example, Congress
might, in response to a judicial decision that construed a criminal statute
narrowly, amend the legislation to broaden its scope; the preamble or legis-
lative history of the amendment might state that it was intended to "re-
store" the statute to its originally intended scope. In such a situation,
there would be no need to read Congress' use of the word "restore" as an
attempt to circumvent the Ex Post Facto Clause. Instead, "to restore"
might sensibly be read as meaning "to correct, from now on." The 1990
bill did not suffer from such ambiguity, however, for it contained other
provisions that made pellucidly clear that Congress contemplated the
broader, retroactive kind of "restoration."
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
308 RIVERS v. ROADWAY EXPRESS, INC.
Opinion of the Court
amendment to § 1981 "shall apply to all proceedings pending
on or commenced after" the date of the Patterson decision.
The statute that was actually enacted in 1991 contains no
comparable language. Instead of a reference to "restoring"
pre-existing rights, its statement of purposes describes the
Act's function as "expanding the scope of relevant civil
rights statutes in order to provide adequate protection to
victims of discrimination." 1991 Act, § 3(4), 105 Stat. 1071
(emphasis added). Consistently with that revised statement
of purposes, the Act lacks any direct reference to cases aris-
ing before its enactment, or to the date of the Patterson deci-
sion. Taken by itself, the fact that § 101 is framed as a gloss
on § 1981's original "make and enforce contracts" does not
demonstrate an intent to apply the new definition to past
acts. Altering statutory definitions, or adding new defini-
tions of terms previously undefined, is a common way of
amending statutes, and simply does not answer the retroac-
tivity question. Thus, the text of the Act does not support
the argument that § 101 of the 1991 Act was intended to
"restore" prior understandings of § 1981 as to cases arising
before the 1991 Act's passage.
The legislative history of the 1991 Act does not bridge the
gap in the text. The statements that most strongly support
such coverage are found in the debates on the 1990 bill. See
n. 6, supra. Such statements are of questionable relevance
to the 1991 Act, however, because the 1990 provision con-
tained express retroactivity provisions that were omitted
from the 1991 legislation. The statements relating specifi-
cally to § 101 of the 1991 Act do not provide reliable evidence
on whether Congress intended to "restore" a broader mean-
ing of § 1981 with respect to pending cases otherwise gov-
erned by Patterson's construction of the scope of the phrase
"make and enforce contracts." 8 Thus, the fact that § 101
8 The legislative history of the 1991 Act reveals conflicting views about
whether § 101 would "restore" or instead "enlarge" the original scope
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Opinion of the Court
was enacted in response to Patterson does not supply suffi-
cient evidence of a clear congressional intent to overcome
the presumption against statutory retroactivity.
B
A lack of clear congressional intent would not be disposi-
tive if, as petitioners argue, § 101 is the kind of restorative
statute that should presumptively be applied to pending
cases. Petitioners maintain that restorative statutes do not
implicate fairness concerns relating to retroactivity at least
when, as is the case in this litigation, the new statute simply
enacts a rule that the parties believed to be the law when
they acted.9 Indeed, amici in support of petitioners con-
tend, fairness concerns positively favor application of § 101
to pending cases because the effect of the Patterson decision
of § 1981. Compare, e. g., 137 Cong. Rec. H9526 (Nov. 7, 1991) (remarks
of Rep. Edwards), with id., at H9543 (Nov. 7, 1991) (remarks of Rep.
Hyde). The history also includes some debate over the proper test for
courts to apply-specifically, the "Bradley" presumption or the "Bowen"
presumption, see Landgraf, ante, at 263Â265-to determine the applicabil-
ity of the various provisions of the Act to pending cases. Compare, e. g.,
137 Cong. Rec. 30340 (1991) (remarks of Sen. Kennedy) (citing Bradley
test), with id., at 29043Â29044 (remarks of Sen. Danforth) (favoring Bowen
test). As we noted in Landgraf, ante, at 262Â263, the legislative history
reveals that retroactivity was recognized as an important and controver-
sial issue, but that history falls far short of providing evidence of an agree-
ment among legislators on the subject.
9 They point out that respondent has no persuasive claim to unfair
surprise, because, at the time the allegedly discriminatory discharge oc-
curred, the Sixth Circuit precedent held that § 1981 could support a claim
for discriminatory contract termination. See, e. g., Cooper v. North Olm-
stead, 795 F. 2d 1265, 1270, n. 3 (1986); Leonard v. City of Frankfort Elec.
and Water Plant Bd., 752 F. 2d 189, 195 (1985). See also Mozee v. Ameri-
can Commercial Marine Service Co., 963 F. 2d 929, 941 (CA7 1992) (Cu-
dahy, J., dissenting); Gersman v. Group Health Assn., Inc., 975 F. 2d 886,
907Â908 (CADC 1992) (Wald, J., dissenting), cert. pending, No. 92Â1190.
We note, however, that this argument would not apply to any cases arising
after Patterson was decided but before the 1991 Act's enactment.
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310 RIVERS v. ROADWAY EXPRESS, INC.
Opinion of the Court
was to cut off, after the fact, rights of action under § 1981
that had been widely recognized in the lower courts, and
under which many victims of discrimination had won dam-
ages judgments prior to Patterson. See Brief for NAACP
et al. as Amici Curiae 7Â14.
Notwithstanding the equitable appeal of petitioners' argu-
ment, we are convinced that it cannot carry the day. Our
decisions simply do not support the proposition that we have
espoused a "presumption" in favor of retroactive application
of restorative statutes. Petitioners invoke Frisbie v. Whit-
ney, 9 Wall. 187 (1870), which involved a federal statute that
enabled Frisbie and others to acquire property they had oc-
cupied and thought they owned prior to 1862, when, in an-
other case, this Court held that the original grant of title by
the Mexican Government was void.10 The new law in effect
"restored" rights that Frisbie reasonably and in good faith
thought he possessed before the surprising announcement of
our decision. In the Frisbie case, however, the question
was whether Congress had the power to enact legislation
that had the practical effect of restoring the status quo
retroactively. As the following passage from Frisbie
demonstrates, there was no question about Congress' ac-
tual intent:
"We say the benefits it designed to confer, because we
entertain no doubt of the intention of Congress to se-
cure to persons situated as Frisbie was, the title to their
lands, on compliance with the terms of the act, and if
this has not been done it is solely because Congress
10 See United States v. Vallejo, 1 Black 541 (1862). In his dissent in that
case, Justice Grier stated that he could not "agree to confiscate the prop-
erty of some thousand of our fellow-citizens, who have purchased under
this title and made improvements to the value of many millions, on suspi-
cions first raised here as to the integrity of a grant universally acknowl-
edged to be genuine in the country where it originated." Id., at 555Â556
(emphasis in original).
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Opinion of the Court
had no power to enact the law in question." Id., at 192
(emphasis in original).
Petitioners also point to Freeborn v. Smith, 2 Wall. 160
(1865). There, a statute admitting Nevada to the Union had
failed to provide for jurisdiction over cases arising from Ne-
vada Territory that were pending before this Court when
Nevada achieved statehood. We upheld against constitu-
tional attack a subsequent statute explicitly curing the "acci-
dental impediment" to our jurisdiction over such cases. See
id., at 173Â175.
In the case before us today, however, we do not question
the power of Congress to apply its definition of the term
"make and enforce contracts" to cases arising before the 1991
Act became effective, or, indeed, to those that were pending
on June 15, 1989, when Patterson was decided. The ques-
tion is whether Congress has manifested such an intent.
Unlike the narrow error-correcting statutes at issue in Fris-
bie and Freeborn, § 101 is plainly not the sort of provision
that must be read to apply to pending cases "because a con-
trary reading would render it ineffective." Landgraf, ante,
at 286. Section 101 is readily comprehensible, and entirely
effective, even if it applies only to conduct occurring after
its effective date. A restorative purpose may be relevant to
whether Congress specifically intended a new statute to gov-
ern past conduct, but we do not "presume" an intent to act
retroactively in such cases.11 We still require clear evidence
of intent to impose the restorative statute "retroactively."
Section 101, and the statute of which it is a part, does not
contain such evidence.
"The principle that statutes operate only prospectively,
while judicial decisions operate retrospectively, is familiar to
11 See N. Singer, Sutherland on Statutory Construction § 27.04, p. 472
(5th ed. 1993) ("The usual purpose of a special interpretive statute is to
correct a judicial interpretation of a prior law which the legislature consid-
ers inaccurate. Where such statutes are given any effect, the effect is
prospective only").
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
312 RIVERS v. ROADWAY EXPRESS, INC.
Opinion of the Court
every law student," United States v. Security Industrial
Bank, 459 U. S. 70, 79 (1982), and this case illustrates the
second half of that principle as well as the first. Even
though applicable Sixth Circuit precedents were otherwise
when this dispute arose, the District Court properly applied
Patterson to this case. See Harper v. Virginia Dept. of
Taxation, 509 U. S. 86, 97 (1993) ("When this Court applies
a rule of federal law to the parties before it, that rule is the
controlling interpretation of federal law and must be given
full retroactive effect in all cases still open on direct review
and as to all events, regardless of whether such events pre-
date or postdate our announcement of the rule"). See also
Kuhn v. Fairmont Coal Co., 215 U. S. 349, 372 (1910) ("Judi-
cial decisions have had retrospective operation for near a
thousand years") (Holmes, J., dissenting). The essence of
judicial decisionmaking-applying general rules to particu-
lar situations-necessarily involves some peril to individual
expectations because it is often difficult to predict the pre-
cise application of a general rule until it has been distilled in
the crucible of litigation. See L. Fuller, Morality of Law
56 (1964) ("No system of law-whether it be judge-made or
legislatively enacted-can be so perfectly drafted as to leave
no room for dispute").
Patterson did not overrule any prior decision of this
Court; rather, it held and therefore established that the prior
decisions of the Courts of Appeals which read § 1981 to cover
discriminatory contract termination were incorrect. They
were not wrong according to some abstract standard of inter-
pretive validity, but by the rules that necessarily govern our
hierarchical federal court system. Cf. Brown v. Allen, 344
U. S. 443, 540 (1953) (Jackson, J., concurring in result). It is
this Court's responsibility to say what a statute means, and
once the Court has spoken, it is the duty of other courts to
respect that understanding of the governing rule of law. A
judicial construction of a statute is an authoritative state-
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Cite as: 511 U. S. 298 (1994) 313
Opinion of the Court
ment of what the statute meant before as well as after the
decision of the case giving rise to that construction.12 Thus,
Patterson provides the authoritative interpretation of the
phrase "make and enforce contracts" in the Civil Rights Act
of 1866 before the 1991 amendment went into effect on No-
vember 21, 1991. That interpretation provides the baseline
for our conclusion that the 1991 amendment would be "retro-
active" if applied to cases arising before that date.
Congress, of course, has the power to amend a statute that
it believes we have misconstrued. It may even, within
broad constitutional bounds, make such a change retroactive
and thereby undo what it perceives to be the undesirable
past consequences of a misinterpretation of its work product.
No such change, however, has the force of law unless it
is implemented through legislation. Even when Congress
intends to supersede a rule of law embodied in one of our
decisions with what it views as a better rule established in
earlier decisions, its intent to reach conduct preceding the
"corrective" amendment must clearly appear. We cannot
say that such an intent clearly appears with respect to § 101.
For this reason, and because it creates liabilities that had no
legal existence before the Act was passed, § 101 does not
apply to preenactment conduct.
12 When Congress enacts a new statute, it has the power to decide when
the statute will become effective. The new statute may govern from the
date of enactment, from a specified future date, or even from an expressly
announced earlier date. But when this Court construes a statute, it is
explaining its understanding of what the statute has meant continuously
since the date when it became law. In statutory cases the Court has no
authority to depart from the congressional command setting the effective
date of a law that it has enacted. Thus, it is not accurate to say that the
Court's decision in Patterson "changed" the law that previously prevailed
in the Sixth Circuit when this case was filed. Rather, given the structure
of our judicial system, the Patterson opinion finally decided what § 1981
had always meant and explained why the Courts of Appeals had misinter-
preted the will of the enacting Congress.
511us1$41I 11-08-97 19:58:21 PAGES OPINPGT
314 RIVERS v. ROADWAY EXPRESS, INC.
Blackmun, J., dissenting
Accordingly, the judgment of the Court of Appeals is af-
firmed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
[For opinion of Justice Scalia concurring in the judg-
ment, see ante, p. 286.]
Justice Blackmun, dissenting.
For the reasons stated in my dissent in Landgraf v. USI
Film Products, ante, p. 294, I also dissent in this case.
Here, just as in Landgraf, the most natural reading of the
Civil Rights Act of 1991, 105 Stat. 1071, and this Court's
precedents is that § 101 applies to cases pending on appeal
on the statute's enactment date, at least where application of
the new provision would not disturb the parties' vested
rights or settled expectations. This is such a case.
In 1986, when respondent Roadway Express, Inc., dis-
charged petitioners Maurice Rivers and Robert C. Davison
from their jobs as garage mechanics, 42 U. S. C. § 1981, which
gives all persons the same right to "make and enforce con-
tracts," 1 was widely understood to apply to the discrimina-
tory enforcement and termination of employment contracts.
See Johnson v. Railway Express Agency, Inc., 421 U. S. 454,
459Â460 (1975) ("Although this Court has not specifically so
held, it is well settled among the Federal Courts of Ap-
peals-and we now join them-that § 1981 affords a federal
remedy against discrimination in private employment on the
basis of race"). This understanding comports with § 101 of
the Civil Rights Act of 1991, 105 Stat. 1072, providing that
"the term `make and enforce contracts' includes the making,
performance, modification, and termination of contracts, and
1 Until the 1991 amendment, § 1981 stated: "All persons within the ju-
risdiction of the United States shall have the same right in every State
and Territory to make and enforce contracts . . . as is enjoyed by white
citizens . . . ."
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Cite as: 511 U. S. 298 (1994) 315
Blackmun, J., dissenting
the enjoyment of all benefits, privileges, terms, and condi-
tions of the contractual relationship." The majority seem-
ingly accepts petitioners' argument that if this Court were
to apply § 101 to their case, "respondent has no persuasive
claim to unfair surprise, because, at the time the allegedly
discriminatory discharge occurred, the Sixth Circuit prece-
dent held that § 1981 could support a claim for discriminatory
contract termination." Ante, at 309, n. 9.
Nonetheless, applying a new, supercharged version of our
traditional presumption against retroactive legislation, the
Court concludes that petitioners, whose claim was pending
when this Court announced Patterson v. McLean Credit
Union, 491 U. S. 164 (1989), are bound by that decision,
which limited § 1981 to contract formation. Patterson's
tenure was-or surely should have been-brief, as § 101 was
intended to overrule Patterson and to deny it further effect.
The Court's holding today, however, prolongs the life of that
congressionally repudiated decision. See Estate of Reyn-
olds v. Martin, 985 F. 2d 470, 475Â476 (CA9 1993) (denying
application of § 101 to cases pending at its enactment would
allow repudiated decisions, including Patterson, to "live on
in the federal courts for . . . years").
Although the Court's opinions in this case and in Landgraf
do bring needed clarity to our retroactivity jurisprudence,
they do so only at the expense of stalling the intended appli-
cation of remedial and restorative legislation. In its effort
to reconcile the "apparent tension," Kaiser Aluminum &
Chemical Corp. v. Bonjorno, 494 U. S. 827, 837 (1990), be-
tween Bradley v. School Bd. of Richmond, 416 U. S. 696
(1974), and Bowen v. Georgetown Univ. Hospital, 488 U. S.
204 (1988), the Court loses sight of the core purpose of its
retroactivity doctrine, namely, to respect and effectuate new
laws to the extent consistent with congressional intent and
with the vested rights and settled expectations of the par-
ties. In Bradley, a unanimous Court applied an interven-
ing statute allowing reasonable attorney's fees for school-
511us1$41F 11-08-97 19:58:21 PAGES OPINPGT
316 RIVERS v. ROADWAY EXPRESS, INC.
Blackmun, J., dissenting
desegregation plaintiffs to a case pending on appeal on the
statute's effective date. The Court observed that the stat-
ute merely created an "additional basis or source for the
Board's potential obligation to pay attorneys' fees." 416
U. S., at 721.2 Just as the school board in Bradley was on
notice that it could be liable for attorney's fees, the employer
in this case was on notice-from the prevailing interpreta-
tion of § 1981-that it could be liable for damages for a ra-
cially discriminatory contract termination. Indeed, in this
case, the employer's original liability stemmed from the very
provision that petitioners now seek to enforce.
In Bowen, by contrast, the Court unanimously interpreted
authorizing statutes not to permit the Secretary of Health
and Human Services retroactively to change the rules for
calculating hospitals' reimbursements for past services pro-
vided under Medicare. Although Bowen properly turned on
the textual analysis of the applicable statutes, neither citing
Bradley nor resorting to presumptions on retroactivity, its
broad dicta disfavored the retroactive application of congres-
sional enactments and administrative rules. See 488 U. S.,
at 208. Bowen is consistent, however, with the Court's anal-
ysis in Bennett v. New Jersey, 470 U. S. 632 (1985), appraising
the "[p]ractical considerations," id., at 640, that counsel
against retroactive changes in federal grant programs and
noting that such changes would deprive recipients of "fixed,
predictable standards." Ibid. Bowen also accords with
Bradley's concern for preventing the injustice that would re-
sult from the disturbance of the parties' reasonable reliance.
Thus, properly understood, Bradley establishes a presump-
2 Here, of course, § 101 creates a basis or source-in addition to Title
VII-for the prohibition on racial discrimination in the enforcement of
employment contracts. Title VII makes it illegal for an employer "to fail
or refuse to hire or to discharge any individual, or otherwise to discrimi-
nate against any individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin." 42 U. S. C. § 2000eÂ2(a)(1).
511us1$41F 11-08-97 19:58:21 PAGES OPINPGT
Cite as: 511 U. S. 298 (1994) 317
Blackmun, J., dissenting
tion that new laws apply to pending cases in the absence
of manifest injustice, and Bowen and Bennett stand for the
corresponding presumption against applying new laws when
doing so would cause the very injustice Bradley is designed
to avoid.3
Applying these principles here, "[w]hen a law purports to
restore the status quo in existence prior to an intervening
Supreme Court decision, the application of that law to con-
duct occurring prior to the decision would obviously not frus-
trate the expectations of the parties concerning the legal
consequences of their actions at that time." Gersman v.
Group Health Assn., Inc., 975 F. 2d 886, 907 (CADC 1992)
(dissenting opinion). While § 101 undoubtedly expands the
scope of § 1981 to prohibit conduct that was not illegal under
Patterson,4 in the present context § 101 provides a remedy
for conduct that was recognized as illegal when it occurred,
both under § 1981 and under Title VII. Thus, as far as re-
spondent is concerned, the law in effect when it dismissed
petitioners' claim differs little from the law as amended by
the Civil Rights Act of 1991, and application of § 101 in this
case would neither alter the expectations of the parties nor
disturb previously vested rights. Because I believe that the
most faithful reading of our precedents makes this the appro-
priate inquiry, I would reverse the judgment of the Court of
Appeals and remand the case for further proceedings.
3 An inquiry into the vested rights and settled expectations of the par-
ties is fairer and more sensitive than a mechanical reliance on a substance/
procedure dichotomy. See Gersman v. Group Health Assn., Inc., 975
F. 2d 886, 906 (CADC 1992) (Wald, J., dissenting); Mozee v. American
Commercial Marine Service Co., 963 F. 2d 929, 940Â941 (CA7 1992) (Cu-
dahy, J., dissenting from denial of rehearing).
4 Not all conduct proscribed by § 101 was also unlawful under Title VII
or other civil rights laws. For example, § 101, unlike Title VII, see 42
U. S. C. § 2000e(b), applies to small employers, and even outside the em-
ployment context, see, e. g., Runyon v. McCrary, 427 U. S. 160 (1976).
511us1$42Z 06-11-96 22:57:01 PAGES OPINPGT
318 OCTOBER TERM, 1993
Syllabus
STANSBURY v. CALIFORNIA
certiorari to the supreme court of california
No. 93Â5770. Argued March 30, 1994-Decided April 26, 1994
When California police first questioned petitioner Stansbury as a possible
witness to the rape and murder of a 10-year-old girl, they had another
suspect. However, Stansbury became a suspect during the interview,
when he told police that, on the night of the murder, he drove a car
matching the one seen where the girl's body was found. After he also
admitted to prior convictions for rape, kidnaping, and child molestation,
officers stopped the interview, advised him of his rights under Miranda
v. Arizona, 384 U. S. 436, and arrested him. The trial court denied his
pretrial motion to suppress his statements to the police, reasoning that
he was not "in custody" for purposes of Miranda until the officers began
to suspect him. He was convicted of, inter alia, first-degree murder
and sentenced to death. In affirming, the State Supreme Court con-
cluded that one of the relevant factors in determining whether Stans-
bury was in custody was whether the investigation was focused on him.
Agreeing that suspicion focused on him only when he mentioned the car,
the court found that Miranda did not bar the admission of statements
made before that point.
Held: Because the initial determination of custody depends on the objec-
tive circumstances of the interrogation, an officer's subjective and undis-
closed view concerning whether the interrogee is a suspect is irrelevant
to the assessment whether that person is in custody. See, e. g., Beck-
with v. United States, 425 U. S. 341. Numerous statements in the State
Supreme Court's opinion are open to the interpretation that the court
regarded the officers' subjective beliefs regarding Stansbury's status as
a suspect as significant in and of themselves, rather than as relevant
only to the extent they influenced the objective conditions surrounding
his interrogation. The State Supreme Court should consider in the first
instance whether objective circumstances show that Stansbury was in
custody during the entire interrogation.
4 Cal. 4th 1017, 846 P. 2d 756, reversed and remanded.
Robert M. Westberg, by appointment of the Court, 510
U. S. 1009, argued the cause for petitioner. With him on the
briefs were David S. Winton and Joseph A. Hearst.
511us1$42Z 06-11-96 22:57:01 PAGES OPINPGT
Cite as: 511 U. S. 318 (1994) 319
Per Curiam
Aileen Bunney, Deputy Attorney General of California,
argued the cause for respondent. With her on the brief
were Daniel E. Lungren, Attorney General, George Wil-
liamson, Chief Assistant Attorney General, Ronald A. Bass,
Senior Assistant Attorney General, and Ronald E. Niver,
Deputy Attorney General.*
Per Curiam.
This case concerns the rules for determining whether a
person being questioned by law enforcement officers is held
in custody, and thus entitled to the warnings required by
Miranda v. Arizona, 384 U. S. 436 (1966). We hold, not for
the first time, that an officer's subjective and undisclosed
view concerning whether the person being interrogated is a
suspect is irrelevant to the assessment whether the person
is in custody.
I
Ten-year-old Robyn Jackson disappeared from a play-
ground in Baldwin Park, California, at around 6:30 p.m. on
September 28, 1982. Early the next morning, about 10
miles away in Pasadena, Andrew Zimmerman observed a
large man emerge from a turquoise American sedan and
throw something into a nearby flood control channel. Zim-
merman called the police, who arrived at the scene and dis-
covered the girl's body in the channel. There was evidence
that she had been raped, and the cause of death was deter-
mined to be asphyxia complicated by blunt force trauma to
the head.
Lieutenant Thomas Johnston, a detective with the Los
Angeles County Sheriff's Department, investigated the hom-
*Briefs of amici curiae urging affirmance were filed for the Orange
County District Attorney, State of California, by Michael R. Capizzi and
Devallis Rutledge; for Americans for Effective Law Enforcement, Inc.,
by Bernard J. Farber, Fred E. Inbau, Wayne W. Schmidt, and James
P. Manak; and for the Criminal Justice Legal Foundation by Kent
S. Scheidegger.
511us1$42Z 06-11-96 22:57:01 PAGES OPINPGT
320 STANSBURY v. CALIFORNIA
Per Curiam
icide. From witnesses interviewed on the day the body was
discovered, he learned that Robyn had talked to two ice
cream truck drivers, one being petitioner Robert Edward
Stansbury, in the hours before her disappearance. Given
these contacts, Johnston thought Stansbury and the other
driver might have some connection with the homicide or
knowledge thereof, but for reasons unimportant here John-
ston considered only the other driver to be a leading suspect.
After the suspect driver was brought in for interrogation,
Johnston asked Officer Lee of the Baldwin Park Police De-
partment to contact Stansbury to see if he would come in for
questioning as a potential witness.
Lee and three other plainclothes officers arrived at Stans-
bury's trailer home at about 11:00 that evening. The officers
surrounded the door and Lee knocked. When Stansbury an-
swered, Lee told him the officers were investigating a homi-
cide to which Stansbury was a possible witness and asked if
he would accompany them to the police station to answer
some questions. Stansbury agreed to the interview and ac-
cepted a ride to the station in the front seat of Lee's police
car.At the station, Lieutenant Johnston, in the presence of
another officer, questioned Stansbury about his whereabouts
and activities during the afternoon and evening of Septem-
ber 28. Neither Johnston nor the other officer issued Mi-
randa warnings. Stansbury told the officers (among other
things) that on the evening of the 28th he spoke with the
victim at about 6:00, returned to his trailer home after work
at 9:00, and left the trailer at about midnight in his house-
mate's turquoise, American-made car. This last detail
aroused Johnston's suspicions, as the turquoise car matched
the description of the one Andrew Zimmerman had observed
in Pasadena. When Stansbury, in response to a further
question, admitted to prior convictions for rape, kidnaping,
and child molestation, Johnston terminated the interview
and another officer advised Stansbury of his Miranda rights.
511us1$42Z 06-11-96 22:57:01 PAGES OPINPGT
Cite as: 511 U. S. 318 (1994) 321
Per Curiam
Stansbury declined to make further statements, requested
an attorney, and was arrested. Respondent State of Califor-
nia charged Stansbury with first-degree murder and other
crimes.
Stansbury filed a pretrial motion to suppress all state-
ments made at the station, and the evidence discovered as a
result of those statements. The trial court denied the mo-
tion in relevant part, ruling that Stansbury was not "in cus-
tody"-and thus not entitled to Miranda warnings-until he
mentioned that he had taken his housemate's turquoise car
for a midnight drive. Before that stage of the interview,
the trial court reasoned, "the focus in [Lieutenant Johnston's]
mind certainly was on the other ice cream [truck] driver,"
Tr. 2368; only "after Mr. Stansbury made the comment . . .
describing the . . . turquoise-colored automobile" did John-
ston's suspicions "shif[t] to Mr. Stansbury," ibid. Based
upon its conclusion that Stansbury was not in custody until
Johnston's suspicions had focused on him, the trial court
permitted the prosecution to introduce in its case in chief
the statements Stansbury made before that time. At trial,
the jury convicted Stansbury of first-degree murder, rape,
kidnaping, and lewd act on a child under the age of 14, and
fixed the penalty for the first-degree murder at death.
The California Supreme Court affirmed. Before deter-
mining whether Stansbury was in custody during the inter-
view at the station, the court set out what it viewed as the
applicable legal standard:
"In deciding the custody issue, the totality of the circum-
stances is relevant, and no one factor is dispositive. How-
ever, the most important considerations include (1) the
site of the interrogation, (2) whether the investigation
has focused on the subject, (3) whether the objective in-
dicia of arrest are present, and (4) the length and form
of questioning." 4 Cal. 4th 1017, 1050, 846 P. 2d 756,
775 (1993) (internal quotation marks omitted).
511us1$42Z 06-11-96 22:57:01 PAGES OPINPGT
322 STANSBURY v. CALIFORNIA
Per Curiam
The court proceeded to analyze the second factor in detail,
in the end accepting the trial court's factual determination
"that suspicion focused on [Stansbury] only when he men-
tioned that he had driven a turquoise car on the night of the
crime." Id., at 1052, 846 P. 2d, at 776. The court "con-
clude[d] that [Stansbury] was not subject to custodial inter-
rogation before he mentioned the turquoise car," and thus
approved the trial court's ruling that Miranda v. Arizona
did not bar the admission of statements Stansbury made be-
fore that point. 4 Cal. 4th, at 1054, 846 P. 2d, at 777Â778.
We granted certiorari. 510 U. S. 943 (1993).
II
We held in Miranda that a person questioned by law en-
forcement officers after being "taken into custody or other-
wise deprived of his freedom of action in any significant way"
must first "be warned that he has a right to remain silent,
that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an
attorney, either retained or appointed." 384 U. S., at 444.
Statements elicited in noncompliance with this rule may not
be admitted for certain purposes in a criminal trial. Com-
pare id., at 492, 494, with Harris v. New York, 401 U. S. 222
(1971). An officer's obligation to administer Miranda warn-
ings attaches, however, "only where there has been such
a restriction on a person's freedom as to render him `in
custody.' " Oregon v. Mathiason, 429 U. S. 492, 495 (1977)
(per curiam); see also Illinois v. Perkins, 496 U. S. 292,
296 (1990). In determining whether an individual was in
custody, a court must examine all of the circumstances
surrounding the interrogation, but "the ultimate inquiry is
simply whether there [was] a `formal arrest or restraint on
freedom of movement' of the degree associated with a formal
arrest." California v. Beheler, 463 U. S. 1121, 1125 (1983)
(per curiam) (quoting Mathiason, supra, at 495).
511us1$42Z 06-11-96 22:57:02 PAGES OPINPGT
Cite as: 511 U. S. 318 (1994) 323
Per Curiam
Our decisions make clear that the initial determination of
custody depends on the objective circumstances of the inter-
rogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned. In
Beckwith v. United States, 425 U. S. 341 (1976), for example,
the defendant, without being advised of his Miranda rights,
made incriminating statements to Government agents dur-
ing an interview in a private home. He later asked that
Miranda "be extended to cover interrogation in non-
custodial circumstances after a police investigation has fo-
cused on the suspect." 425 U. S., at 345 (internal quotation
marks omitted). We found his argument unpersuasive, ex-
plaining that it "was the compulsive aspect of custodial inter-
rogation, and not the strength or content of the government's
suspicions at the time the questioning was conducted, which
led the Court to impose the Miranda requirements with
regard to custodial questioning." Id., at 346Â347 (internal
quotation marks omitted). As a result, we concluded that
the defendant was not entitled to Miranda warnings: "Al-
though the `focus' of an investigation may indeed have been
on Beckwith at the time of the interview . . . , he hardly
found himself in the custodial situation described by the Mi-
randa Court as the basis for its holding." 425 U. S., at 347.
Berkemer v. McCarty, 468 U. S. 420 (1984), reaffirmed the
conclusions reached in Beckwith. Berkemer concerned the
roadside questioning of a motorist detained in a traffic stop.
We decided that the motorist was not in custody for purposes
of Miranda even though the traffic officer "apparently de-
cided as soon as [the motorist] stepped out of his car that
[the motorist] would be taken into custody and charged with
a traffic offense." 468 U. S., at 442. The reason, we ex-
plained, was that the officer "never communicated his inten-
tion to" the motorist during the relevant questioning. Ibid.
The lack of communication was crucial, for under Miranda
"[a] policeman's unarticulated plan has no bearing on the
question whether a suspect was `in custody' at a particular
511us1$42Z 06-11-96 22:57:02 PAGES OPINPGT
324 STANSBURY v. CALIFORNIA
Per Curiam
time"; rather, "the only relevant inquiry is how a reasonable
man in the suspect's position would have understood his situ-
ation." 468 U. S., at 442. Other cases of ours have been
consistent in adhering to this understanding of the custody
element of Miranda. See, e. g., Mathiason, supra, at 495
("Nor is the requirement of warnings to be imposed simply
because . . . the questioned person is one whom the police
suspect. Miranda warnings are required only where there
has been such a restriction on a person's freedom as to ren-
der him `in custody' "); Beheler, supra, at 1124, n. 2 ("Our
holding in Mathiason reflected our earlier decision in [Beck-
with], in which we rejected the notion that the `in custody'
requirement was satisfied merely because the police inter-
viewed a person who was the `focus' of a criminal investiga-
tion"); Minnesota v. Murphy, 465 U. S. 420, 431 (1984) ("The
mere fact that an investigation has focused on a suspect does
not trigger the need for Miranda warnings in noncustodial
settings, and the probation officer's knowledge and intent
have no bearing on the outcome of this case") (citation omit-
ted); cf. Pennsylvania v. Bruder, 488 U. S. 9, 11, n. 2 (1988).
It is well settled, then, that a police officer's subjective
view that the individual under questioning is a suspect, if
undisclosed, does not bear upon the question whether the
individual is in custody for purposes of Miranda. See F.
Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Con-
fessions 232, 236, 297Â298 (3d ed. 1986). The same principle
obtains if an officer's undisclosed assessment is that the per-
son being questioned is not a suspect. In either instance,
one cannot expect the person under interrogation to probe
the officer's innermost thoughts. Save as they are commu-
nicated or otherwise manifested to the person being ques-
tioned, an officer's evolving but unarticulated suspicions do
not affect the objective circumstances of an interrogation or
interview, and thus cannot affect the Miranda custody in-
quiry. "The threat to a citizen's Fifth Amendment rights
511us1$42Z 06-11-96 22:57:02 PAGES OPINPGT
Cite as: 511 U. S. 318 (1994) 325
Per Curiam
that Miranda was designed to neutralize has little to do with
the strength of an interrogating officer's suspicions." Berk-
emer, supra, at 435, n. 22.
An officer's knowledge or beliefs may bear upon the cus-
tody issue if they are conveyed, by word or deed, to the indi-
vidual being questioned. Cf. Michigan v. Chesternut, 486
U. S. 567, 575, n. 7 (1988) (citing United States v. Mendenhall,
446 U. S. 544, 554, n. 6 (1980) (opinion of Stewart, J.)). Those
beliefs are relevant only to the extent they would affect how
a reasonable person in the position of the individual being
questioned would gauge the breadth of his or her " `freedom
of action.' " Berkemer, supra, at 440. Even a clear state-
ment from an officer that the person under interrogation is
a prime suspect is not, in itself, dispositive of the custody
issue, for some suspects are free to come and go until the
police decide to make an arrest. The weight and pertinence
of any communications regarding the officer's degree of sus-
picion will depend upon the facts and circumstances of the
particular case. In sum, an officer's views concerning the
nature of an interrogation, or beliefs concerning the potential
culpability of the individual being questioned, may be one
among many factors that bear upon the assessment whether
that individual was in custody, but only if the officer's views
or beliefs were somehow manifested to the individual under
interrogation and would have affected how a reasonable per-
son in that position would perceive his or her freedom to
leave. (Of course, instances may arise in which the officer's
undisclosed views are relevant in testing the credibility of
his or her account of what happened during an interrogation;
but it is the objective surroundings, and not any undisclosed
views, that control the Miranda custody inquiry.)
We decide on this state of the record that the California
Supreme Court's analysis of whether Stansbury was in cus-
tody is not consistent in all respects with the foregoing prin-
ciples. Numerous statements in the court's opinion are open
511us1$42Z 06-11-96 22:57:02 PAGES OPINPGT
326 STANSBURY v. CALIFORNIA
Per Curiam
to the interpretation that the court regarded the officers'
subjective beliefs regarding Stansbury's status as a suspect
(or nonsuspect) as significant in and of themselves, rather
than as relevant only to the extent they influenced the objec-
tive conditions surrounding his interrogation. See 4 Cal.
4th, at 1050, 846 P. 2d, at 775 ("whether the investigation
ha[d] focused on the" person being questioned is among the
"most important considerations" in assessing whether the
person was in custody). So understood, the court's analysis
conflicts with our precedents. The court's apparent conclu-
sion that Stansbury's Miranda rights were triggered by vir-
tue of the fact that he had become the focus of the officers'
suspicions, see 4 Cal. 4th, at 1052, 1054, 846 P. 2d, at 776,
777Â778; cf., e. g., State v. Blanding, 69 Haw. 583, 586Â587,
752 P. 2d 99, 101 (1988); State v. Hartman, 703 S. W. 2d 106,
120 (Tenn. 1985), cert. denied, 478 U. S. 1010 (1986); People
v. Herdon, 42 Cal. App. 3d 300, 307, n. 10, 116 Cal. Rptr. 641,
645, n. 10 (1974), is incorrect as well. Our cases make clear,
in no uncertain terms, that any inquiry into whether the in-
terrogating officers have focused their suspicions upon the
individual being questioned (assuming those suspicions re-
main undisclosed) is not relevant for purposes of Miranda.
See generally 1 W. LaFave & J. Israel, Criminal Procedure
§6.6(a), pp. 489Â490 (1984).
The State acknowledges that Lieutenant Johnston's and
the other officers' subjective and undisclosed suspicions (or
lack thereof) do not bear upon the question whether Stans-
bury was in custody, for purposes of Miranda, during the
station house interview. It main tains, however, that the ob-
jective facts in the record support a finding that Stansbury
was not in custody until his arrest. Stansbury, by contrast,
asserts that the objective circumstances show that he was in
custody during the entire interrogation. We think it appro-
priate for the California Supreme Court to consider this
question in the first instance. We therefore reverse its
511us1$42Z 06-11-96 22:57:02 PAGES OPINPGT
Cite as: 511 U. S. 318 (1994) 327
Blackmun, J., concurring
judgment and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered.
Justice Blackmun, concurring.
I join the Court's per curiam opinion and merely add that,
even if I were not persuaded that the judgment must be
reversed for the reasons stated in that opinion, I would ad-
here to my view that the death penalty cannot be imposed
fairly within the constraints of our Constitution. See my
dissent in Callins v. Collins, 510 U. S. 1141, 1143 (1994). I
therefore would vacate the death sentence on that ground,
too.
511us2$43Z 11-03-97 18:42:24 PAGES OPINPGT
328 OCTOBER TERM, 1993
Syllabus
CITY OF CHICAGO et al. v. ENVIRONMENTAL
DEFENSE FUND et al.
certiorari to the united states court of appeals for
the seventh circuit
No. 92Â1639. Argued January 19, 1994-Decided May 2, 1994
Respondent Environmental Defense Fund (EDF) sued petitioners, the
city of Chicago and its mayor, alleging that they were violating the
Resource Conservation and Recovery Act of 1976 (RCRA) and imple-
menting regulations of the Environmental Protection Agency (EPA) by
using landfills not licensed to accept hazardous wastes as disposal sites
for the toxic municipal waste combustion (MWC) ash that is left as a
residue when the city's resource recovery incinerator burns household
waste and nonhazardous industrial waste to produce energy. Although
it was uncontested that, with respect to the ash, petitioners had not
adhered to any of the RCRA Subtitle C requirements addressing haz-
ardous wastes, the District Court granted them summary judgment on
the ground that § 3001(i) of the Solid Waste Disposal Act, a provision
within RCRA, excluded the ash from those requirements. The Court
of Appeals disagreed and reversed, but, while certiorari was pending
in this Court, the EPA issued a memorandum directing its personnel,
in accordance with the agency's view of § 3001(i), to treat MWC ash as
exempt from Subtitle C regulation. On remand following this Court's
vacation of the judgment, the Court of Appeals reinstated its previous
opinion, holding that, because the statute's plain language is dispositive,
the EPA memorandum did not affect its analysis.
Held: Section 3001(i) does not exempt the MWC ash generated by peti-
tioners' facility from Subtitle C regulation as hazardous waste. Al-
though a pre-§ 3001(i) EPA regulation provided a "waste stream" ex-
emption covering household waste from generation through treatment
to final disposal of residues, petitioners' facility would not have come
within that exemption because it burned something in addition to house-
hold waste; the facility would have been considered a Subtitle C haz-
ardous waste generator, but not a (more stringently regulated) Sub-
title C hazardous waste treatment, storage, and disposal facility, since
all the waste it took in was nonhazardous. Section 3001(i) cannot be
interpreted as extending the pre-existing waste-stream exemption to
the product of a combined household/nonhazardous-industrial treatment
facility such as petitioners'. Although the section is entitled "Clarifi-
cation of household waste exclusion," its plain language-"A resource
511us2$43Z 11-03-97 18:42:24 PAGES OPINPGT
Cite as: 511 U. S. 328 (1994) 329
Syllabus
recovery facility . . . shall not be deemed to be treating, storing, dis-
posing of, or otherwise managing hazardous wastes for the purposes
of [Subtitle C] regulation . . . if . . . such facility . . . receives and burns
only . . . household waste . . . and [nonhazardous industrial] waste . . ."-
establishes that its exemption is limited to the facility itself, not the ash
that the facility generates. The statutory text's prominent omission
of any reference to generation, not the single reference thereto in the
legislative history, is the authoritative expression of the law. The en-
acted text requires rejection of the Government's plea for deference
to the EPA's interpretation, which goes beyond the scope of whatever
ambiguity § 3001(i) contains. Pp. 331Â339.
985 F. 2d 303, affirmed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Blackmun, Kennedy, Souter, Thomas, and Ginsburg, JJ.,
joined. Stevens, J., filed a dissenting opinion, in which O'Connor, J.,
joined, post, p. 340.
Lawrence Rosenthal argued the cause for petitioners.
With him on the briefs were Susan S. Sher, Benna Ruth
Solomon, and Mardell Nereim.
Jeffrey P. Minear argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Days, Acting Assistant Attorney
General Flint, Deputy Solicitor General Wallace, David
C. Shilton, M. Alice Thurston, Gerald H. Yamada, and
Lisa K. Friedman.
Richard J. Lazarus argued the cause and filed a brief for
respondents.*
*Briefs of amici curiae urging reversal were filed for the State of New
York by Robert Abrams, Attorney General, Jerry Boone, Solicitor Gen-
eral, Peter H. Schiff, Deputy Solicitor General, and James A. Sevinsky
and Kathleen Liston Morrison, Assistant Attorneys General; for Barron
County, Wisconsin, et al. by Philip G. Sunderland, Max Rothal, Pamela
K. Akin, Stephen O. Nunn, Cynthea L. Perry, Howard J. Wein, Charles
H. Younger, John D. Pirich, David P. Bobzien, Felshaw King, Mary Anne
Wood, Michael F. X. Gillin, Ruth C. Balkin, Patrick T. Boulden, and
Barry S. Shanoff; for the City of Spokane, Washington, et al. by Craig S.
Trueblood; for the County of Westchester, New York, by Carol L. Van
Scoyoc; for the National League of Cities et al. by Richard Ruda, David
R. Berz, and David B. Hird; for the Washington Legal Foundation et
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330 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
We are called upon to decide whether, pursuant to § 3001(i)
of the Solid Waste Disposal Act (Resource Conservation and
Recovery Act of 1976 (RCRA)), as added, 98 Stat. 3252,
42 U. S. C. § 6921(i), the ash generated by a resource recov-
ery facility's incineration of municipal solid waste is exempt
from regulation as a hazardous waste under Subtitle C of
RCRA.
I
Since 1971, petitioner city of Chicago has owned and op-
erated a municipal incinerator, the Northwest Waste-to-
Energy Facility, that burns solid waste and recovers energy,
leaving a residue of municipal waste combustion (MWC) ash.
The facility burns approximately 350,000 tons of solid waste
each year and produces energy that is both used within the
facility and sold to other entities. The city has disposed of
the combustion residue-110,000 to 140,000 tons of MWC ash
per year-at landfills that are not licensed to accept hazard-
ous wastes.
In 1988, respondent Environmental Defense Fund (EDF)
filed a complaint against petitioners, the city of Chicago and
its mayor, under the citizen suit provisions of RCRA, 42
U. S. C. § 6972, alleging that they were violating provisions
of RCRA and of implementing regulations issued by the
Environmental Protection Agency (EPA). Respondent al-
leged that the MWC ash generated by the facility was toxic
enough to qualify as a "hazardous waste" under EPA's regu-
lations, 40 CFR pt. 261 (1993). It was uncontested that,
with respect to the ash, petitioners had not adhered to any
of the requirements of Subtitle C, the portion of RCRA
addressing hazardous wastes. Petitioners contended that
al. by Daniel J. Popeo, Paul D. Kamenar, and Kurt J. Olson; and for
Wheelabrator Technologies Inc., et al. by Harold Himmelman, David M.
Friedland, and Mark P. Paul.
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Opinion of the Court
RCRA § 3001(i), 42 U. S. C. § 6921(i), excluded the MWC ash
from those requirements. The District Court agreed with
that contention, see Environmental Defense Fund, Inc. v.
Chicago, 727 F. Supp. 419, 424 (1989), and subsequently
granted petitioners' motion for summary judgment.
The Court of Appeals reversed, concluding that the "ash
generated from the incinerators of municipal resource re-
covery facilities is subject to regulation as a hazardous waste
under Subtitle C of RCRA." Environmental Defense
Fund, Inc. v. Chicago, 948 F. 2d 345, 352 (CA7 1991). The
city petitioned for a writ of certiorari, and we invited the
Solicitor General to present the views of the United States.
Chicago v. Environmental Defense Fund, Inc., 504 U. S. 906
(1992). On September 18, 1992, while that invitation was
outstanding, the Administrator of EPA issued a memoran-
dum to EPA Regional Administrators, directing them, in ac-
cordance with the agency's view of § 3001(i), to treat MWC
ash as exempt from hazardous waste regulation under Sub-
title C of RCRA. Thereafter, we granted the city's petition,
vacated the decision, and remanded the case to the Court of
Appeals for the Seventh Circuit for further consideration
in light of the memorandum. Chicago v. Environmental
Defense Fund, 506 U. S. 982 (1992).
On remand, the Court of Appeals reinstated its previous
opinion, holding that, because the statute's plain language
is dispositive, the EPA memorandum did not affect its anal-
ysis. 985 F. 2d 303, 304 (CA7 1993). Petitioners filed a
petition for writ of certiorari, which we granted. 509 U. S.
903 (1993).
II
RCRA is a comprehensive environmental statute that em-
powers EPA to regulate hazardous wastes from cradle to
grave, in accordance with the rigorous safeguards and waste
management procedures of Subtitle C, 42 U. S. C. §§ 6921Â
6934. (Nonhazardous wastes are regulated much more
loosely under Subtitle D, 42 U. S. C. §§ 6941Â6949.) Under
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332 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Opinion of the Court
the relevant provisions of Subtitle C, EPA has promulgated
standards governing hazardous waste generators and trans-
porters, see 42 U. S. C. §§ 6922 and 6923, and owners and op-
erators of hazardous waste treatment, storage, and disposal
facilities (TSDF's), see § 6924. Pursuant to § 6922, EPA has
directed hazardous waste generators to comply with han-
dling, recordkeeping, storage, and monitoring requirements,
see 40 CFR pt. 262 (1993). TSDF's, however, are subject to
much more stringent regulation than either generators or
transporters, including a 4- to 5-year permitting process, see
42 U. S. C. § 6925; 40 CFR pt. 270 (1993); U. S. Environmental
Protection Agency Office of Solid Waste and Emergency Re-
sponse, The Nation's Hazardous Waste Management Pro-
gram at a Crossroads, The RCRA Implementation Study
49Â50 (July 1990), burdensome financial assurance require-
ments, stringent design and location standards, and, perhaps
most onerous of all, responsibility to take corrective action
for releases of hazardous substances and to ensure safe clo-
sure of each facility, see 42 U. S. C. § 6924; 40 CFR pt. 264
(1993). "[The] corrective action requirement is one of the
major reasons that generators and transporters work dili-
gently to manage their wastes so as to avoid the need to
obtain interim status or a TSD permit." 3 Environmental
Law Practice Guide § 29.06[3][d] (M. Gerrard ed. 1993) (here-
inafter Practice Guide).
RCRA does not identify which wastes are hazardous and
therefore subject to Subtitle C regulation; it leaves that
designation to EPA. 42 U. S. C. § 6921(a). When EPA's
hazardous waste designations for solid wastes appeared in
1980, see 45 Fed. Reg. 33084, they contained certain ex-
ceptions from normal coverage, including an exclusion for
"household waste," defined as "any waste material . . . de-
rived from households (including single and multiple resi-
dences, hotels and motels)," id., at 33120, codified as amended
at 40 CFR § 261.4(b)(1) (1993). Although most household
waste is harmless, a small portion-such as cleaning fluids
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Opinion of the Court
and batteries-would have qualified as hazardous waste.
The regulation declared, however, that "[h]ousehold waste,
including household waste that has been collected, trans-
ported, stored, treated, disposed, recovered (e. g., refuse-
derived fuel) or reused" is not hazardous waste. Ibid.
Moreover, the preamble to the 1980 regulations stated that
"residues remaining after treatment (e. g. incineration, ther-
mal treatment) [of household waste] are not subject to regu-
lation as a hazardous waste." 45 Fed. Reg. 33099. By rea-
son of these provisions, an incinerator that burned only
household waste would not be considered a Subtitle C TSDF,
since it processed only nonhazardous (i. e., household) waste,
and it would not be considered a Subtitle C generator of
hazardous waste and would be free to dispose of its ash in
a Subtitle D landfill.
The 1980 regulations thus provided what is known as a
"waste stream" exemption for household waste, ibid., i. e.,
an exemption covering that category of waste from genera-
tion through treatment to final disposal of residues. The
regulation did not, however, exempt MWC ash from Sub-
title C coverage if the incinerator that produced the ash
burned anything in addition to household waste, such as
what petitioners' facility burns: nonhazardous industrial
waste. Thus, a facility like petitioners' would qualify as a
Subtitle C hazardous waste generator if the MWC ash it
produced was sufficiently toxic, see 40 CFR §§ 261.3, 261.24
(1993)-though it would still not qualify as a Subtitle C
TSDF, since all the waste it took in would be characterized
as nonhazardous. (An ash can be hazardous, even though
the product from which it is generated is not, because in the
new medium the contaminants are more concentrated and
more readily leachable, see 40 CFR §§ 261.3, 261.24, and
pt. 261, App. II (1993).)
Four years after these regulations were issued, Congress
enacted the Hazardous and Solid Waste Amendments of
1984, Pub. L. 98Â616, 98 Stat. 3221, which added to RCRA
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334 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Opinion of the Court
the "Clarification of Household Waste Exclusion" as § 3001(i),
§ 223, 98 Stat. 3252. The essence of our task in this case is
to determine whether, under that provision, the MWC ash
generated by petitioners' facility-a facility that would have
been considered a Subtitle C generator under the 1980 regu-
lations-is subject to regulation as hazardous waste under
Subtitle C. We conclude that it is.
Section 3001(i), 42 U. S. C. § 6921(i), entitled "Clarification
of household waste exclusion," provides:
"A resource recovery facility recovering energy from
the mass burning of municipal solid waste shall not be
deemed to be treating, storing, disposing of, or other-
wise managing hazardous wastes for the purposes of
regulation under this subchapter, if-
"(1) such facility-
"(A) receives and burns only-
"(i) household waste (from single and multiple dwell-
ings, hotels, motels, and other residential sources), and
"(ii) solid waste from commercial or industrial
sources that does not contain hazardous waste identified
or listed under this section, and
"(B) does not accept hazardous wastes identified or
listed under this section, and
"(2) the owner or operator of such facility has estab-
lished contractual requirements or other appropriate
notification or inspection procedures to assure that haz-
ardous wastes are not received at or burned in such
facility."
The plain meaning of this language is that so long as a
facility recovers energy by incineration of the appropriate
wastes, it (the facility) is not subject to Subtitle C regulation
as a facility that treats, stores, disposes of, or manages haz-
ardous waste. The provision quite clearly does not contain
any exclusion for the ash itself. Indeed, the waste the facil-
ity produces (as opposed to that which it receives) is not even
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Cite as: 511 U. S. 328 (1994) 335
Opinion of the Court
mentioned. There is thus no express support for petition-
ers' claim of a waste-stream exemption.1
Petitioners contend, however, that the practical effect of
the statutory language is to exempt the ash by virtue of
exempting the facility. If, they argue, the facility is not
deemed to be treating, storing, or disposing of hazardous
waste, then the ash that it treats, stores, or disposes of must
itself be considered nonhazardous. There are several prob-
lems with this argument. First, as we have explained, the
only exemption provided by the terms of the statute is for
the facility. It is the facility, not the ash, that "shall not be
deemed" to be subject to regulation under Subtitle C. Un-
like the preamble to the 1980 regulations, which had been in
existence for four years by the time § 3001(i) was enacted,
§ 3001(i) does not explicitly exempt MWC ash generated by
a resource recovery facility from regulation as a hazardous
waste. In light of that difference, and given the statute's
express declaration of national policy that "[w]aste that is . . .
generated should be treated, stored, or disposed of so as to
minimize the present and future threat to human health and
the environment," 42 U. S. C. § 6902(b), we cannot interpret
the statute to permit MWC ash sufficiently toxic to qualify
as hazardous to be disposed of in ordinary landfills.
Moreover, as the Court of Appeals observed, the statutory
language does not even exempt the facility in its capacity as
1 The dissent is able to describe the provision as exempting the ash itself
only by resorting to what might be called imaginative use of ellipsis:
"even though the material being treated and disposed of contains hazard-
ous components before, during, and after its treatment[,] that material
`shall not be deemed to be . . . hazardous.' " Post, at 346. In the full
text, quoted above, the subject of the phrase "shall not be deemed . . .
hazardous" is not the material, but the resource recovery facility, and the
complete phrase, including (italicized) the ellipsis, reads "shall not be
deemed to be treating, storing, disposing of, or otherwise managing haz-
ardous wastes." Deeming a facility not to be engaged in these activities
with respect to hazardous wastes is of course quite different from deeming
the output of that facility not to be hazardous.
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336 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Opinion of the Court
a generator of hazardous waste. RCRA defines "genera-
tion" as "the act or process of producing hazardous waste."
42 U. S. C. § 6903(6). There can be no question that the
creation of ash by incinerating municipal waste constitutes
"generation" of hazardous waste (assuming, of course, that
the ash qualifies as hazardous under 42 U. S. C. § 6921 and
its implementing regulations, 40 CFR pt. 261 (1993)). Yet
although § 3001(i) states that the exempted facility "shall not
be deemed to be treating, storing, disposing of, or otherwise
managing hazardous wastes," it significantly omits from the
catalog the word "generating." Petitioners say that because
the activities listed as exempt encompass the full scope of
the facility's operation, the failure to mention the activity
of generating is insignificant. But the statute itself refutes
this. Each of the three specific terms used in § 3001(i)-
"treating," "storing," and "disposing of"-is separately de-
fined by RCRA, and none covers the production of hazardous
waste.2 The fourth and less specific term ("otherwise man-
aging") is also defined, to mean "collection, source separa-
tion, storage, transportation, processing, treatment, recov-
ery, and disposal," 42 U. S. C. § 6903(7)-just about every
hazardous waste-related activity except generation. We
2 "Treatment" means "any method, technique, or process, including neu-
tralization, designed to change the physical, chemical, or biological charac-
ter or composition of any hazardous waste so as to neutralize such waste
or so as to render such waste nonhazardous, safer for transport, amenable
for recovery, amenable for storage, or reduced in volume. Such term in-
cludes any activity or processing designed to change the physical form or
chemical composition of hazardous waste so as to render it nonhazardous."
42 U. S. C. § 6903(34).
"Storage" means "the containment of hazardous waste, either on a tem-
porary basis or for a period of years, in such a manner as not to constitute
disposal of such hazardous waste." § 6903(33).
"Disposal" means "the discharge, deposit, injection, dumping, spilling,
leaking, or placing of any solid waste or hazardous waste into or on any
land or water so that such solid waste or hazardous waste or any constit-
uent thereof may enter the environment or be emitted into the air or
discharged into any waters." § 6903(3).
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Opinion of the Court
think it follows from the carefully constructed text of
§ 3001(i) that while a resource recovery facility's manage-
ment activities are excluded from Subtitle C regulation, its
generation of toxic ash is not.
Petitioners appeal to the legislative history of § 3001(i),
which includes, in the Senate Committee Report, the state-
ment that "[a]ll waste management activities of such a fa-
cility, including the generation, transportation, treatment,
storage and disposal of waste shall be covered by the exclu-
sion." S. Rep. No. 98Â284, p. 61 (1983) (emphasis added).
But it is the statute, and not the Committee Report, which
is the authoritative expression of the law, and the statute
prominently omits reference to generation. As the Court
of Appeals cogently put it: "Why should we, then, rely upon
a single word in a committee report that did not result in
legislation? Simply put, we shouldn't." 948 F. 2d, at 351.3
Petitioners point out that the activity by which they "treat"
municipal waste is the very same activity by which they
"generate" MWC ash, to wit, incineration. But there is
nothing extraordinary about an activity's being exempt for
some purposes and nonexempt for others. The incineration
here is exempt from TSDF regulation, but subject to regula-
tion as hazardous waste generation. (As we have noted, see
supra, at 331Â332, the latter is much less onerous.)
Our interpretation is confirmed by comparing § 3001(i)
with another statutory exemption in RCRA. In the Super-
fund Amendments and Reauthorization Act of 1986, Pub.
L. 99Â499, § 124(b), 100 Stat. 1689, Congress amended 42
U. S. C. § 6921 to provide that an "owner and operator of
equipment used to recover methane from a landfill shall not
be deemed to be managing, generating, transporting, treat-
ing, storing, or disposing of hazardous or liquid wastes within
3 Nothing in the dissent's somewhat lengthier discourse on § 3001(i)'s
legislative history, see post, at 343Â345, convinces us that the statute's
omission of the term "generation" is a scrivener's error.
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338 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Opinion of the Court
the meaning of" Subtitle C. This provision, in contrast to
§ 3001(i), provides a complete exemption by including the
term "generating" in its list of covered activities. "[I]t is
generally presumed that Congress acts intentionally and
purposely" when it "includes particular language in one sec-
tion of a statute but omits it in another," Keene Corp. v.
United States, 508 U. S. 200, 208 (1993) (internal quotation
marks omitted). We agree with respondents that this provi-
sion "shows that Congress knew how to draft a waste stream
exemption in RCRA when it wanted to." Brief for Re-
spondents 18.
Petitioners contend that our interpretation of § 3001(i)
turns the provision into an "empty gesture," Brief for
Petitioners 23, since even under the pre-existing regime
an incinerator burning household waste and nonhazardous
industrial waste was exempt from the Subtitle C TSDF
provisions. If § 3001(i) did not extend the waste-stream
exemption to the product of such a combined household/
nonhazardous-industrial treatment facility, petitioners argue,
it did nothing at all. But it is not nothing to codify a house-
hold waste exemption that had previously been subject to
agency revision; nor is it nothing (though petitioners may
value it as less than nothing) to restrict the exemption that
the agency previously provided-which is what the provision
here achieved, by withholding all waste-stream exemption
for waste processed by resource recovery facilities, even for
the waste stream passing through an exclusively household
waste facility.4
4 We express no opinion as to the validity of EPA's household waste
regulation as applied to resource recovery facilities before the effective
date of § 3001(i). Furthermore, since the statute in question addresses
only resource recovery facilities, not household waste in general, we are
unable to reach any conclusions concerning the validity of EPA's regula-
tory scheme for household wastes not processed by resource recovery
facilities.
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Opinion of the Court
We also do not agree with petitioners' contention that our
construction renders § 3001(i) ineffective for its intended
purpose of promoting household/nonhazardous-industrial re-
source recovery facilities, see 42 U. S. C. §§ 6902(a)(1), (10),
(11), by subjecting them "to the potentially enormous ex-
pense of managing ash residue as a hazardous waste." Brief
for Petitioners 20. It is simply not true that a facility which
is (as our interpretation says these facilities are) a hazardous
waste "generator" is also deemed to be "managing" hazard-
ous waste under RCRA. Section 3001(i) clearly exempts
these facilities from Subtitle C TSDF regulations, thus en-
abling them to avoid the "full brunt of EPA's enforcement
efforts under RCRA." Practice Guide § 29.05[1].
* * *
RCRA's twin goals of encouraging resource recovery and
protecting against contamination sometimes conflict. It is
not unusual for legislation to contain diverse purposes that
must be reconciled, and the most reliable guide for that task
is the enacted text. Here that requires us to reject the So-
licitor General's plea for deference to the EPA's interpreta-
tion, cf. Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837, 843Â844 (1984), which goes be-
yond the scope of whatever ambiguity § 3001(i) contains.
See John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav.
Bank, 510 U. S. 86, 109 (1993). Section 3001(i) simply cannot
be read to contain the cost-saving waste-stream exemption
petitioners seek.5
For the foregoing reasons, the judgment of the Court of
Appeals for the Seventh Circuit is
Affirmed.
5 In view of our construction of § 3001(i), we need not consider whether
an agency interpretation expressed in a memorandum like the Administra-
tor's in this case is entitled to any less deference under Chevron than
an interpretation adopted by rule published in the Federal Register, or
by adjudication.
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340 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Stevens, J., dissenting
Justice Stevens, with whom Justice O'Connor joins,
dissenting.
The statutory provision in question is a 1984 amendment
entitled "Clarification of Household Waste Exclusion." 1 To
understand that clarification, we must first examine the
"waste exclusion" that the amendment clarified and, more
particularly, the ambiguity that needed clarification. I
therefore begin with a discussion of the relevant pre-1984
law. I then examine the text of the statute as amended and
explain why the apparent tension between the broad defini-
tion of the term "hazardous waste generation" in the 1976
Act and the more specific exclusion for the activity of inciner-
ating household wastes (and mixtures of household and other
nonhazardous wastes) in the 1984 amendment should be re-
solved by giving effect to the later enactment.
I
When Congress enacted the Resource Conservation and
Recovery Act of 1976 (RCRA), it delegated to the Environ-
mental Protection Agency (EPA) vast regulatory authority
over the mountains of garbage that our society generates.
The statute directed the EPA to classify waste as hazardous
or nonhazardous and to establish regulatory controls over
the disposition of the two categories of waste pursuant to
Subtitles C and D of RCRA. 42 U. S. C. § 6921(a); see ante,
at 331Â332. To that end, the EPA in 1980 promulgated de-
tailed regulations establishing a federal hazardous waste
management system pursuant to Subtitle C.
Generally, though not always, the EPA regulations assume
that waste is properly characterized as hazardous or nonhaz-
ardous when it first becomes waste. Based on that charac-
1 Section 223 of the Hazardous and Solid Waste Amendments of 1984
amended § 3001 of the Resource Conservation and Recovery Act of 1976.
See 98 Stat. 3252; 42 U. S. C. § 6921(i). The text of the provision is quoted
ante, at 334.
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Cite as: 511 U. S. 328 (1994) 341
Stevens, J., dissenting
terization, the waste is regulated under either Subtitle C
or D. Household waste is regarded as nonhazardous when
it is first discarded and, as long as it is not mixed with haz-
ardous waste, it retains that characterization during and
after its treatment and disposal. Even though it contains
some materials that would be classified as hazardous in other
contexts, and even though its treatment may produce a resi-
due that contains a higher concentration of hazardous matter
than when the garbage was originally discarded, such waste
is regulated as nonhazardous waste under Subtitle D. See
ante, at 332Â333. Thus, an incinerator that burns nothing
but household waste might "generate" tons of hazardous resi-
due, but as a statutory matter it still is deemed to be process-
ing nonhazardous waste and is regulated as a Subtitle D,
rather than Subtitle C, facility.
Section 261.4(b)(1) of the EPA's 1980 regulations first es-
tablished the household waste exclusion. See 45 Fed. Reg.
33120 (1980). The relevant text of that regulation simply
provided that solid wastes derived from households (includ-
ing single and multiple residences, hotels, and motels) were
"not hazardous wastes." 2 The regulation itself said noth-
ing about the status of the residue that remains after the
incineration of such household waste. An accompanying
comment, however, unambiguously explained that "residues
remaining after treatment (e. g. incineration, thermal treat-
ment) are not subject to regulation as hazardous waste."
Id., at 33099. Thus, the administrative history of the 1980
2 The full text of 40 CFR § 261.4(b)(1) (1993) reads as follows:
"(b) Solid Wastes which are not hazardous wastes. The following solid
wastes are not hazardous wastes:
"(1) Household waste, including household waste that has been col-
lected, transported, stored, treated, disposed, recovered (e. g., refuse-
derived fuel) or reused. `Household waste' means any waste material (in-
cluding garbage, trash and sanitary wastes in septic tanks) derived from
households (including single and multiple residences, hotels and motels)."
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342 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Stevens, J., dissenting
regulation, rather than its text, revealed why a municipal
incinerator burning household waste was not treated as a
generator of hazardous waste.
The EPA's explanatory comment contained an important
warning: If household waste was "mixed with other hazard-
ous wastes," the entire mixture would be deemed hazard-
ous.3 Yet neither the comment nor the regulation itself
identified the consequences of mixing household waste with
other wastes that are entirely nonhazardous.4 Presumably
such a mixture would contain a lower percentage of hazard-
ous material than pure household waste, and therefore
should also be classified as nonhazardous-assumptions that
are not inconsistent with the EPA's warning that mixing
household waste "with other hazardous wastes" would
terminate the household waste exemption. The EPA's
failure to comment expressly on the significance of adding
100 percent nonhazardous commercial or industrial waste
nevertheless warranted further clarification.
Congress enacted that clarification in 1984. Elaborating
upon the EPA's warning in 1980, the text of the 1984 amend-
ment-§ 3001(i) of RCRA, 42 U. S. C. § 6921(i)-made clear
that a facility treating a mixture of household waste and
"solid waste from commercial or industrial sources that does
not contain hazardous waste," § 6921(i)(1)(A)(ii), shall not be
3 "When household waste is mixed with other hazardous wastes, how-
ever, the entire mixture will be deemed hazardous in accord with
§ 261.3(a)(2)(ii) of these regulations except when they are mixed with haz-
ardous wastes produced by small quantity generators (see § 261.5). While
household waste may not be hazardous per se, it is like any other solid
waste. Thus a mixture of household and hazardous (except those just
noted) wastes is also regulated as a hazardous waste under these regula-
tions." 45 Fed. Reg. 33099 (1980).
4 In this regard, because the regulations left unexplained the ramifica-
tions of mixing household waste with nonhousehold waste that is not haz-
ardous, the Court errs by asserting unqualifiedly that the Chicago inciner-
ator "would have been considered a Subtitle C generator under the 1980
regulations." Ante, at 334.
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Cite as: 511 U. S. 328 (1994) 343
Stevens, J., dissenting
deemed to be treating hazardous waste. In other words, the
addition of nonhazardous waste derived from other sources
does not extinguish the household waste exclusion.
The parallel between the 1980 regulation and the 1984
statutory amendment is striking. In 1980 the EPA referred
to the exclusion of household waste "in all phases of its man-
agement." 5 Similarly, the 1984 statute lists all phases of
the incinerator's management when it states that a facility
recovering energy from the mass burning of a mixture of
household waste and other solid waste that does not contain
hazardous waste "shall not be deemed to be treating, storing,
disposing of, or otherwise managing hazardous wastes."
See 42 U. S. C. § 6921(i). Even though that text only refers
to the exemption of the facility that burns the waste, the
title of the section significantly characterizes it as a waste
exclusion. Moreover, the title's description of the amend-
ment as a "clarification" identifies an intent to codify its
counterpart in the 1980 regulation.
The Report of the Senate Committee that recommended
the enactment of § 3001(i) demonstrates that the sponsors of
the legislation understood it to have the same meaning as
the 1980 EPA regulation that it "clarified." That Report,
which is worth setting out in some detail, first notes that the
reported bill adds the amendment to § 3001 "to clarify the
coverage of the household waste exclusion with respect to
resource recovery facilities recovering energy through the
mass burning of municipal solid waste." S. Rep. No. 98Â284,
p. 61 (1983). The EPA had promulgated the exclusion "in
its hazardous waste management regulations established to
exclude waste streams generated by consumers at the house-
hold level and by sources whose wastes are sufficiently simi-
5 "Since household waste is excluded in all phases of its management,
residues remaining after treatment (e. g. incineration, thermal treatment)
are not subject to regulation as hazardous waste." 45 Fed. Reg. 33099
(1980).
511us2$43I 11-03-97 18:42:25 PAGES OPINPGT
344 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Stevens, J., dissenting
lar in both quantity and quality to those of households."
Ibid. The Report explains that resource recovery facilities
frequently take in household wastes that are mixed with
other nonhazardous waste streams from a variety of com-
mercial and industrial sources, and emphasizes the impor-
tance of encouraging commercially viable resource recovery
facilities. Ibid. To that end, "[n]ew section [3001(i)] clari-
fies the original intent to include within the household waste
exclusion activities of a resource recovery facility which
recovers energy from the mass burning of household waste
and non-hazardous waste from other sources." Ibid. The
Report further explains:
"All waste management activities of such a facility, in-
cluding the generation, transportation, treatment, stor-
age and disposal of waste shall be covered by the exclu-
sion, if the limitations in paragraphs (1) and (2) of [the
amendment] are met. First, such facilities must receive
and burn only household waste and solid waste from
other sources which does not contain hazardous waste
identified or listed under section 3001.
"Second, such facilities cannot accept hazardous wastes
identified or listed under section 3001 from commercial
or industrial sources, and must establish contractual
requirements or other notification or inspection pro-
cedures to assure that such wastes are not received or
burned. This provision requires precautionary meas-
ures or procedures which can be shown to be effective
safeguards against the unintended acceptance of hazard-
ous waste. If such measures are in place, a resource
recovery facility whose activities would normally be
covered by the household waste exclusion should not be
penalized for the occasional, inadvertent receipt and
burning of hazardous material from such commercial or
industrial sources. Facilities must monitor the waste
they receive and, if necessary, revise the precautionary
511us2$43I 11-03-97 18:42:25 PAGES OPINPGT
Cite as: 511 U. S. 328 (1994) 345
Stevens, J., dissenting
measures they establish to assure against the receipt of
such hazardous waste." Ibid.
These comments referred to the Senate bill that became
law after a majority of the Senate followed the Committee's
recommendation "that the bill (as amended) do pass." Id.,
at 1.6 Given this commentary, it is quite unrealistic to as-
sume that the omission of the word "generating" from the
particularized description of management activities in the
statute was intended to render the statutory description any
less inclusive than either the 1980 regulation or the Commit-
tee Report. It is even more unrealistic to assume that legis-
lators voting on the 1984 amendment would have detected
any difference between the statutory text and the Commit-
tee's summary just because the term "generating" does not
appear in the 1984 amendment. A commonsense reading of
the statutory text in the light of the Committee Report and
against the background of the 1980 regulation reveals an ob-
vious purpose to preserve, not to change, the existing rule.7
6 The Conference Committee adopted the Senate amendment verbatim.
Its Report stated: "The Senate amendment clarifies that an energy recov-
ery facility is exempt from hazardous waste requirements if it burns only
residential and non-hazardous commercial wastes and establishes proce-
dures to assure hazardous wastes will not be burned at the facility."
H. R. Conf. Rep. No. 98Â1133, p. 106 (1984).
7 The majority's refusal to attach significance to " `a single word in a
committee report,' " ante, at 337, reveals either a misunderstanding of, or
a lack of respect for, the function of legislative committees. The purpose
of a committee report is to provide the Members of Congress who have
not taken part in the committee's deliberations with a summary of the
provisions of the bill and the reasons for the committee's recommendation
that the bill should become law. The report obviously does not have the
force of law. Yet when the text of a bill is not changed after it leaves
the committee, the Members are entitled to assume that the report fairly
summarizes the proposed legislation. What makes this Report significant
is not the single word "generation," but the unmistakable intent to main-
tain an existing rule of law. The omission of the single word "generating"
from the statute has no more significance than the omission of the same
word from the text of the 1980 regulation.
511us2$43I 11-03-97 18:42:25 PAGES OPINPGT
346 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Stevens, J., dissenting
II
The relevant statutory text is not as unambiguous as the
Court asserts. There is substantial tension between the
broad definition of the term "hazardous waste generation" in
§ 1004(6) of RCRA and the household waste exclusion codi-
fied by the 1984 amendment: Both provisions can be read
to describe the same activity. The former "means the act
or process of producing hazardous waste." 90 Stat. 2799;
42 U. S. C. § 6903(6). Read literally, that definition is broad
enough to encompass the burning of pure household waste
that produces some hazardous residue. The only statutory
escape from that conclusion is the 1984 amendment that pro-
vides an exemption for the activity of burning household
waste. Yet that exemption does not distinguish between
pure household waste, on the one hand, and a mixture of
household and other nonhazardous wastes, on the other. It
either exempts both the pure stream and the mixture, or it
exempts neither.
Indeed, commercial and industrial waste is by definition
nonhazardous: In order for it to fall within the exclusion
created by the 1984 amendment, it must not contain hazard-
ous components. As a consequence, the only aspect of this
waste stream that would ordinarily be regulated by Subtitle
C of RCRA is the ash residue. EPA could reasonably con-
clude, therefore, that to give any content to the statute with
respect to this component of the waste stream, the incinera-
tor ash must be exempted from Subtitle C regulation.
The exemption states that a facility burning solid waste
"shall not be deemed to be treating, storing, disposing of, or
otherwise managing hazardous wastes for the purposes of
regulation under this subchapter" if two conditions are satis-
fied. See ante, at 334. As long as the two conditions are
met-even though the material being treated and disposed
of contains hazardous components before, during, and after
its treatment-that material "shall not be deemed to be . . .
hazardous." By characterizing both the input and the out-
511us2$43I 11-03-97 18:42:25 PAGES OPINPGT
Cite as: 511 U. S. 328 (1994) 347
Stevens, J., dissenting
put as not hazardous, the 1984 amendment excludes the ac-
tivity from the definition of hazardous waste generation that
would otherwise apply. For it is obvious that the same ac-
tivity cannot both subject a facility to regulation because
its residue is hazardous and exempt the facility from regu-
lation because the statute deems the same residue to be
nonhazardous.8
Thus, if we are to be guided only by the literal meaning of
the statutory text, we must either give effect to the broad
definition of hazardous waste generation and subject all
municipal incinerators that generate hazardous ash to Sub-
title C regulation (including those that burn pure household
waste) or give effect to the exclusion that applies equally to
pure household waste and mixtures that include other non-
hazardous wastes. For several reasons the latter is the
proper choice. It effectuates the narrower and more re-
cently enacted provision rather than the earlier more gen-
eral definition. It respects the title of the 1984 amendment
by treating what follows as a "clarification" rather than a
repeal or a modification. It avoids the Court's rather sur-
prising (and uninvited) decision to invalidate the household
waste exclusion that the EPA adopted in 1980,9 on which
8 The Court characterizes my reading of the text as "imaginative use
of ellipsis," ante, at 335, n. 1, because the subject of the predicate "shall
not be deemed to be . . . hazardous" is the recovery facility rather than
the residue that is disposed of after the waste is burned. That is true,
but the reason the facility is exempted is because it is not "deemed to be
. . . disposing of . . . hazardous wastes." Thus it is the statutorily deemed
nonhazardous character of the object of the sentence-wastes-that effec-
tively exempts from Subtitle C regulation the activity and the facility
engaged in that activity. If, as the statute provides, a facility is not
deemed to be disposing of hazardous wastes when it disposes of the output
of the facility, it must be true that the output is deemed nonhazardous.
9 Although the first nine pages of the Court's opinion give the reader
the impression that the 1980 regulatory exclusion for pure household
waste was valid, the Court ultimately acknowledges that its construction
of the statute has the effect of "withholding all waste-stream exemption
for waste processed by resource recovery facilities, even for the waste
511us2$43I 11-03-97 18:42:25 PAGES OPINPGT
348 CHICAGO v. ENVIRONMENTAL DEFENSE FUND
Stevens, J., dissenting
municipalities throughout the Nation have reasonably relied
for over a decade.10 It explains why the legislative history
fails to mention an intent to impose significant new burdens
on the operation of municipal incinerators. Finally, it is the
construction that the EPA has adopted and that reasonable
jurists have accepted.11
The majority's decision today may represent sound policy.
Requiring cities to spend the necessary funds to dispose of
their incinerator residues in accordance with the strict re-
quirements of Subtitle C will provide additional protections
to the environment. It is also true, however, that the con-
servation of scarce landfill space and the encouragement of
the recovery of energy and valuable materials in municipal
wastes were major concerns motivating RCRA's enactment.
Whether those purposes will be disserved by regulating
municipal incinerators under Subtitle C and, if so, whether
environmental benefits may nevertheless justify the costs of
such additional regulation are questions of policy that we are
not competent to resolve. Those questions are precisely the
kind that Congress has directed the EPA to answer. The
stream passing through an exclusively household waste facility." Ante,
at 338. Of course, it is not the 1984 amendment that casts doubt on the
validity of the regulation, see ante, at 338, n. 4, but the Court's rigid read-
ing of § 1004(6)'s definition of the term "hazardous waste generation" that
has achieved that result. Since that definition has been in RCRA since
1976, the Court utterly fails to explain how the 1984 amendment made any
change in the law.
10 At oral argument Government counsel advised us that the Chicago
incinerator is one of about 150 comparable facilities in the country and
that the EPA has never contended that the acceptance of nonhazardous
commercial waste subjected any of them to regulation under Subtitle C.
Tr. of Oral Arg. 25.
11 See specially Judge Haight's comprehensive opinion in Environmental
Defense Fund, Inc. v. Wheelabrator Technologies, Inc., 725 F. Supp. 758
(SDNY 1989), aff'd, 931 F. 2d 211 (CA2 1991). That decision is cited with
approval by Circuit Judge Ripple, 985 F. 2d 303, 305 (CA7 1993) (dissenting
opinion); Environmental Defense Fund, Inc. v. Chicago, 948 F. 2d 345, 352
(CA7 1991) (dissenting opinion), in this litigation.
511us2$43I 11-03-97 18:42:25 PAGES OPINPGT
Cite as: 511 U. S. 328 (1994) 349
Stevens, J., dissenting
EPA's position, first adopted unambiguously in 1980 and still
maintained today,12 was and remains a correct and permissi-
ble interpretation of the EPA's broad congressional mandate.
Accordingly, I respectfully dissent.
12 Although there has been some ambivalence in the EPA's views since
1985, see 725 F. Supp., at 766Â768, there is no ambiguity or equivocation
in either its original or its present interpretation of RCRA.
511us2$44Z 11-03-97 18:43:45 PAGES OPINPGT
350 OCTOBER TERM, 1993
Syllabus
UNITED STATES v. ALVAREZ-SANCHEZ
certiorari to the united states court of appeals for
the ninth circuit
No. 92Â1812. Argued March 1, 1994-Decided May 2, 1994
Nearly three days after local law enforcement officers arrested respondent
on state narcotics charges, and while he was still in the custody of those
officers, respondent confessed to United States Secret Service agents
that he knew that Federal Reserve Notes the local officers had discov-
ered while searching his home were counterfeit. The agents arrested
him for possessing counterfeit currency and presented him on a federal
complaint the following day. The Federal District Court refused to
suppress the confession, rejecting, inter alia, respondent's argument
that the delay between his arrest on state charges and his presentment
on the federal charge rendered the confession inadmissible under 18
U. S. C. § 3501(c), which provides that a confession made while a defend-
ant is "under arrest or other detention in the custody of any law-
enforcement officer or law-enforcement agency, shall not be inadmissible
solely because of delay in bringing such person before [a judicial officer]
empowered to commit persons charged with offenses against the laws
of the United States" if the confession was made voluntarily and "within
six hours" following the arrest or other detention. Respondent was
convicted. In vacating the conviction, the Court of Appeals reasoned
that, by negative implication, § 3501(c) permits suppression in cases
where a confession is made outside the subsection's 6-hour post-arrest
safe harbor period. The court concluded that § 3501(c) applied to re-
spondent's statement because respondent was in custody and had not
been presented to a magistrate at the time he confessed, and held that
the confession should have been suppressed.
Held: Section 3501(c) does not apply to statements made by a person who
is being held solely on state charges. Pp. 355Â360.
(a) The subsection's text clearly indicates that its terms were never
triggered in this case. Respondent errs in suggesting that, because the
statute refers to a person in the custody of "any" law enforcement officer
or agency, the 6-hour time period begins to run whenever a person is
arrested by local, state, or federal officers. The subsection can apply
only when there is some "delay" in presenting a person to a federal
judicial officer. Because the term delay presumes an obligation to act,
there can be no "delay" in bringing a person before a federal judicial
officer until there is some obligation to do so in the first place. Such a
511us2$44Z 11-03-97 18:43:45 PAGES OPINPGT
Cite as: 511 U. S. 350 (1994) 351
Opinion of the Court
duty does not arise until the person is arrested or detained for a federal
crime. Although a person arrested on a federal charge by any officer-
local, state, or federal-is under "arrest or other detention" for the pur-
poses of § 3501(c) and its safe harbor period, one arrested on state
charges is not. This is true even if the arresting officers believe or
have cause to believe that federal law also has been violated, because
such a belief does not alter the underlying basis for the arrest and subse-
quent custody. Pp. 355Â358.
(b) Respondent was under arrest on state charges when he made his
inculpatory statement to the Secret Service agents. Section 3501(c)'s
terms thus did not come into play until he was arrested on a federal
charge-after he made the statement. That he was never arraigned or
prosecuted on the state charges does not alter this conclusion. Finally,
there is no need to consider the situation that would arise if state or
local authorities and federal officers act in collusion to obtain a confes-
sion in violation of a defendant's right to a prompt federal presentment,
because in this case there was no such collusive arrangement, only rou-
tine cooperation between law enforcement agencies. Pp. 359Â360.
975 F. 2d 1396, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Blackmun, O'Connor, Scalia, Kennedy, Souter, and Gins-
burg, JJ., joined. Ginsburg, J., filed a concurring opinion, in which
Blackmun, J., joined, post, p. 361. Stevens, J., filed an opinion concur-
ring in the judgment, post, p. 361.
Miguel A. Estrada argued the cause for the United States.
With him on the briefs were Solicitor General Days, Assist-
ant Attorney General Harris, and Deputy Solicitor Gen-
eral Bryson.
Carlton F. Gunn argued the cause and filed a brief for
respondent.
Justice Thomas delivered the opinion of the Court.
This case concerns the scope of 18 U. S. C. § 3501, the stat-
ute governing the admissibility of confessions in federal
prosecutions. Respondent contends that § 3501(c), which
provides that a custodial confession made by a person within
six hours following his arrest "shall not be inadmissible
solely because of delay in bringing such person" before a
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
352 UNITED STATES v. ALVAREZ-SANCHEZ
Opinion of the Court
federal magistrate, rendered inadmissible the custodial
statement he made more than six hours after his arrest on
state criminal charges. We conclude, however, that § 3501(c)
does not apply to statements made by a person who is being
held solely on state charges. Accordingly, we reverse the
judgment of the Court of Appeals.
I
On Friday, August 5, 1988, officers of the Los Angeles
Sheriff's Department obtained a warrant to search respond-
ent's residence for heroin and other evidence of narcotics dis-
tribution. While executing the warrant later that day, the
officers discovered not only narcotics, but $2,260 in counter-
feit Federal Reserve Notes. Respondent was arrested and
booked on state felony narcotics charges at approximately
5:40 p.m. He spent the weekend in custody.
On Monday morning, August 8, the Sheriff's Department
informed the United States Secret Service of the counterfeit
currency found in respondent's residence. Two Secret Serv-
ice agents arrived at the Sheriff's Department shortly before
midday to take possession of the currency and to interview
respondent. Using a deputy sheriff as an interpreter, the
agents informed respondent of his rights under Miranda v.
Arizona, 384 U. S. 436 (1966). After waiving these rights,
respondent admitted that he had known that the currency
was counterfeit. The agents arrested respondent shortly
thereafter, took him to the Secret Service field office for
booking, and prepared a criminal complaint. Due to conges-
tion in the Federal Magistrate's docket, respondent was not
presented on the federal complaint until the following day.1
Respondent was indicted for unlawful possession of coun-
terfeit currency in violation of 18 U. S. C. § 472. Prior to
trial, he moved to suppress the statement he had made dur-
1 For reasons that are not apparent from the record, respondent was
never arraigned or prosecuted by the State of California on the state
drug charges.
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Cite as: 511 U. S. 350 (1994) 353
Opinion of the Court
ing his interview with the Secret Service agents. He ar-
gued that his confession was made without a voluntary and
knowing waiver of his Miranda rights, and that the delay
between his arrest on state charges and his presentment on
the federal charge rendered his confession inadmissible
under 18 U. S. C. § 3501(c).2 The District Court rejected
2 Title 18 U. S. C. § 3501 provides:
"(a) In any criminal prosecution brought by the United States or by the
District of Columbia, a confession, as defined in subsection (e) hereof, shall
be admissible in evidence if it is voluntarily given. Before such confession
is received in evidence, the trial judge shall, out of the presence of the
jury, determine any issue as to voluntariness. If the trial judge deter-
mines that the confession was voluntarily made it shall be admitted in
evidence . . . .
"(b) The trial judge in determining the issue of voluntariness shall take
into consideration all the circumstances surrounding the giving of the con-
fession, including (1) the time elapsing between arrest and arraignment of
the defendant making the confession, if it was made after arrest and be-
fore arraignment . . . .
"The presence or absence of any of the above-mentioned factors to be
taken into consideration by the judge need not be conclusive on the issue
of voluntariness of the confession.
"(c) In any criminal prosecution by the United States or by the District
of Columbia, a confession made or given by a person who is a defendant
therein, while such person was under arrest or other detention in the
custody of any law-enforcement officer or law-enforcement agency, shall
not be inadmissible solely because of delay in bringing such person before
a magistrate or other officer empowered to commit persons charged with
offenses against the laws of the United States or of the District of Colum-
bia if such confession is found by the trial judge to have been made volun-
tarily and if the weight to be given the confession is left to the jury and
if such confession was made or given by such person within six hours
immediately following his arrest or other detention: Provided, That the
time limitation contained in this subsection shall not apply in any case in
which the delay in bringing such person before such magistrate or other
officer beyond such six-hour period is found by the trial judge to be reason-
able considering the means of transportation and the distance to be trav-
eled to the nearest available such magistrate or other officer.
"(d) Nothing contained in this section shall bar the admission in evi-
dence of any confession made or given voluntarily by any person to any
other person without interrogation by anyone, or at any time at which
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
354 UNITED STATES v. ALVAREZ-SANCHEZ
Opinion of the Court
both contentions and denied the motion. Respondent subse-
quently was convicted after a jury trial at which the state-
ment was admitted into evidence.
The United States Court of Appeals for the Ninth Circuit
vacated the conviction. 975 F. 2d 1396 (1992). The court
first outlined the exclusionary rule developed by this Court
in a line of cases including McNabb v. United States, 318
U. S. 332 (1943), and Mallory v. United States, 354 U. S. 449
(1957). The so-called McNabb-Mallory rule, adopted by
this Court "[i]n the exercise of its supervisory authority over
the administration of criminal justice in the federal courts,"
McNabb, supra, at 341, generally rendered inadmissible con-
fessions made during periods of detention that violated the
prompt presentment requirement of Rule 5(a) of the Federal
Rules of Criminal Procedure. See Mallory, supra, at 453.
Rule 5(a) provides that a person arrested for a federal of-
fense shall be taken "without unnecessary delay" before the
nearest federal magistrate, or before a state or local judicial
officer authorized to set bail for federal offenses under 18
U. S. C. § 3041, for a first appearance, or presentment.
The Ninth Circuit went on to discuss the interrelated pro-
visions of 18 U. S. C. § 3501 and the decisions of the Courts
of Appeals that have sought to discern the extent to which
this statute curtailed the McNabb-Mallory rule. Section
3501(a), the court observed, states that a confession "shall be
admitted in evidence" if voluntarily made, and § 3501(b) lists
several nonexclusive factors that the trial judge should con-
sider when making the voluntariness determination, includ-
ing "the time elapsing between arrest and arraignment of
the defendant making the confession, if it was made after
arrest and before arraignment." Section 3501(c) provides
the person who made or gave such confession was not under arrest or
other detention.
"(e) As used in this section, the term `confession' means any confession
of guilt of any criminal offense or any self-incriminating statement made
or given orally or in writing."
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
Cite as: 511 U. S. 350 (1994) 355
Opinion of the Court
that a confession made by a person within six hours following
his arrest or other detention "shall not be inadmissible"
solely because of delay in presenting the person to a federal
magistrate. The Ninth Circuit construed § 3501(c) as pre-
cluding suppression under McNabb-Mallory of any confes-
sion made during this "safe harbor" period following arrest.
975 F. 2d, at 1399. The court then reasoned that, by nega-
tive implication, § 3501(c) must in some circumstances allow
suppression of a confession made more than six hours after
arrest solely on the basis of pre-presentment delay, "regard-
less of the voluntariness of the confession." Id., at 1401.
The court thus concluded that the McNabb-Mallory rule, in
either a pure or slightly modified form, applies to confessions
made after the expiration of the safe harbor period.
Turning to the facts of the case before it, the court deter-
mined that § 3501(c) applied to respondent's statement be-
cause respondent was in custody and had not been presented
to a magistrate at the time of the interview. The court con-
cluded that the statement fell outside the subsection's safe
harbor because it was not made until Monday afternoon,
nearly three days after respondent's arrest on state charges.
975 F. 2d, at 1405, and n. 8 (citing United States v. Fouche,
776 F. 2d 1398, 1406 (CA9 1985)). Because the statement
was not made within the § 3501(c) safe harbor period, the
court applied both its pure and modified versions of the
McNabb-Mallory rule and held that, under either approach,
the confession should have been suppressed. 975 F. 2d, at
1405Â1406.
We granted the Government's petition for a writ of certio-
rari in order to consider the Ninth Circuit's interpretation of
§ 3501. 510 U. S. 912 (1993).
II
The parties argue at some length over the proper interpre-
tation of subsections (a) and (c) of 18 U. S. C. § 3501, and,
in particular, over the question whether § 3501(c) requires
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
356 UNITED STATES v. ALVAREZ-SANCHEZ
Opinion of the Court
suppression of a confession that is made by an arrestee prior
to presentment and more than six hours after arrest, regard-
less of whether the confession was voluntarily made. The
Government contends that through § 3501, Congress repudi-
ated the McNabb-Mallory rule in its entirety. Under this
theory, § 3501(c) creates a safe harbor that prohibits suppres-
sion on grounds of pre-presentment delay if a confession
is made within six hours following arrest, but says noth-
ing about the admissibility of a confession given beyond that
6-hour period. The admissibility of such a confession, the
Government argues, is controlled by § 3501(a), which pro-
vides that voluntary confessions "shall be admitted in
evidence."
Largely agreeing with the Ninth Circuit, respondent con-
tends that § 3501(c) codified a limited form of the McNabb-
Mallory rule-one that requires the suppression of a confes-
sion made before presentment but after the expiration of the
safe harbor period. A contrary interpretation of § 3501(c),
respondent argues, would render that subsection meaning-
less in the face of § 3501(a).
As the parties recognize, however, we need not address
subtle questions of statutory construction concerning the
safe harbor set out in § 3501(c), or resolve any tension be-
tween the provisions of that subsection and those of
§ 3501(a), if we determine that the terms of § 3501(c) were
never triggered in this case. We turn, then, to that thresh-
old inquiry.
When interpreting a statute, we look first and foremost to
its text. Connecticut Nat. Bank v. Germain, 503 U. S. 249,
253Â254 (1992). Section 3501(c) provides that in any federal
criminal prosecution,
"a confession made or given by a person who is a defend-
ant therein, while such person was under arrest or other
detention in the custody of any law-enforcement officer
or law-enforcement agency, shall not be inadmissible
solely because of delay in bringing such person before a
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
Cite as: 511 U. S. 350 (1994) 357
Opinion of the Court
magistrate or other officer empowered to commit per-
sons charged with offenses against the laws of the
United States or of the District of Columbia if such con-
fession is found by the trial judge to have been made
voluntarily and if . . . such confession was made or given
by such person within six hours immediately following
his arrest or other detention."
Respondent contends that he was under "arrest or other de-
tention" for purposes of § 3501(c) during the interview at the
Sheriff's Department, and that his statement to the Secret
Service agents constituted a confession governed by this
subsection. In respondent's view, it is irrelevant that he
was in the custody of the local authorities, rather than that
of the federal agents, when he made the statement. Be-
cause the statute applies to persons in the custody of "any"
law enforcement officer or law enforcement agency, respond-
ent suggests that the § 3501(c) 6-hour time period begins
to run whenever a person is arrested by local, state, or
federal officers.
We believe respondent errs in placing dispositive weight
on the broad statutory reference to "any" law enforcement
officer or agency without considering the rest of the statute.
Section 3501(c) provides that, if certain conditions are met,
a confession made by a person under "arrest or other deten-
tion" shall not be inadmissible in a subsequent federal prose-
cution "solely because of delay in bringing such person be-
fore a magistrate or other officer empowered to commit
persons charged with offenses against the laws of the United
States or of the District of Columbia." 18 U. S. C. § 3501(c)
(emphasis added). Clearly, the terms of the subsection can
apply only when there is some "delay" in presentment. Be-
cause "delay" is not defined in the statute, we must construe
the term "in accordance with its ordinary or natural mean-
ing." FDIC v. Meyer, 510 U. S. 471, 476 (1994). To delay is
"[t]o postpone until a later time" or to "put off an action"; a
delay is a "postponement." American Heritage Dictionary
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
358 UNITED STATES v. ALVAREZ-SANCHEZ
Opinion of the Court
493 (3d ed. 1992). The term presumes an obligation to act.
Thus, there can be no "delay" in bringing a person before a
federal magistrate until, at a minimum, there is some obliga-
tion to bring the person before such a judicial officer in the
first place. Plainly, a duty to present a person to a federal
magistrate does not arise until the person has been arrested
for a federal offense. See Fed. Rule Crim. Proc. 5(a) (re-
quiring initial appearance before a federal magistrate).3
Until a person is arrested or detained for a federal crime,
there is no duty, obligation, or reason to bring him before a
judicial officer "empowered to commit persons charged with
offenses against the laws of the United States," and there-
fore, no "delay" under § 3501(c) can occur.
In short, it is evident "from the context in which [the
phrase] is used," Deal v. United States, 508 U. S. 129, 132
(1993), that the "arrest or other detention" of which the sub-
section speaks must be an "arrest or other detention" for a
violation of federal law. If a person is arrested and held on
a federal charge by "any" law enforcement officer-federal,
state, or local-that person is under "arrest or other deten-
tion" for purposes of § 3501(c) and its 6-hour safe harbor pe-
riod. If, instead, the person is arrested and held on state
charges, § 3501(c) does not apply, and the safe harbor is not
implicated. This is true even if the arresting officers (who,
when the arrest is for a violation of state law, almost cer-
tainly will be agents of the State or one of its subdivisions)
believe or have cause to believe that the person also may
have violated federal law. Such a belief, which may not be
uncommon given that many activities are criminalized under
both state and federal law, does not alter the underlying
basis for the arrest and subsequent custody. As long as a
person is arrested and held only on state charges by state or
local authorities, the provisions of § 3501(c) are not triggered.
3 As we observed in Mallory v. United States, 354 U. S. 449 (1957), Rule
5(a) is part of "[t]he scheme for initiating a federal prosecution." Id., at
454 (emphasis added).
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
Cite as: 511 U. S. 350 (1994) 359
Opinion of the Court
In this case, respondent was under arrest on state narcot-
ics charges at the time he made his inculpatory statement to
the Secret Service agents. The terms of § 3501(c) thus did
not come into play until respondent was arrested by the
agents on a federal charge-after he made the statement.
Because respondent's statement was made voluntarily, as
the District Court found, see App. to Pet. for Cert. 45a, noth-
ing in § 3501 authorized its suppression. See 18 U. S. C.
§§ 3501(a), (d). The State's failure to arraign or prosecute
respondent does not alter this conclusion. Although Con-
gress could have provided that the exercise of prosecutorial
discretion by the State in this scenario retroactively trans-
forms time spent in the custody of state or local officers into
time spent under "arrest or other detention" for purposes of
§ 3501(c), it did not do so in the statute as written. Cf. Ger-
main, 503 U. S., at 253Â254.
Although we think proper application of § 3501(c) will be
as straightforward in most cases as it is here, the parties
identify one presumably rare scenario that might present
some potential for confusion; namely, the situation that
would arise if state or local authorities, acting in collusion
with federal officers, were to arrest and detain someone in
order to allow the federal agents to interrogate him in viola-
tion of his right to a prompt federal presentment. Long be-
fore the enactment of § 3501, we held that a confession ob-
tained during such a period of detention must be suppressed
if the defendant could demonstrate the existence of improper
collaboration between federal and state or local officers.
See Anderson v. United States, 318 U. S. 350 (1943).4 In this
4 In Anderson, a local sheriff, acting without authority under state law,
arrested several men suspected of dynamiting federally owned power lines
during the course of a labor dispute and allowed them to be interrogated
for several days by agents of the Federal Bureau of Investigation. Only
after the suspects made confessions were they arrested by the federal
agents and arraigned before a United States Commissioner. We held the
confessions to be inadmissible as the "improperly" secured product of an
impermissible "working arrangement" between state and federal officers.
318 U. S., at 356.
511us2$44N 11-03-97 18:43:45 PAGES OPINPGT
360 UNITED STATES v. ALVAREZ-SANCHEZ
Opinion of the Court
case, however, we need not address § 3501's effect, if any, on
the rule announced in Anderson. The District Court con-
cluded that there was "no evidence" that a "collusive ar-
rangement between state and federal agents . . . caused [re-
spondent's] confession to be made," App. to Pet. for Cert.
50a, and we see no reason to disturb that factual finding. It
is true that the Sheriff's Department informed the Secret
Service agents that counterfeit currency had been found in
respondent's possession, but such routine cooperation be-
tween local and federal authorities is, by itself, wholly unob-
jectionable: "Only by such an interchange of information can
society be adequately protected against crime." United
States v. Coppola, 281 F. 2d 340, 344 (CA2 1960) (en banc),
aff'd, 365 U. S. 762 (1961). Cf. Bartkus v. Illinois, 359 U. S.
121, 123 (1959).5
III
For the foregoing reasons, the judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
So ordered.
5 Respondent urges that the judgment below should be affirmed on an
alternative ground. Although he was initially arrested on state charges
on a Friday afternoon and held in local custody until Monday afternoon,
respondent was not brought before a magistrate during this period. In
County of Riverside v. McLaughlin, 500 U. S. 44, 57 (1991), we held that
the Fourth Amendment generally requires a judicial determination of
probable cause within 48 hours of a warrantless arrest. Relying on Mc-
Laughlin and Gerstein v. Pugh, 420 U. S. 103 (1975), respondent now as-
serts that his confession was obtained during an ongoing violation of his
Fourth Amendment right to a prompt determination of probable cause.
Respondent, however, did not raise a Fourth Amendment claim in the
District Court or the Court of Appeals; he argued for suppression based
only on the Fifth Amendment and § 3501. Finding no exceptional circum-
stances that would warrant reviewing a claim that was waived below, we
adhere to our general practice and decline to address respondent's Fourth
Amendment argument. See Granfinanciera, S. A. v. Nordberg, 492 U. S.
33, 38Â39 (1989); Heckler v. Campbell, 461 U. S. 458, 468Â469, n. 12 (1983).
511us2$44P 11-03-97 18:43:45 PAGES OPINPGT
Cite as: 511 U. S. 350 (1994) 361
Stevens, J., concurring in judgment
Justice Ginsburg, with whom Justice Blackmun
joins, concurring.
When Alvarez-Sanchez was arrested by the Los Angeles
Sheriff's Department, 18 U. S. C. § 3501(c) was not triggered.
As the Court explains, an arrest by state or local law en-
forcement authorities on state criminal charges is not an "ar-
rest or other detention" within the meaning of § 3501(c), and
there is no evidence in this case of any "improper collabora-
tion," ante, at 359, or "working arrangement," Anderson v.
United States, 318 U. S. 350, 356 (1943), between local and
federal authorities. See ante, at 357Â360, and n. 4. I write
separately only to emphasize that we do not decide today a
question on which the Courts of Appeals remain divided: the
effect of § 3501(c) on confessions obtained more than six hours
after an arrest on federal charges. See ante, at 356, 359Â360.*
Justice Stevens, concurring in the judgment.
The Court holds that § 3501(c) "does not apply to state-
ments made by a person who is being held solely on state
charges." Ante, at 352. While I agree with the Court's an-
swer to the narrow question the petition for certiorari pre-
sents,1 I write separately to emphasize the importance of the
factual premise underlying that answer.
*Compare, e. g., 975 F. 2d 1396, 1402Â1403 (1992) (decision below), and
United States v. Perez, 733 F. 2d 1026, 1031 (CA2 1984) ("[§]3501 leaves
the McNabb-Mallory rule intact with regard to confessions obtained after
a six hour delay not found to be reasonable"); United States v. Robinson,
439 F. 2d 553, 563Â564 (CADC 1970) (same), with United States v. Christo-
pher, 956 F. 2d 536, 538Â539 (CA6 1991) (under § 3501, unnecessary delay
of more than six hours, "standing alone, is not sufficient to justify the
suppression of an otherwise voluntary confession"), cert. denied, 505 U. S.
1207 (1992); United States v. Beltran, 761 F. 2d 1, 8 (CA1 1985) (same).
1 The question presented is "Whether a confession given to federal au-
thorities while a suspect is in state custody awaiting arraignment on state
charges must be suppressed as a result of delay between the suspect's
original arrest by state authorities and his eventual presentment on the
federal crime to which he confessed." Pet. for Cert. I.
511us2$44I 11-03-97 18:43:45 PAGES OPINPGT
362 UNITED STATES v. ALVAREZ-SANCHEZ
Stevens, J., concurring in judgment
As the case comes to us, it is undisputed that respondent
confessed while he was being held on state charges alone.
975 F. 2d 1396, 1398 (CA9 1992). Accepting that, the Court
of Appeals held that the confession nevertheless must be
suppressed because it read the phrase "detention in the
custody of any law-enforcement officer or law-enforcement
agency" in 18 U. S. C. § 3501(c) to include custody solely on
state charges. 975 F. 2d, at 1405. The Court of Appeals
therefore had no occasion to consider whether the state po-
lice officers' awareness of respondent's probable involvement
in two federal crimes 2 might indicate that the state charges
were not the sole basis for his detention.
In its petition for certiorari the Government correctly ad-
vised us that "[r]eversal of the Ninth Circuit's erroneous con-
clusion that the relevant arrest was effected by California
authorities will obviate the need to consider" additional is-
sues. Pet. for Cert. 13. Accordingly, what sort of coopera-
tion between federal and local authorities would remove a
case from the category in which the custody is decidedly on
state charges alone is a question not before us, and the Court
correctly declines to address the matter. Surely, however,
cases in which cooperation between state and federal author-
ities requires compliance with the terms of § 3501(c) are not
merely hypothetical examples of a "presumably rare sce-
nario," ante, at 359. And I definitely would not assume that
§ 3501(c) will never "come into play" until a suspect is ar-
rested on a federal charge. Ibid.
The Court also has no reason to comment on the Dis-
trict Court's finding that respondent's confession was not
the product of collusion between state and federal agents.
2 Los Angeles police officers took respondent into custody on a Friday.
975 F. 2d 1396, 1397Â1398 (CA9 1992). At the time of arrest, those officers
discovered that respondent possessed two kinds of contraband-narcotics
and counterfeit money, id., at 1398-and they presumably realized that he
was guilty of at least two federal offenses as well as the state-law violation
for which he was arrested.
511us2$44I 11-03-97 18:43:45 PAGES OPINPGT
Cite as: 511 U. S. 350 (1994) 363
Stevens, J., concurring in judgment
Ante, at 360. The Court of Appeals' construction of the
statute made review of that finding unnecessary. Thus
while the Court rightly declines to "disturb" the factual
finding, ibid., it should likewise stop short of suggesting that
anyone on this Court has determined that the finding is
either correct or incorrect.
For these reasons, I concur in the Court's judgment but
do not join its opinion.
511us2$45Z 07-02-96 23:34:09 PAGES OPINPGT
364 OCTOBER TERM, 1993
Per Curiam
IN RE ANDERSON
on motion for leave to proceed in forma pauperis
No. 93Â8312. Decided May 2, 1994
During the last three years alone, pro se petitioner Anderson has filed 22
separate petitions and motions, most for extraordinary writs. This
Court denied all of them without recorded dissent. He was also denied
leave to proceed in forma pauperis, pursuant to this Court's Rule 39.8,
on the last three occasions that he has submitted petitions for extraordi-
nary relief.
Held: Anderson is denied leave to proceed in forma pauperis in the in-
stant case, and the Clerk is instructed not to accept any further petitions
for extraordinary writs from him unless he pays the required docketing
fee and submits his petitions in compliance with Rule 33. For the rea-
sons discussed in In re Demos, 500 U. S. 16, In re Sindram, 498 U. S.
177, and In re McDonald, 489 U. S. 180, the Court feels compelled to
enter this order, which will allow it to devote its limited resources to
the claims of petitioners who have not abused the Court's process.
Motion denied.
Per Curiam.
Pro se petitioner Grant Anderson seeks an extraordinary
writ pursuant to 28 U. S. C. § 2241 and requests permission
to proceed in forma pauperis under this Court's Rule 39.
Pursuant to Rule 39.8, we deny petitioner leave to proceed in
forma pauperis.* Petitioner is allowed until May 23, 1994,
within which to pay the docketing fee required by Rule 38
and to submit his petition in compliance with this Court's
Rule 33. For the reasons explained below, we also direct
the Clerk of the Court not to accept any further petitions
for extraordinary writs from petitioner unless he pays the
docketing fee required by Rule 38 and submits his petitions
in compliance with Rule 33.
*This Court's Rule 39.8 provides: "If satisfied that a petition for a writ
of certiorari, jurisdictional statement, or petition for an extraordinary
writ, as the case may be, is frivolous or malicious, the Court may deny a
motion for leave to proceed in forma pauperis."
511us2$45Z 07-02-96 23:34:09 PAGES OPINPGT
Cite as: 511 U. S. 364 (1994) 365
Per Curiam
Petitioner is a prolific filer in this Court. In the last three
years alone, he has filed 22 separate petitions and motions,
including 3 petitions for certiorari, 6 motions for reconsidera-
tion, and 13 petitions for extraordinary writs. Thirteen of
these petitions and motions have been filed this Term. We
have denied all of the petitions and motions without recorded
dissent. We have also denied petitioner leave to proceed
in forma pauperis, pursuant to Rule 39.8, on the last three
occasions that he has submitted petitions for extraordinary
relief.
Like the majority of his previous submissions to this
Court, the instant petition for habeas corpus relates to the
denial of petitioner's various postconviction motions by the
District of Columbia Court of Appeals. The current petition
merely repeats arguments that we have considered pre-
viously and not found worthy of plenary review. Like the
three petitions in which we denied petitioner leave to pro-
ceed in forma pauperis, moreover, the instant petition is
patently frivolous.
The bulk of petitioner's submissions have been petitions
for extraordinary writs, and we limit our sanction accord-
ingly. We have imposed similar sanctions in three prior
cases. See In re Demos, 500 U. S. 16 (1991); In re Sindram,
498 U. S. 177 (1991); In re McDonald, 489 U. S. 180 (1989).
For the reasons discussed in these cases, we feel compelled
to bar petitioner from filing any further requests for extraor-
dinary relief. As we concluded in Sindram:
"The goal of fairly dispensing justice . . . is compromised
when the Court is forced to devote its limited resources
to the processing of repetitious and frivolous requests.
Pro se petitioners have a greater capacity than most to
disrupt the fair allocation of judicial resources because
they are not subject to the financial considerations-fil-
ing fees and attorney's fees-that deter other litigants
from filing frivolous petitions. The risks of abuse are
particularly acute with respect to applications for ex-
511us2$45Z 07-02-96 23:34:09 PAGES OPINPGT
366 IN RE ANDERSON
Stevens, J., dissenting
traordinary relief, since such petitions are not subject to
any time limitations and, theoretically, could be filed at
any time without limitation. In order to prevent frivo-
lous petitions for extraordinary relief from unsettling
the fair administration of justice, the Court has a duty
to deny in forma pauperis status to those individuals
who have abused the system." 498 U. S., at 179Â180
(citation omitted).
So long as petitioner qualifies under this Court's Rule 39
and does not similarly abuse the privilege, he remains free
to file in forma pauperis requests for relief other than an
extraordinary writ. See id., at 180. In the meantime, how-
ever, today's order "will allow this Court to devote its limited
resources to the claims of petitioners who have not abused
our process." In re Sassower, 510 U. S. 4, 6 (1993).
It is so ordered.
Justice Stevens, with whom Justice Blackmun joins,
dissenting.
During my years of service on the Court, I have not de-
tected any threat to the integrity of its processes, or its abil-
ity to administer justice fairly, caused by frivolous petitions,
whether filed by paupers or by affluent litigants. Three
years ago I expressed the opinion that the cost of adminis-
tering sanctions such as that imposed on this petitioner
would exceed any perceptible administrative benefit. In re
Amendment to Rule 39, 500 U. S. 13, 15 (1991). Any mini-
mal savings in time or photocopying costs, it seemed to me,
did not justify the damage that occasional orders denying in
forma pauperis status would cause to "the symbolic interest
in preserving equal access to the Court for both the rich
and the poor." Ibid. Three years' experience under this
Court's Rule 39.8 leaves me convinced that the dissenters in
the cases the Court cites had it right. See In re Demos, 500
U. S. 16, 17Â19 (1991); In re Sindram, 498 U. S. 177, 180Â183
511us2$45Z 07-02-96 23:34:09 PAGES OPINPGT
Cite as: 511 U. S. 364 (1994) 367
Stevens, J., dissenting
(1991); In re McDonald, 489 U. S. 180, 185Â188 (1989). See
also Day v. Day, 510 U. S. 1, 3 (1993) (Stevens, J., dissent-
ing). Again I respectfully dissent.
511us2$46Z 11-03-97 18:44:51 PAGES OPINPGT
368 OCTOBER TERM, 1993
Syllabus
BEECHAM v. UNITED STATES
certiorari to the united states court of appeals for
the fourth circuit
No. 93Â445. Argued March 21, 1994-Decided May 16, 1994*
Petitioners Beecham and Jones were each convicted of violating 18 U. S. C.
§ 922(g), which makes it unlawful for a convicted felon to possess a fire-
arm. Title 18 U. S. C. § 921(a)(20) qualifies the definition of "convic-
tion": "What constitutes a conviction [is] determined in accordance with
the law of the jurisdiction in which the proceedings were held," ibid.
(choice-of-law clause), and "[a]ny conviction which has been expunged,
or set aside or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction . . . ," ibid. (exemp-
tion clause). The respective District Courts decided that Beecham's
and Jones' prior federal convictions could not be counted because peti-
tioners' civil rights had been restored under state law. The Court of
Appeals reversed, holding that state restoration of civil rights could not
undo the federal disability flowing from a federal conviction.
Held: Petitioners can take advantage of § 921(a)(20) only if their civil rights
have been restored under federal law, the law of the jurisdiction where
the earlier proceedings were held. The choice-of-law clause is logically
read to apply to the exemption clause. The inquiry throughout the
statutory scheme is whether the person has a qualifying conviction on
his record. The choice-of-law clause defines the rule for determining
what constitutes a conviction. Asking, under the exemption clause,
whether a person's civil rights have been restored is just one step in
determining whether something should "be considered a conviction," a
determination that, by the terms of the choice-of-law clause, is governed
by the law of the convicting jurisdiction. That the other three items
listed in the exemption clause are either always or almost always done
by the jurisdiction of conviction also counsels in favor of interpreting
civil rights restoration as possessing the same attribute. This statu-
tory structure rebuts the arguments used by other Circuits to support
their conclusion that the two clauses should be read separately. More-
over, even if there is no federal law procedure for restoring civil rights
to federal felons, nothing in § 921(a)(20) supports the assumption that
*Together with Jones v. United States, also on certiorari to the same
court (see this Court's Rule 12.2).
511us2$46Z 11-03-97 18:44:51 PAGES OPINPGT
Cite as: 511 U. S. 368 (1994) 369
Opinion of the Court
Congress intended all felons to have access to all the procedures speci-
fied in the exemption clause, especially because there are many States
that do not restore civil rights, either. Because the statutory language
is unambiguous, the rule of lenity is inapplicable. See Chapman v.
United States, 500 U. S. 453, 463-464. Pp. 370Â374.
993 F. 2d 1539 (first case) and 993 F. 2d 1131 (second case), affirmed.
O'Connor, J., delivered the opinion for a unanimous Court.
Nathan Lewin argued the cause for petitioners. With
him on the briefs were Mathew S. Nosanchuk and R. Rus-
sell Stobbs.
Edward C. DuMont argued the cause for the United
States. With him on the brief were Solicitor General Days,
Assistant Attorney General Harris, Deputy Solicitor Gen-
eral Bryson, and John F. De Pue.
Justice O'Connor delivered the opinion of the Court.
Today we construe three provisions of the federal fire-
arms statutes:
"It shall be unlawful for any person who has been con-
victed . . . [of] a crime punishable by imprisonment for
a term exceeding one year . . . [to possess] any
firearm . . . ." 18 U. S. C. § 922(g).
"What constitutes a conviction . . . shall be determined
in accordance with the law of the jurisdiction in which
the proceedings were held." § 921(a)(20) (the choice-of-
law clause).
"Any conviction which has been expunged, or set aside
or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction . . . ."
Ibid. (the exemption clause).
The question before us is which jurisdiction's law is to be
considered in determining whether a felon "has had civil
rights restored" for a prior federal conviction.
511us2$46J 11-03-97 18:44:51 PAGES OPINPGT
370 BEECHAM v. UNITED STATES
Opinion of the Court
I
Each of the petitioners was convicted of violating § 922(g).
Beecham was convicted in Federal District Court in North
Carolina, Jones in Federal District Court in West Virginia.
Beecham's relevant prior conviction was a 1979 federal con-
viction in Tennessee, for violating 18 U. S. C. § 922(h). App.
11. Jones' prior convictions were two West Virginia state
convictions, for breaking and entering and for forgery, and
one 1971 federal conviction in Ohio for interstate transporta-
tion of a stolen automobile. Id., at 19Â20.
Jones had gotten his civil rights restored by West Virginia,
so his two West Virginia state convictions were not consid-
ered. Beecham claimed his civil rights had been restored
by Tennessee, the State in which he had been convicted of
his federal offense. The question presented to the District
Courts was whether these restorations of civil rights by
States could remove the disabilities imposed as a result of
Beecham's and Jones' federal convictions.
In both cases, the District Courts concluded the answer
was "yes," though for different reasons: In Beecham's case
the court looked to the law of the State in which the earlier
federal crime was committed (Tennessee); in Jones' case the
court looked to the law of the State in which Jones lived
when he committed the § 922(g) offense (West Virginia).
The Fourth Circuit reversed both rulings, reasoning that
state restoration of civil rights could not undo the federal
disability flowing from a federal conviction. See 993 F. 2d
1131 (1993) (Jones' case) and 993 F. 2d 1539 (1993) (judgt.
order in Beecham's case). We granted certiorari to resolve
the conflict this decision created with United States v. Ed-
wards, 946 F. 2d 1347 (CA8 1991), and United States v.
Geyler, 932 F. 2d 1330 (CA9 1991). 510 U. S. 975 (1993).
II
The question in these cases is how the choice-of-law clause
and the exemption clause of § 921(a)(20) are related. If, as
511us2$46J 11-03-97 18:44:51 PAGES OPINPGT
Cite as: 511 U. S. 368 (1994) 371
Opinion of the Court
the Fourth Circuit held, the choice-of-law clause applies to
the exemption clause, then we must look to whether Beech-
am's and Jones' civil rights were restored under federal law
(the law of the jurisdiction in which the earlier proceedings
were held). On the other hand, if, as the Eighth and Ninth
Circuits concluded, the two clauses ought to be read sepa-
rately, see Geyler, supra, at 1334Â1335; Edwards, supra, at
1349Â1350, then we would have to come up with a special
choice-of-law principle for the exemption clause.
We think the Fourth Circuit's reading is the better one.
Throughout the statutory scheme, the inquiry is: Does the
person have a qualifying conviction on his record? Section
922(g) imposes a disability on people who "ha[ve] been con-
victed." The choice-of-law clause defines the rule for deter-
mining "[w]hat constitutes a conviction." The exemption
clause says that a conviction for which a person has had civil
rights restored "shall not be considered a conviction." Ask-
ing whether a person has had civil rights restored is thus
just one step in determining whether something should "be
considered a conviction." By the terms of the choice-of-law
clause, this determination is governed by the law of the con-
victing jurisdiction.
This interpretation is supported by the fact that the other
three procedures listed in the exemption clause-pardons,
expungements, and set-asides-are either always or almost
always (depending on whether one considers a federal grant
of habeas corpus to be a "set-aside," a question we do not
now decide) done by the jurisdiction of conviction. That
several items in a list share an attribute counsels in favor of
interpreting the other items as possessing that attribute as
well. Dole v. Steelworkers, 494 U. S. 26, 36 (1990); Third
Nat. Bank in Nashville v. Impac Limited, Inc., 432 U. S. 312,
322 (1977); Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307
(1961). Though this canon of construction is by no means a
hard and fast rule, it is a factor pointing toward the Fourth
Circuit's construction of the statute.
511us2$46J 11-03-97 18:44:51 PAGES OPINPGT
372 BEECHAM v. UNITED STATES
Opinion of the Court
In light of the statutory structure, the fact that both
clauses speak of "conviction[s]" rebuts the Eighth and Ninth
Circuits' argument that the two clauses "pertain to two en-
tirely different sets of circumstances"-"the question of
what constitutes a conviction" and "the effect of post-
conviction events." Geyler, supra, at 1334Â1335; see also
Edwards, supra, at 1349. The exemption clause does not
simply say that a person whose civil rights have been re-
stored is exempted from § 922(g)'s firearms disqualification.
It says that the person's conviction "shall not be considered
a conviction." The effect of postconviction events is there-
fore, under the statutory scheme, just one element of the
question of what constitutes a conviction.
Likewise, the presence of the choice-of-law clause rebuts
the Eighth and Ninth Circuits' argument that the "plain, un-
limited language," Edwards, supra, at 1349; see also Geyler,
supra, at 1334, of the exemption clause-with its reference
to "[a]ny conviction . . . for which a person has . . . had civil
rights restored" (emphasis added)-refers to all civil rights
restorations, even those by a jurisdiction other than the one
in which the conviction was entered. Regardless of what
the quoted phrase might mean standing alone, in conjunction
with the choice-of-law clause it must refer only to restora-
tions of civil rights by the convicting jurisdiction. The plain
meaning that we seek to discern is the plain meaning of the
whole statute, not of isolated sentences. See King v. St.
Vincent's Hospital, 502 U. S. 215, 221 (1991); Massachusetts
v. Morash, 490 U. S. 107, 115 (1989); Shell Oil Co. v. Iowa
Dept. of Revenue, 488 U. S. 19, 26 (1988).
We are also unpersuaded by the Ninth Circuit's argument
that "[b]ecause there is no federal procedure for restoring
civil rights to a federal felon, Congress could not have ex-
pected that the federal government would perform this func-
tion," and that therefore "[t]he reference in § 921(a)(20) to the
restoration of civil rights must be to the state procedure."
511us2$46J 11-03-97 18:44:51 PAGES OPINPGT
Cite as: 511 U. S. 368 (1994) 373
Opinion of the Court
Geyler, 932 F. 2d, at 1333.* This reasoning assumes that
Congress intended felons convicted by all jurisdictions to
have access to all the procedures (pardon, expungement,
set-aside, and civil rights restoration) specified in the exemp-
tion clause; but nothing in § 921(a)(20) supports the assump-
tion on which this reasoning is based. Many jurisdictions
have no procedure for restoring civil rights. See Apps. A
and B to Brief for Petitioners (indicating that at least 11
States-Arkansas, Indiana, Kentucky, Maryland, Missouri,
New Jersey, Oklahoma, Pennsylvania, Texas, Vermont, and
Virginia suspend felons' civil rights but provide no procedure
for restoring them); see, e. g., Mo. Rev. Stat. § 561.026 (1979
and Supp. 1994); United States v. Thomas, 991 F. 2d 206,
213Â214 (CA5) (Texas law), cert. denied, 510 U. S. 1014
(1993). However one reads the statutory scheme-as look-
ing to the law of the convicting jurisdiction, or to the law of
the State in which the prior conduct took place, or to the law
of the State in which the felon now lives or has at one time
lived-people in some jurisdictions would have options open
to them that people in other jurisdictions may lack. Under
our reading of the statute, a person convicted in federal court
is no worse off than a person convicted in a court of a State
that does not restore civil rights.
*We express no opinion on whether a federal felon cannot have his civil
rights restored under federal law. This is a complicated question, one
which involves the interpretation of the federal law relating to federal
civil rights, see U. S. Const., Art. I, § 2, cl. 1 (right to vote for Representa-
tives); U. S. Const., Amdt. XVII (right to vote for Senators); 28 U. S. C.
§ 1865 (right to serve on a jury); consideration of the possible relevance of
18 U. S. C. § 925(c) (1988 ed., Supp. IV), which allows the Secretary of the
Treasury to grant relief from the disability imposed by § 922(g); and the
determination whether civil rights must be restored by an affirmative act
of a Government official, see United States v. Ramos, 961 F. 2d 1003, 1008
(CA1), cert. denied, 506 U. S. 934 (1992), or whether they may be restored
automatically by operation of law, see United States v. Hall, 20 F. 3d 1066
(CA10 1994). We do not address these matters today.
511us2$46J 11-03-97 18:44:51 PAGES OPINPGT
374 BEECHAM v. UNITED STATES
Opinion of the Court
Because the statutory language is unambiguous, the rule
of lenity, which petitioners urge us to employ here, is inappli-
cable. See Chapman v. United States, 500 U. S. 453, 463Â
464 (1991). Of course, by denying the existence of an ambi-
guity, we do not claim to be perfectly certain that we have
divined Congress' intentions as to this particular situation.
It is possible that the phrases on which our reading of the
statute turns-"[w]hat constitutes a conviction" and "shall
not be considered a conviction"-were accidents of statutory
drafting; it is possible that some legislators thought the two
sentences of § 921(a)(20) should be read separately, or, more
likely, that they never considered the matter at all. And we
recognize that in enacting the choice-of-law clause, legisla-
tors may have been simply responding to our decision in
Dickerson v. New Banner Institute, Inc., 460 U. S. 103
(1983), which held that federal law rather than state law
controls the definition of what constitutes a conviction, not
setting forth a choice-of-law principle for the restoration of
civil rights following a conviction.
But our task is not the hopeless one of ascertaining what
the legislators who passed the law would have decided had
they reconvened to consider petitioners' particular cases.
Rather, it is to determine whether the language the legisla-
tors actually enacted has a plain, unambiguous meaning. In
this instance, we believe it does.
III
We therefore conclude that petitioners can take advantage
of § 921(a)(20) only if they have had their civil rights restored
under federal law, and accordingly affirm the judgment of
the Court of Appeals.
So ordered.
511us2$47Z 11-03-97 18:48:27 PAGES OPINPGT
OCTOBER TERM, 1993 375
Syllabus
KOKKONEN v. GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA
certiorari to the united states court of appeals for
the ninth circuit
No. 93Â263. Argued March 1, 1994-Decided May 16, 1994
Following respondent's termination of an agency agreement between the
parties, petitioner brought a state-court suit alleging state-law claims.
Respondent removed the case to the Federal District Court on diversity
grounds and filed state-law counterclaims. The parties subsequently
arrived at a settlement agreement and, pursuant to Federal Rule of
Civil Procedure 41(a)(1)(ii), executed a Stipulation and Order of Dis-
missal with Prejudice, which did not refer to the settlement agreement
or reserve District Court jurisdiction to enforce it. After the District
Judge signed the Stipulation and Order, a dispute arose as to petition-
er's obligations under the settlement agreement. Respondent filed a
motion to enforce the agreement, which petitioner opposed on the
ground, inter alia, that the court lacked subject-matter jurisdiction.
The District Court entered an enforcement order, asserting that it had
"inherent power" to do so. The Court of Appeals agreed and affirmed.
Held: A federal district court, possessing only that power authorized by
Constitution and statute, lacks jurisdiction over a claim for breach of a
contract, part of the consideration for which was dismissal of an earlier
federal suit. No federal statute makes that connection (if it constitu-
tionally could) the basis for federal-court jurisdiction over the contract
dispute. Moreover, the doctrine of ancillary jurisdiction does not apply,
since the facts to be determined with regard to the alleged breach of
contract are quite separate from the facts to be determined in the princi-
pal suit, and automatic jurisdiction over such contracts is in no way
essential to the conduct of federal-court business. Julian v. Central
Trust Co., 193 U. S. 93, 113Â114, distinguished. If the parties wish to
provide for the court's jurisdiction to enforce a dismissal-producing set-
tlement agreement, they can seek to do so. In the event of dismissal
pursuant to Federal Rule of Civil Procedure 41(a)(2), the court may, in
its discretion, make the parties' compliance with the terms of the settle-
ment agreement (or retention of jurisdiction over the agreement) part
of its order. When dismissal occurs pursuant to Rule 41(a)(1)(ii), the
district court is empowered (with the consent of the parties) to incorpo-
rate the settlement agreement in the order or retain jurisdiction over
the settlement contract itself. Absent such action, however, enforce-
511us2$47Z 11-03-97 18:48:27 PAGES OPINPGT
376 KOKKONEN v. GUARDIAN LIFE INS. CO. OF AMERICA
Opinion of the Court
ment of the settlement agreement is for state courts, unless there is
some independent basis for federal jurisdiction. Pp. 377Â382.
993 F. 2d 883, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court.
Michael Reynolds Jencks argued the cause and filed briefs
for petitioner.
Frank C. Morris, Jr., argued the cause for respondent.
With him on the brief were Thomas R. Bagby and Andrea
R. Calem.*
Justice Scalia delivered the opinion of the Court.
After respondent Guardian Life Insurance Company 1 ter-
minated petitioner's general agency agreement, petitioner
brought suit in California Superior Court alleging various
state-law claims. Respondent removed the case to the
United States District Court for the Eastern District of Cali-
fornia on the basis of diversity jurisdiction and filed state-law
counterclaims. After closing arguments but before the Dis-
trict Judge instructed the jury, the parties arrived at an oral
agreement settling all claims and counterclaims, the sub-
stance of which they recited, on the record, before the Dis-
trict Judge in chambers. In April 1992, pursuant to Federal
Rule of Civil Procedure 41(a)(1)(ii), the parties executed a
*A brief of amici curiae urging reversal was filed for the State of Ohio
et al. by Lee Fisher, Attorney General of Ohio, Richard A. Cordray, State
Solicitor, and Simon B. Karas, Charles E. Cole, Attorney General of
Alaska, John Payton, Corporation Counsel of the District of Columbia,
Roland W. Burris, Attorney General of Illinois, Robert T. Stephan, At-
torney General of Kansas, Scott Harshbarger, Attorney General of Mas-
sachusetts, Joe Mazurek, Attorney General of Montana, Susan B. Loving,
Attorney General of Oklahoma, Ernest D. Preate, Jr., Attorney General
of Pennsylvania, and Stephen Rosenthal, Attorney General of Virginia.
1 Guardian Life is the sole respondent. The Guardian Insurance and
Annuity Corporation and the Guardian Investor Services Corporation
were listed as appellees below, but in fact they had been dismissed prior
to trial.
511us2$47K 11-03-97 18:48:27 PAGES OPINPGT
Cite as: 511 U. S. 375 (1994) 377
Opinion of the Court
Stipulation and Order of Dismissal with Prejudice, dismiss-
ing the complaint and cross-complaint. On April 13, the Dis-
trict Judge signed the Stipulation and Order under the nota-
tion "It is so ordered." The Stipulation and Order did not
reserve jurisdiction in the District Court to enforce the set-
tlement agreement; indeed, it did not so much as refer to the
settlement agreement.
Thereafter the parties disagreed on petitioner's obligation
to return certain files to respondent under the settlement
agreement. On May 21, respondent moved in the District
Court to enforce the agreement, which petitioner opposed on
the ground, inter alia, that the court lacked subject-matter
jurisdiction. The District Court entered an enforcement
order, asserting an "inherent power" to do so. Order En-
forcing Settlement (ED Cal., Aug. 19, 1992), App. 180. Peti-
tioner appealed, relying solely on his jurisdictional objection.
The United States Court of Appeals for the Ninth Circuit
affirmed, quoting its opinion in Wilkinson v. FBI, 922 F. 2d
555, 557 (1991), to the effect that after dismissal of an action
pursuant to a settlement agreement, a " `district court ha[s]
jurisdiction to decide the [enforcement] motion[] under its
inherent supervisory power.' " App. to Pet. for Cert. AÂ5
(Apr. 27, 1993) (unpublished), judgt. order reported at 993
F. 2d 883 (1993) (final brackets in original). We granted cer-
tiorari, 510 U. S. 930 (1993).
Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and stat-
ute, see Willy v. Coastal Corp., 503 U. S. 131, 136Â137 (1992);
Bender v. Williamsport Area School Dist., 475 U. S. 534, 541
(1986), which is not to be expanded by judicial decree, Amer-
ican Fire & Casualty Co. v. Finn, 341 U. S. 6 (1951). It is
to be presumed that a cause lies outside this limited jurisdic-
tion, Turner v. Bank of North-America, 4 Dall. 8, 11 (1799),
and the burden of establishing the contrary rests upon the
party asserting jurisdiction, McNutt v. General Motors Ac-
ceptance Corp., 298 U. S. 178, 182Â183 (1936).
511us2$47K 11-03-97 18:48:27 PAGES OPINPGT
378 KOKKONEN v. GUARDIAN LIFE INS. CO. OF AMERICA
Opinion of the Court
The dismissal in this case issued pursuant to Federal Rule
of Civil Procedure 41(a)(1)(ii), which provides for dismissal
"by filing a stipulation of dismissal signed by all parties who
have appeared in the action," and causes that dismissal to be
with prejudice if (as here) the stipulation so specifies. Nei-
ther the Rule nor any provision of law provides for jurisdic-
tion of the court over disputes arising out of an agreement
that produces the stipulation. It must be emphasized that
what respondent seeks in this case is enforcement of the set-
tlement agreement, and not merely reopening of the dis-
missed suit by reason of breach of the agreement that was
the basis for dismissal. Some Courts of Appeals have held
that the latter can be obtained under Federal Rule of Civil
Procedure 60(b)(6).2 See, e. g., Keeling v. Sheet Metal Work-
ers Int'l Assn., 937 F. 2d 408, 410 (CA9 1991); Fairfax Coun-
tywide Citizens Assn. v. Fairfax County, 571 F. 2d 1299,
1302Â1303 (CA4 1978). But see Sawka v. Healtheast, Inc.,
989 F. 2d 138, 140Â141 (CA3 1993) (breach of settlement
agreement insufficient reason to set dismissal aside on Rule
60(b)(6) grounds); Harman v. Pauley, 678 F. 2d 479, 480Â481
(CA4 1982) (Rule 60(b)(6) does not require vacating dismissal
order whenever a settlement agreement has been breached).
Enforcement of the settlement agreement, however, whether
through award of damages or decree of specific performance,
is more than just a continuation or renewal of the dismissed
suit, and hence requires its own basis for jurisdiction.
Respondent relies upon the doctrine of ancillary jurisdic-
tion, which recognizes federal courts' jurisdiction over some
matters (otherwise beyond their competence) that are inci-
dental to other matters properly before them. Respondent
appeals to our statement (quoting a then-current treatise on
2 The relevant provision of that Rule reads as follows:
"On motion and upon such terms as are just, the court may relieve a party
or a party's legal representative from a final judgment, order, or proceed-
ing for the following reasons: . . . (6) any other reason justifying relief
from the operation of the judgment."
511us2$47K 11-03-97 18:48:27 PAGES OPINPGT
Cite as: 511 U. S. 375 (1994) 379
Opinion of the Court
equity) in Julian v. Central Trust Co., 193 U. S. 93 (1904): "A
bill filed to continue a former litigation in the same court . . .
to obtain and secure the fruits, benefits and advantages of
the proceedings and judgment in a former suit in the same
court by the same or additional parties . . . or to obtain any
equitable relief in regard to, or connected with, or growing
out of, any judgment or proceeding at law rendered in the
same court, . . . is an ancillary suit." Id., at 113Â114 (citing
1 C. Bates, Federal Equity Procedure § 97 (1901)).
The doctrine of ancillary jurisdiction can hardly be criti-
cized for being overly rigid or precise, but we think it does
not stretch so far as that statement suggests. The expan-
sive language of Julian can be countered by (equally inaccu-
rate) dicta in later cases that provide an excessively limited
description of the doctrine. See, e. g., Fulton Nat. Bank of
Atlanta v. Hozier, 267 U. S. 276, 280 (1925) ("[N]o contro-
versy can be regarded as dependent or ancillary unless it has
direct relation to property or assets actually or construc-
tively drawn into the court's possession or control by the
principal suit"). The holding of Julian was not remotely as
permissive as its language: Jurisdiction was based upon the
fact that the court, in a prior decree of foreclosure, had ex-
pressly reserved jurisdiction to adjudicate claims against the
judicially conveyed property, and to retake and resell the
property if claims it found valid were not paid. 193 U. S.,
at 109Â112.
It is to the holdings of our cases, rather than their dicta,
that we must attend, and we find none of them that has, for
purposes of asserting otherwise nonexistent federal jurisdic-
tion, relied upon a relationship so tenuous as the breach of
an agreement that produced the dismissal of an earlier fed-
eral suit. Generally speaking, we have asserted ancillary
jurisdiction (in the very broad sense in which that term is
sometimes used) for two separate, though sometimes related,
purposes: (1) to permit disposition by a single court of claims
that are, in varying respects and degrees, factually interde-
511us2$47K 11-03-97 18:48:27 PAGES OPINPGT
380 KOKKONEN v. GUARDIAN LIFE INS. CO. OF AMERICA
Opinion of the Court
pendent, see, e. g., Baker v. Gold Seal Liquors, Inc., 417 U. S.
467, 469, n. 1 (1974); Moore v. New York Cotton Exchange,
270 U. S. 593, 610 (1926); and (2) to enable a court to function
successfully, that is, to manage its proceedings, vindicate its
authority, and effectuate its decrees, see, e. g., Chambers v.
NASCO, Inc., 501 U. S. 32 (1991) (power to compel payment
of opposing party's attorney's fees as sanction for miscon-
duct); United States v. Hudson, 7 Cranch 32, 34 (1812) (con-
tempt power to maintain order during proceedings). See
generally 13 C. Wright, A. Miller, & E. Cooper, Federal Prac-
tice and Procedure § 3523 (1984); cf. 28 U. S. C. § 1367 (1988
ed., Supp. IV).
Neither of these heads supports the present assertion of
jurisdiction. As to the first, the facts underlying respond-
ent's dismissed claim for breach of agency agreement and
those underlying its claim for breach of settlement agree-
ment have nothing to do with each other; it would neither
be necessary nor even particularly efficient that they be ad-
judicated together. No case of ours asserts, nor do we think
the concept of limited federal jurisdiction permits us to as-
sert, ancillary jurisdiction over any agreement that has as
part of its consideration the dismissal of a case before a fed-
eral court.
But it is the second head of ancillary jurisdiction, relating
to the court's power to protect its proceedings and vindicate
its authority, that both courts in the present case appear to
have relied upon, judging from their references to "inherent
power," see App. to Pet. for Cert. AÂ2 and AÂ5; App. 180.
We think, however, that the power asked for here is quite
remote from what courts require in order to perform their
functions. We have recognized inherent authority to ap-
point counsel to investigate and prosecute violation of a
court's order. Young v. United States ex rel. Vuitton et Fils
S. A., 481 U. S. 787 (1987). But the only order here was that
the suit be dismissed, a disposition that is in no way flouted
or imperiled by the alleged breach of the settlement agree-
511us2$47K 11-03-97 18:48:27 PAGES OPINPGT
Cite as: 511 U. S. 375 (1994) 381
Opinion of the Court
ment. The situation would be quite different if the parties'
obligation to comply with the terms of the settlement agree-
ment had been made part of the order of dismissal-either
by separate provision (such as a provision "retaining juris-
diction" over the settlement agreement) or by incorporating
the terms of the settlement agreement in the order. In that
event, a breach of the agreement would be a violation of the
order, and ancillary jurisdiction to enforce the agreement
would therefore exist. That, however, was not the case
here. The judge's mere awareness and approval of the
terms of the settlement agreement do not suffice to make
them part of his order.
The short of the matter is this: The suit involves a claim
for breach of a contract, part of the consideration for which
was dismissal of an earlier federal suit. No federal statute
makes that connection (if it constitutionally could) the basis
for federal-court jurisdiction over the contract dispute. The
facts to be determined with regard to such alleged breaches
of contract are quite separate from the facts to be deter-
mined in the principal suit, and automatic jurisdiction over
such contracts is in no way essential to the conduct of
federal-court business. If the parties wish to provide for
the court's enforcement of a dismissal-producing settlement
agreement, they can seek to do so. When the dismissal is
pursuant to Federal Rule of Civil Procedure 41(a)(2), which
specifies that the action "shall not be dismissed at the plain-
tiff's instance save upon order of the court and upon such
terms and conditions as the court deems proper," the parties'
compliance with the terms of the settlement contract (or the
court's "retention of jurisdiction" over the settlement con-
tract) may, in the court's discretion, be one of the terms set
forth in the order. Even when, as occurred here, the dis-
missal is pursuant to Rule 41(a)(1)(ii) (which does not by its
terms empower a district court to attach conditions to the
parties' stipulation of dismissal) we think the court is author-
ized to embody the settlement contract in its dismissal order
511us2$47K 11-03-97 18:48:27 PAGES OPINPGT
382 KOKKONEN v. GUARDIAN LIFE INS. CO. OF AMERICA
Opinion of the Court
(or, what has the same effect, retain jurisdiction over the
settlement contract) if the parties agree. Absent such ac-
tion, however, enforcement of the settlement agreement is
for state courts, unless there is some independent basis for
federal jurisdiction.
We reverse the judgment of the Court of Appeals and re-
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
511us2$48z 11-08-97 20:01:04 PAGES OPINPGT
OCTOBER TERM, 1993 383
Syllabus
C & A CARBONE, INC., et al. v. TOWN OF
CLARKSTOWN, NEW YORK
certiorari to the appellate division, supreme court
of new york, second judicial department
No. 92Â1402. Argued December 7, 1993-Decided May 16, 1994
Respondent town agreed to allow a private contractor to construct within
town limits a solid waste transfer station to separate recyclable from
nonrecyclable items and to operate the facility for five years, at which
time the town would buy it for one dollar. To finance the transfer sta-
tion's cost, the town guaranteed a minimum waste flow to the facility,
for which the contractor could charge the hauler a tipping fee which
exceeded the disposal cost of unsorted solid waste on the private mar-
ket. In order to meet the waste flow guarantee, the town adopted a
flow control ordinance, requiring all nonhazardous solid waste within
the town to be deposited at the transfer station. While recyclers like
petitioners (collectively Carbone) may receive solid waste at their own
sorting facilities, the ordinance requires them to bring nonrecyclable
residue to the transfer station, thus forbidding them to ship such waste
themselves and requiring them to pay the tipping fee on trash that has
already been sorted. After discovering that Carbone was shipping
nonrecyclable waste to out-of-state destinations, the town filed suit in
state court, seeking an injunction requiring that this residue be shipped
to the transfer station. The court granted summary judgment to the
town, finding the ordinance constitutional, and the Appellate Division
affirmed.
Held: The flow control ordinance violates the Commerce Clause.
Pp. 389Â395.
(a) The ordinance regulates interstate commerce. While its immedi-
ate effect is to direct local transport of solid waste to a designated site
within the local jurisdiction, its economic effects are interstate in reach.
By requiring Carbone to send the nonrecyclable portion of waste it re-
ceives from out of State to the transfer station at an additional cost, the
ordinance drives up the cost for out-of-state interests to dispose of their
solid waste. It also deprives out-of-state businesses of access to the
local market, by preventing everyone except the favored local operator
from performing the initial processing step. P. 389.
(b) The ordinance discriminates against interstate commerce, and
thus is invalid. See Philadelphia v. New Jersey, 437 U. S. 617, 624.
Although the ordinance erects no barrier to the import or export of any
511us2$48z 11-08-97 20:01:04 PAGES OPINPGT
384 C & A CARBONE, INC. v. CLARKSTOWN
Syllabus
solid waste, the article of commerce here is not so much the waste itself,
but rather the service of processing and disposing of it. With respect
to this stream of commerce, the ordinance discriminates, for it allows
only the favored operator to process waste that is within the town's
limits. It is no less discriminatory because in-state or in-town proces-
sors are also covered by the prohibition. Cf., e. g., Dean Milk Co. v.
Madison, 340 U. S. 349. Favoring a single local proprietor makes the
ordinance's protectionist effect even more acute, for it squelches compe-
tition in the waste-processing service altogether, leaving no room for
outside investment. Pp. 389Â392.
(c) The town does not lack other means to advance a legitimate local
interest. It could address alleged health and safety problems through
nondiscriminatory alternatives, such as uniform safety regulations that
would ensure that competitors do not underprice the market by cutting
corners on environmental safety. Justifying the ordinance as a way to
steer solid waste away from out-of-town disposal sites that the town
might deem harmful to the environment would extend its police power
beyond its jurisdictional boundaries. Moreover, the ordinance's reve-
nue generating purpose by itself is not a local interest that can justify
discrimination against interstate commerce. If special financing is
needed to ensure the transfer station's long-term survival, the town may
subsidize the facility through general taxes or municipal bonds, but it
may not employ discriminatory regulation to give the project an advan-
tage over rival out-of-state businesses. Pp. 392Â395.
182 App. Div. 2d 213, 587 N. Y. S. 2d 681, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens,
Scalia, Thomas, and Ginsburg, JJ., joined. O'Connor, J., filed an
opinion concurring in the judgment, post, p. 401. Souter, J., filed a dis-
senting opinion, in which Rehnquist, C. J., and Blackmun, J., joined,
post, p. 410.
Betty Jo Christian argued the cause for petitioners.
With her on the briefs were Paul J. Ondrasik, Jr., David
Silverman, Kenneth Resnik, and Charles G. Cole.
William C. Brashares argued the cause for respondent.
With him on the brief were Murray N. Jacobson and Rich-
ard A. Glickel.*
*Briefs of amici curiae urging reversal were filed for Incorporated Vil-
lages of Westbury, Mineola, and New Hyde Park et al. by Lawrence W.
Boes, Jerome F. Matedero, John M. Spellman, and Donna M. C. Giliberto;
511us2$48L 11-08-97 20:01:04 PAGES OPINPGT
Cite as: 511 U. S. 383 (1994) 385
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
As solid waste output continues apace and landfill capacity
becomes more costly and scarce, state and local governments
for the Chemical Manufacturers Association et al. by Theodore L. Garrett;
and for the National Solid Wastes Management Association by Bruce L.
Thall and Bruce J. Parker.
Briefs of amici curiae urging affirmance were filed for the State of
New Jersey by Robert J. Del Tufo, Attorney General, Mary C. Jacobson,
Assistant Attorney General, and Carla Vivian Bello, Senior Deputy At-
torney General; for the State of Ohio et al. by Lee Fisher, Attorney Gen-
eral, and Susan E. Ashbrook and Bryan F. Zima, Assistant Attorneys
General; and by the Attorneys General and other officials for their re-
spective jurisdictions as follows: Charles E. Cole, Attorney General of
Alaska, Grant Woods, Attorney General of Arizona, Richard Blumenthal,
Attorney General of Connecticut, Charles M. Oberly III, Attorney General
of Delaware, Robert A. Butterworth, Attorney General of Florida, Robert
A. Marks, Attorney General of Hawaii, Roland W. Burris, Attorney
General of Illinois, Pamela Carter, Attorney General of Indiana, Bonnie
J. Campbell, Attorney General of Iowa, Michael E. Carpenter, Attorney
General of Maine, Scott Harshbarger, Attorney General of Massachusetts,
Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III,
Attorney General of Minnesota, and Beverly Connerton and Stephen
Shakman, Assistant Attorneys General, Joseph P. Mazurek, Attorney
General of Montana, Michael F. Easley, Attorney General of North
Carolina, Theodore R. Kulongoski, Attorney General of Oregon, Ernest
D. Preate, Jr., Attorney General of Pennsylvania, Pedro R. Pierluisi, At-
torney General of Puerto Rico, T. Travis Medlock, Attorney General of
South Carolina, Stephen D. Rosenthal, Attorney General of Virginia, and
James E. Doyle, Attorney General of Wisconsin; for the State of New
York et al. by Robert Abrams, Attorney General, Jerry Boone, Solicitor
General, Andrea Green, Deputy Solicitor General, John J. Sipos and Gor-
don J. Johnson, Assistant Attorneys General, O. Peter Sherwood, Leonard
J. Koerner, and Martin Gold; for Prince George's County, Maryland, et al.
by Lewis A. Noonberg, Charles W. Thompson, Jr., and Michael P. Whalen;
for Rockland County, New York, by Ilan S. Schoenberger, for the County
of San Diego, California, by Lloyd M. Harmon, Jr., Diane Bardsley, Scott
H. Peters, W. Cullen MacDonald, Eric S. Petersen, and Jerome A. Bar-
ron; for the City of Indianapolis, Indiana, et al. by Scott M. DuBoff, Pamela
K. Akin, Felshaw King, Mary Anne Wood, Michael F. X. Gillin, John D.
Pirich, David P. Bobzien, Robert C. Cannon, and Patrick T. Boulden; for
the City of Springfield, Missouri, by Stuart H. Newberger, Jeffrey H. How-
511us2$48L 11-08-97 20:01:04 PAGES OPINPGT
386 C & A CARBONE, INC. v. CLARKSTOWN
Opinion of the Court
are expending significant resources to develop trash control
systems that are efficient, lawful, and protective of the envi-
ronment. The difficulty of their task is evident from the
number of recent cases that we have heard involving waste
transfer and treatment. See Philadelphia v. New Jersey,
437 U. S. 617 (1978); Chemical Waste Management, Inc. v.
Hunt, 504 U. S. 334 (1992); Fort Gratiot Sanitary Landfill,
Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353
(1992); Oregon Waste Systems, Inc. v. Department of Envi-
ronmental Quality of Ore., ante, p. 93. The case decided
today, while perhaps a small new chapter in that course of
decisions, rests nevertheless upon well-settled principles of
our Commerce Clause jurisprudence.
We consider a so-called flow control ordinance, which re-
quires all solid waste to be processed at a designated trans-
fer station before leaving the municipality. The avowed
purpose of the ordinance is to retain the processing fees
charged at the transfer station to amortize the cost of the
facility. Because it attains this goal by depriving competi-
tors, including out-of-state firms, of access to a local market,
we hold that the flow control ordinance violates the Com-
merce Clause.
The town of Clarkstown, New York, lies in the lower Hud-
son River Valley, just upstream from the Tappan Zee Bridge
and by highway minutes from New Jersey. Within the town
limits are the village of Nyack and the hamlet of West
Nyack. In August 1989, Clarkstown entered into a consent
ard, and Clifton S. Elgarten; for the Town of Smithtown, New York, et al.
by W. Cullen MacDonald, Richard L. Sigal, Eric S. Petersen, and Jon A.
Gerber; for the Solid Waste Disposal Authority of the city of Huntsville,
Alabama, by Charles H. Younger; for the Clarendon Foundation by Ron-
ald D. Maines; for the National Association of Bond Lawyers by C. Baird
Brown, Robert B. McKinstry, Jr., and Brendan K. Collins; for the Na-
tional Association of Counties et al. by Richard Ruda; for Ogden Projects,
Inc., by Robert C. Bernius and Jeffrey R. Horowitz; and for the Solid
Waste Association of North America et al. by Barry S. Shanoff, B. Rich-
ard Marsh, and Robert D. Thorington.
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Cite as: 511 U. S. 383 (1994) 387
Opinion of the Court
decree with the New York State Department of Environmen-
tal Conservation. The town agreed to close its landfill lo-
cated on Route 303 in West Nyack and build a new solid
waste transfer station on the same site. The station would
receive bulk solid waste and separate recyclable from nonre-
cyclable items. Recyclable waste would be baled for ship-
ment to a recycling facility; nonrecyclable waste, to a suitable
landfill or incinerator.
The cost of building the transfer station was estimated at
$1.4 million. A local private contractor agreed to construct
the facility and operate it for five years, after which the town
would buy it for $1. During those five years, the town guar-
anteed a minimum waste flow of 120,000 tons per year, for
which the contractor could charge the hauler a so-called tip-
ping fee of $81 per ton. If the station received less than
120,000 tons in a year, the town promised to make up the
tipping fee deficit. The object of this arrangement was to
amortize the cost of the transfer station: The town would
finance its new facility with the income generated by the
tipping fees.
The problem, of course, was how to meet the yearly guar-
antee. This difficulty was compounded by the fact that the
tipping fee of $81 per ton exceeded the disposal cost of un-
sorted solid waste on the private market. The solution the
town adopted was the flow control ordinance here in ques-
tion, Local Laws 1990, No. 9 of the Town of Clarkstown (full
text in Appendix). The ordinance requires all nonhazardous
solid waste within the town to be deposited at the Route
303 transfer station. Id., § 3.C (waste generated within the
town), § 5.A (waste generated outside and brought in). Non-
compliance is punishable by as much as a $1,000 fine and up
to 15 days in jail. § 7.
The petitioners in this case are C & A Carbone, Inc., a
company engaged in the processing of solid waste, and vari-
ous related companies or persons, all of whom we designate
Carbone. Carbone operates a recycling center in Clarks-
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388 C & A CARBONE, INC. v. CLARKSTOWN
Opinion of the Court
town, where it receives bulk solid waste, sorts and bales
it, and then ships it to other processing facilities-much as
occurs at the town's new transfer station. While the flow
control ordinance permits recyclers like Carbone to continue
receiving solid waste, § 3.C, it requires them to bring the
nonrecyclable residue from that waste to the Route 303
station. It thus forbids Carbone to ship the nonrecyclable
waste itself, and it requires Carbone to pay a tipping fee on
trash that Carbone has already sorted.
In March 1991, a tractor-trailer containing 23 bales of
solid waste struck an overpass on the Palisades Interstate
Parkway. When the police investigated the accident, they
discovered the truck was carrying household waste from
Carbone's Clarkstown plant to an Indiana landfill. The
Clarkstown police put Carbone's plant under surveillance
and in the next few days seized six more tractor-trailers
leaving the facility. The trucks also contained nonrecyclable
waste, originating both within and without the town, and
destined for disposal sites in Illinois, Indiana, West Virginia,
and Florida.
The town of Clarkstown sued Carbone in New York
Supreme Court, Rockland County, seeking an injunction
requiring Carbone to ship all nonrecyclable waste to the
Route 303 transfer station. Carbone responded by suing
in United States District Court to enjoin the flow control
ordinance. On July 11, the federal court granted Carbone's
injunction, finding a sufficient likelihood that the ordinance
violated the Commerce Clause of the United States Constitu-
tion. C. & A. Carbone, Inc. v. Clarkstown, 770 F. Supp. 848
(SDNY 1991).
Four days later, the New York court granted summary
judgment to respondent. The court declared the flow con-
trol ordinance constitutional and enjoined Carbone to comply
with it. The federal court then dissolved its injunction.
The Appellate Division affirmed. 182 App. Div. 2d 213,
587 N. Y. S. 2d 681 (2d Dept. 1992). The court found that the
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Opinion of the Court
ordinance did not discriminate against interstate commerce
because it "applies evenhandedly to all solid waste processed
within the Town, regardless of point of origin." Id., at 222,
587 N. Y. S. 2d, at 686. The New York Court of Appeals
denied Carbone's motion for leave to appeal. 80 N. Y. 2d
760, 605 N. E. 2d 874 (1992). We granted certiorari, 508
U. S. 938 (1993), and now reverse.
At the outset we confirm that the flow control ordinance
does regulate interstate commerce, despite the town's posi-
tion to the contrary. The town says that its ordinance
reaches only waste within its jurisdiction and is in practical
effect a quarantine: It prevents garbage from entering the
stream of interstate commerce until it is made safe. This
reasoning is premised, however, on an outdated and mistaken
concept of what constitutes interstate commerce.
While the immediate effect of the ordinance is to direct
local transport of solid waste to a designated site within the
local jurisdiction, its economic effects are interstate in reach.
The Carbone facility in Clarkstown receives and processes
waste from places other than Clarkstown, including from out
of State. By requiring Carbone to send the nonrecyclable
portion of this waste to the Route 303 transfer station at an
additional cost, the flow control ordinance drives up the cost
for out-of-state interests to dispose of their solid waste.
Furthermore, even as to waste originant in Clarkstown, the
ordinance prevents everyone except the favored local opera-
tor from performing the initial processing step. The ordi-
nance thus deprives out-of-state businesses of access to a
local market. These economic effects are more than enough
to bring the Clarkstown ordinance within the purview of the
Commerce Clause. It is well settled that actions are within
the domain of the Commerce Clause if they burden interstate
commerce or impede its free flow. NLRB v. Jones & Laugh-
lin Steel Corp., 301 U. S. 1, 31 (1937).
The real question is whether the flow control ordinance is
valid despite its undoubted effect on interstate commerce.
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390 C & A CARBONE, INC. v. CLARKSTOWN
Opinion of the Court
For this inquiry, our case law yields two lines of analysis:
first, whether the ordinance discriminates against interstate
commerce, Philadelphia, 437 U. S., at 624; and second,
whether the ordinance imposes a burden on interstate com-
merce that is "clearly excessive in relation to the putative
local benefits," Pike v. Bruce Church, Inc., 397 U. S. 137, 142
(1970). As we find that the ordinance discriminates against
interstate commerce, we need not resort to the Pike test.
The central rationale for the rule against discrimination is
to prohibit state or municipal laws whose object is local eco-
nomic protectionism, laws that would excite those jealousies
and retaliatory measures the Constitution was designed to
prevent. See The Federalist No. 22, pp. 143Â145 (C. Ros-
siter ed. 1961) (A. Hamilton); Madison, Vices of the Political
System of the United States, in 2 Writings of James Madison
362Â363 (G. Hunt ed. 1901). We have interpreted the Com-
merce Clause to invalidate local laws that impose commercial
barriers or discriminate against an article of commerce by
reason of its origin or destination out of State. See, e. g.,
Philadelphia, supra (striking down New Jersey statute that
prohibited the import of solid waste); Hughes v. Oklahoma,
441 U. S. 322 (1979) (striking down Oklahoma law that pro-
hibited the export of natural minnows).
Clarkstown protests that its ordinance does not discrimi-
nate because it does not differentiate solid waste on the basis
of its geographic origin. All solid waste, regardless of ori-
gin, must be processed at the designated transfer station be-
fore it leaves the town. Unlike the statute in Philadelphia,
says the town, the ordinance erects no barrier to the import
or export of any solid waste but requires only that the waste
be channeled through the designated facility.
Our initial discussion of the effects of the ordinance on
interstate commerce goes far toward refuting the town's con-
tention that there is no discrimination in its regulatory
scheme. The town's own arguments go the rest of the way.
As the town itself points out, what makes garbage a profit-
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Opinion of the Court
able business is not its own worth but the fact that its pos-
sessor must pay to get rid of it. In other words, the article
of commerce is not so much the solid waste itself, but rather
the service of processing and disposing of it.
With respect to this stream of commerce, the flow control
ordinance discriminates, for it allows only the favored opera-
tor to process waste that is within the limits of the town.
The ordinance is no less discriminatory because in-state or
in-town processors are also covered by the prohibition. In
Dean Milk Co. v. Madison, 340 U. S. 349 (1951), we struck
down a city ordinance that required all milk sold in the city
to be pasteurized within five miles of the city lines. We
found it "immaterial that Wisconsin milk from outside the
Madison area is subjected to the same proscription as that
moving in interstate commerce." Id., at 354, n. 4. Accord,
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of
Natural Resources, 504 U. S., at 361 ("[O]ur prior cases teach
that a State (or one of its political subdivisions) may not
avoid the strictures of the Commerce Clause by curtailing
the movement of articles of commerce through subdivisions
of the State, rather than through the State itself").
In this light, the flow control ordinance is just one more
instance of local processing requirements that we long have
held invalid. See Minnesota v. Barber, 136 U. S. 313 (1890)
(striking down a Minnesota statute that required any meat
sold within the State, whether originating within or without
the State, to be examined by an inspector within the State);
Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928)
(striking down a Louisiana statute that forbade shrimp to be
exported unless the heads and hulls had first been removed
within the State); Johnson v. Haydel, 278 U. S. 16 (1928)
(striking down analogous Louisiana statute for oysters);
Toomer v. Witsell, 334 U. S. 385 (1948) (striking down South
Carolina statute that required shrimp fishermen to unload,
pack, and stamp their catch before shipping it to another
State); Pike v. Bruce Church, Inc., supra (striking down
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392 C & A CARBONE, INC. v. CLARKSTOWN
Opinion of the Court
Arizona statute that required all Arizona-grown cantaloupes
to be packaged within the State prior to export); South-
Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82
(1984) (striking down an Alaska regulation that required all
Alaska timber to be processed within the State prior to ex-
port). The essential vice in laws of this sort is that they
bar the import of the processing service. Out-of-state meat
inspectors, or shrimp hullers, or milk pasteurizers, are de-
prived of access to local demand for their services. Put an-
other way, the offending local laws hoard a local resource-
be it meat, shrimp, or milk-for the benefit of local busi-
nesses that treat it.
The flow control ordinance has the same design and effect.
It hoards solid waste, and the demand to get rid of it, for the
benefit of the preferred processing facility. The only con-
ceivable distinction from the cases cited above is that the
flow control ordinance favors a single local proprietor. But
this difference just makes the protectionist effect of the ordi-
nance more acute. In Dean Milk, the local processing re-
quirement at least permitted pasteurizers within five miles
of the city to compete. An out-of-state pasteurizer who
wanted access to that market might have built a pasteurizing
facility within the radius. The flow control ordinance at
issue here squelches competition in the waste-processing
service altogether, leaving no room for investment from
outside.
Discrimination against interstate commerce in favor of
local business or investment is per se invalid, save in a nar-
row class of cases in which the municipality can demonstrate,
under rigorous scrutiny, that it has no other means to ad-
vance a legitimate local interest. Maine v. Taylor, 477 U. S.
131 (1986) (upholding Maine's ban on the import of baitfish
because Maine had no other way to prevent the spread of
parasites and the adulteration of its native fish species). A
number of amici contend that the flow control ordinance fits
into this narrow class. They suggest that as landfill space
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Opinion of the Court
diminishes and environmental cleanup costs escalate, meas-
ures like flow control become necessary to ensure the safe
handling and proper treatment of solid waste.
The teaching of our cases is that these arguments must be
rejected absent the clearest showing that the unobstructed
flow of interstate commerce itself is unable to solve the local
problem. The Commerce Clause presumes a national mar-
ket free from local legislation that discriminates in favor of
local interests. Here Clarkstown has any number of nondis-
criminatory alternatives for addressing the health and envi-
ronmental problems alleged to justify the ordinance in ques-
tion. The most obvious would be uniform safety regulations
enacted without the object to discriminate. These regu-
lations would ensure that competitors like Carbone do not
underprice the market by cutting corners on environmental
safety.
Nor may Clarkstown justify the flow control ordinance as
a way to steer solid waste away from out-of-town disposal
sites that it might deem harmful to the environment. To do
so would extend the town's police power beyond its jurisdic-
tional bounds. States and localities may not attach restric-
tions to exports or imports in order to control commerce in
other States. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511
(1935) (striking down New York law that prohibited the sale
of milk unless the price paid to the original milk producer
equaled the minimum required by New York).
The flow control ordinance does serve a central purpose
that a nonprotectionist regulation would not: It ensures that
the town-sponsored facility will be profitable, so that the
local contractor can build it and Clarkstown can buy it back
at nominal cost in five years. In other words, as the most
candid of amici and even Clarkstown admit, the flow control
ordinance is a financing measure. By itself, of course, reve-
nue generation is not a local interest that can justify discrim-
ination against interstate commerce. Otherwise States
could impose discriminatory taxes against solid waste origi-
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394 C & A CARBONE, INC. v. CLARKSTOWN
Opinion of the Court
nating outside the State. See Chemical Waste Manage-
ment, Inc. v. Hunt, 504 U. S. 334 (1992) (striking down Ala-
bama statute that imposed additional fee on all hazardous
waste generated outside the State and disposed of within
the State); Oregon Waste Systems, Inc. v. Department of
Environmental Quality of Ore., ante, p. 93 (striking down
Oregon statute that imposed additional fee on solid waste
generated outside the State and disposed of within the
State).
Clarkstown maintains that special financing is necessary
to ensure the long-term survival of the designated facility.
If so, the town may subsidize the facility through general
taxes or municipal bonds. New Energy Co. of Ind. v.
Limbach, 486 U. S. 269, 278 (1988). But having elected to
use the open market to earn revenues for its project, the
town may not employ discriminatory regulation to give
that project an advantage over rival businesses from out of
State.
Though the Clarkstown ordinance may not in explicit
terms seek to regulate interstate commerce, it does so none-
theless by its practical effect and design. In this respect
the ordinance is not far different from the state law this
Court found invalid in Buck v. Kuykendall, 267 U. S. 307
(1925). That statute prohibited common carriers from using
state highways over certain routes without a certificate of
public convenience. Writing for the Court, Justice Brandeis
said of the law: "Its primary purpose is not regulation with
a view to safety or to conservation of the highways, but the
prohibition of competition. It determines not the manner of
use, but the persons by whom the highways may be used.
It prohibits such use to some persons while permitting it to
others for the same purpose and in the same manner." Id.,
at 315Â316.
State and local governments may not use their regulatory
power to favor local enterprise by prohibiting patronage of
out-of-state competitors or their facilities. We reverse the
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Cite as: 511 U. S. 383 (1994) 395
Appendix to opinion of the Court
judgment and remand the case for proceedings not inconsist-
ent with this decision.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Town of Clarkstown
Local Law No. 9 of the year 1990
A local law entitled, "SOLID WASTE TRANSPORTATION
AND DISPOSAL."
Be it enacted by the TOWN BOARD of the Town of
CLARKSTOWN as follows:
Section 1. Definitions
Unless otherwise stated expressly, the following words
and expressions, where used in this chapter, shall have the
meanings ascribed to them by this section:
ACCEPTABLE WASTE-All residential, commercial and
industrial solid waste as defined in New York State Law, and
Regulations, including Construction and Demolition Debris.
Acceptable Waste shall not include Hazardous Waste, Patho-
logical Waste or sludge.
CONSTRUCTION AND DEMOLITION DEBRIS-Un-
contaminated solid waste resulting from the construction, re-
modeling, repair and demolition of structures and roads; and
uncontaminated solid waste consisting of vegetation result-
ing from land clearing and grubbing, utility line maintenance
and seasonal and storm related cleanup. Such waste in-
cludes, but is not limited to bricks, concrete and other
masonry materials, soil, rock, wood, wall coverings, plaster,
drywall, plumbing fixtures, non-asbestos insulation, roofing
shingles, asphaltic pavement, electrical wiring and compo-
nents containing no hazardous liquids, metals, brush grass
clippings and leaves that are incidental to any of the above.
HAZARDOUS WASTE-All solid waste designated as
such under the Environmental Conservation Law, the Com-
prehensive Environmental Response, Compensation and Lia-
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396 C & A CARBONE, INC. v. CLARKSTOWN
Appendix to opinion of the Court
bility Act of 1980, the Resource Conservation and Recovery
Act of 1976 or any other applicable law.
PATHOLOGICAL WASTE-Waste material which may
be considered infectious or biohazardous, originating from
hospitals, public or private medical clinics, departments
or research laboratories, pharmaceutical industries, blood
banks, forensic medical departments, mortuaries, veterinary
facilities and other similar facilities and includes equipment,
instruments, utensils, fomites, laboratory waste (including
pathological specimens and fomites attendant thereto), sur-
gical facilities, equipment, bedding and utensils (including
pathological specimens and disposal fomites attendant
thereto), sharps (hypodermic needles, syringes, etc.), dialysis
unit waste, animal carcasses, offal and body parts, biological
materials, (vaccines, medicines, etc.) and other similar mate-
rials, but does not include any such waste material which is
determined by evidence satisfactory to the Town to have
been rendered non-infectious and non-biohazardous.
PERSONS-Any individual, partnership, corporation, as-
sociation, trust, business trust, joint venturer, governmental
body or other entity, howsoever constituted.
UNACCEPTABLE WASTE-Hazardous Waste, Patho-
logical Waste and sludge.
SLUDGE-Solid, semi-solid or liquid waste generated
from a sewage treatment plant, wastewater treatment plant,
water supply treatment plant, or air pollution control facility.
TOWN-When used herein, refers to the Town of
Clarkstown.
Section 2. General Provisions
A. Intent; Purpose.
I. The intent and purpose of this chapter is to provide for
the transportation and disposition of all solid waste within
or generated within the Town of Clarkstown so that all ac-
ceptable solid waste generated within the Town is delivered
to the Town of Clarkstown solid waste facility situate at
Route 303, West Nyack, New York and such other sites,
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Appendix to opinion of the Court
situate in the Town, as may be approved by the Town for
recycling, processing or for other disposition or handling of
acceptable solid waste.
II. The powers and duties enumerated in this law consti-
tute proper town purposes intended to benefit the health,
welfare and safety of Town residents. Additionally, it is
hereby found that, in the exercise of control over the collec-
tion, transportation and disposal of solid waste, the Town is
exercising essential and proper governmental functions.
B. Supervision and Regulation.
The Town Board hereby designates the Director of the
Department of Environmental Control to be responsible for
the supervision and regulation of the transportation and dis-
position of all acceptable waste generated within the Town
of Clarkstown. The Director of the Department of Environ-
mental Control shall be responsible for and shall supervise
the Town's activities in connection with any waste collection
and disposal agreements entered into between the Town and
third parties and shall report to the Town Board with re-
spect thereto.
C. Power to Adopt Rules and Regulations.
The Town Board may, after a public hearing, adopt such
rules and regulations as may be necessary to effectuate the
purposes of this chapter. At least seven (7) business days'
prior notice of such public hearing shall be published in the
official newspaper of the Town. A copy of all rules and
regulations promulgated hereunder and any amendments
thereto shall be filed in the office of the Town Clerk upon
adoption and shall be effective as provided therein.
Section 3. Collection and Disposal of Acceptable Waste.
A. The removal, transportation and/or disposal of accept-
able waste within or generated within the Town of Clarks-
town shall be exclusively disposed of, controlled and regu-
lated by the Town under this chapter and Chapter 50 and
Chapter 82 of the Clarkstown Town Code, together with such
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398 C & A CARBONE, INC. v. CLARKSTOWN
Appendix to opinion of the Court
rules and regulations as the Town has or may from time to
time adopt.
B. All acceptable waste, as defined herein, except for con-
struction and demolition debris, shall be removed, trans-
ported and/or disposed of only by carters licensed pursuant
to the requirements of Chapter 50 of the Clarkstown Town
Code and any amendments thereto. All other persons are
hereby prohibited from removing, transporting or disposing
of acceptable waste, except for construction and demolition
debris generated within the Town of Clarkstown, and except
as may be provided for herein or in the rules and regulations
adopted pursuant to this chapter and/or Chapter 50 of the
Clarkstown Town Code.
C. All acceptable waste generated within the territorial
limits of the Town of Clarkstown is to be transported and
delivered to the Town of Clarkstown solid waste facility lo-
cated at Route 303, West Nyack, New York or to such other
disposal or recycling facilities operated by the Town of
Clarkstown,* or to recycling centers established by special
permit pursuant to Chapter 106 of the Clarkstown Town
Code, except for recyclable materials which are separated
from solid waste at the point of origin or generation of such
solid waste, which separated recyclable materials may be
transported and delivered to facilities within the Town as
aforesaid, or to sites outside the town. As to acceptable
waste brought to said recycling facilities, the unrecycled resi-
due shall be disposed of at a solid waste facility operated by
the Town of Clarkstown.
D. It shall be unlawful to dispose of any acceptable waste
generated or collected within the Town at any location other
than the facilities or sites set forth in Paragraph "C" above.
*In a separate zoning ordinance, the Town declared that it shall have
only one designated transfer station. Town of Clarkstown Zoning Code
§ 106Â3.
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Cite as: 511 U. S. 383 (1994) 399
Appendix to opinion of the Court
Section 4. Disposal of Unacceptable Waste.
A. No unacceptable waste shall be delivered to the Town
of Clarkstown solid waste facility situate at Route 303, West
Nyack, New York or other solid waste facility operated by
the Town of Clarkstown or recycling centers established by
special permit pursuant to Chapter 106 of the Clarkstown
Town Code by any person, including, without limitation, any
licensed carter or any municipality. Failure to comply with
the provisions of this section shall be subject to the provi-
sions with respect to such penalties and enforcement, includ-
ing the suspension or revocation of licenses and the imposi-
tion of fines, in accordance with the provisions of this chapter
and/or Chapter 50 of the Clarkstown Town Code and any
amendments thereto. The Town Board of Clarkstown may,
by resolution, provide for the disposal of sewer sludge, gen-
erated by a municipal sewer system or the Rockland County
sewer district, at a disposal facility situate within the Town
of Clarkstown.
B. It shall be unlawful, within the Town, to dispose of or
attempt to dispose of unacceptable waste of any kind gener-
ated within the territorial limits of the Town of Clarkstown,
except for sewer sludge as provided for in Section "A" above.
Section 5. Acceptable and Unacceptable Waste Generated
Outside the Town of Clarkstown.
A. It shall be unlawful, within the Town, to dispose of or
attempt to dispose of acceptable or unacceptable waste of
any kind generated or collected outside the territorial limits
of the Town of Clarkstown, except for acceptable waste dis-
posed of at a Town operated facility, pursuant to agreement
with the Town of Clarkstown and recyclables, as defined in
Chapter 82 of the Clarkstown Town Code, brought to a re-
cycling center established by special permit pursuant to
Chapter 106 of the Clarkstown Town Code.
B. It shall be unlawful for any person to import accept-
able waste or unacceptable waste from outside the Town of
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400 C & A CARBONE, INC. v. CLARKSTOWN
Appendix to opinion of the Court
Clarkstown and dump same on any property located within
the Town of Clarkstown and to proceed to sift, sort, mulch
or otherwise mix the said material with dirt, water, garbage,
rubbish or other substance, having the effect of concealing
the contents or origin of said mixture. This provision shall
not apply to composting of acceptable waste carried out by
the Town of Clarkstown.
Section 6. Fees for Disposal of Acceptable Waste at Town
Operated Facilities.
There shall be separate fees established for disposal of
acceptable waste at Town operated disposal facilities. The
Town Board, by resolution adopted from time to time, shall
fix the various fees to be collected at said facilities. The
initial fees to be collected are those adopted by the Town
Board on December 11, 1990 by Resolution Number 1097.
Section 7. Penalties for Offenses.
Notwithstanding any other provision of this chapter, the
violation of any provision of this chapter shall be punishable
by a fine of not more than one thousand dollars ($1,000.00)
or by imprisonment for a period not exceeding fifteen (15)
days for each offense, or by both fine and imprisonment, and
each day that such violation shall be permitted to continue
shall constitute a separate offense hereunder.
Section 8. Repealer; Severability.
Ordinances and local laws or parts of ordinances or local
laws heretofore enacted and inconsistent with any of the
terms or provisions of this chapter are hereby repealed. In
the event that any portion of this chapter shall be declared
invalid by a court of competent jurisdiction, such invalidity
shall not be deemed to affect the remaining portions hereof.
Section 9. When Effective.
This chapter shall take effect immediately upon filing in
the office of the Secretary of State.
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O'Connor, J., concurring in judgment
Justice O'Connor, concurring in the judgment.
The town of Clarkstown's flow control ordinance requires
all "acceptable waste" generated or collected in the town to
be disposed of only at the town's solid waste facility. Town
of Clarkstown, Local Law 9, §§ 3.CÂD (1990) (Local Law 9).
The Court holds today that this ordinance violates the Com-
merce Clause because it discriminates against interstate
commerce. Ante, at 390. I agree with the majority's ulti-
mate conclusion that the ordinance violates the dormant
Commerce Clause. In my view, however, the town's ordi-
nance is unconstitutional not because of facial or effective
discrimination against interstate commerce, but rather be-
cause it imposes an excessive burden on interstate com-
merce. I also write separately to address the contention
that flow control ordinances of this sort have been expressly
authorized by Congress, and are thus outside the purview of
the dormant Commerce Clause.
I
The scope of the dormant Commerce Clause is a judicial
creation. On its face, the Clause provides only that "[t]he
Congress shall have Power . . . To regulate Commerce . . .
among the several States . . . ." U. S. Const., Art. I, § 8,
cl. 3. This Court long ago concluded, however, that the
Clause not only empowers Congress to regulate interstate
commerce, but also imposes limitations on the States in the
absence of congressional action:
"This principle that our economic unit is the Nation,
which alone has the gamut of powers necessary to con-
trol of the economy, including the vital power of erecting
customs barriers against foreign competition, has as its
corollary that the states are not separable economic
units. . . . [W]hat is ultimate is the principle that one
state in its dealings with another may not place itself in
a position of economic isolation." H. P. Hood & Sons,
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402 C & A CARBONE, INC. v. CLARKSTOWN
O'Connor, J., concurring in judgment
Inc. v. Du Mond, 336 U. S. 525, 537Â538 (1949) (internal
quotation marks and citations omitted).
Our decisions therefore hold that the dormant Commerce
Clause forbids States and their subdivisions to regulate
interstate commerce.
We have generally distinguished between two types of im-
permissible regulations. A facially nondiscriminatory regu-
lation supported by a legitimate state interest which inciden-
tally burdens interstate commerce is constitutional unless
the burden on interstate trade is clearly excessive in relation
to the local benefits. See Brown-Forman Distillers Corp.
v. New York State Liquor Authority, 476 U. S. 573, 579
(1986); Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970).
Where, however, a regulation "affirmatively" or "clearly"
discriminates against interstate commerce on its face or
in practical effect, it violates the Constitution unless the
discrimination is demonstrably justified by a valid factor
unrelated to protectionism. See Wyoming v. Oklahoma, 502
U. S. 437, 454 (1992); Maine v. Taylor, 477 U. S. 131, 138
(1986). Of course, there is no clear line separating these
categories. "In either situation the critical consideration
is the overall effect of the statute on both local and interstate
activity." Brown-Forman Distillers, supra, at 579.
Local Law 9 prohibits anyone except the town-authorized
transfer station operator from processing discarded waste
and shipping it out of town. In effect, the town has given a
waste processing monopoly to the transfer station. The ma-
jority concludes that this processing monopoly facially dis-
criminates against interstate commerce. Ante, at 391Â392.
In support of this conclusion, the majority cites previous de-
cisions of this Court striking down regulatory enactments
requiring that a particular economic activity be performed
within the jurisdiction. See, e. g., Dean Milk Co. v. Madi-
son, 340 U. S. 349 (1951) (unconstitutional for city to require
milk to be pasteurized within five miles of the city); Minne-
sota v. Barber, 136 U. S. 313 (1890) (unconstitutional for State
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Cite as: 511 U. S. 383 (1994) 403
O'Connor, J., concurring in judgment
to require meat sold within the State to be examined by
state inspector); Foster-Fountain Packing Co. v. Haydel, 278
U. S. 1 (1928) (unconstitutional for State to require that
shrimp heads and hulls must be removed before shrimp can
be removed from the State); South-Central Timber Develop-
ment, Inc. v. Wunnicke, 467 U. S. 82 (1984) (unconstitutional
for State to require all timber to be processed within the
State prior to export).
Local Law 9, however, lacks an important feature common
to the regulations at issue in these cases-namely, discrimi-
nation on the basis of geographic origin. In each of the cited
cases, the challenged enactment gave a competitive advan-
tage to local business as a group vis-a -vis their out-of-state
or nonlocal competitors as a group. In effect, the regulating
jurisdiction-be it a State (Pike), a county (Fort Gratiot
Sanitary Landfill, Inc. v. Michigan Dept. of Natural Re-
sources, 504 U. S. 353 (1992)), or a city (Dean Milk)-drew
a line around itself and treated those inside the line more
favorably than those outside the line. Thus, in Pike, the
Court held that an Arizona law requiring that Arizona canta-
loupes be packaged in Arizona before being shipped out of
state facially discriminated against interstate commerce:
The benefits of the discriminatory scheme benefited the Ari-
zona packaging industry, at the expense of its competition in
California. Similarly, in Dean Milk, on which the majority
heavily relies, the city of Madison drew a line around its
perimeter and required that all milk sold in the city be pas-
teurized only by dairies located inside the line. This type
of geographic distinction, which confers an economic advan-
tage on local interests in general, is common to all the local
processing cases cited by the majority. And the Court has,
I believe, correctly concluded that these arrangements are
protectionist either in purpose or practical effect, and thus
amount to virtually per se discrimination.
In my view, the majority fails to come to terms with a
significant distinction between the laws in the local process-
511us2$48J 11-08-97 20:01:05 PAGES OPINPGT
404 C & A CARBONE, INC. v. CLARKSTOWN
O'Connor, J., concurring in judgment
ing cases discussed above and Local Law 9. Unlike the
regulations we have previously struck down, Local Law 9
does not give more favorable treatment to local interests
as a group as compared to out-of-state or out-of-town eco-
nomic interests. Rather, the garbage sorting monopoly is
achieved at the expense of all competitors, be they local or
nonlocal. That the ordinance does not discriminate on the
basis of geographic origin is vividly illustrated by the iden-
tity of the plaintiffs in this very action: Petitioners are local
recyclers, physically located in Clarkstown, that desire to
process waste themselves, and thus bypass the town's desig-
nated transfer facility. Because in-town processors-like
petitioners-and out-of-town processors are treated equally,
I cannot agree that Local Law 9 "discriminates" against in-
terstate commerce. Rather, Local Law 9 "discriminates"
evenhandedly against all potential participants in the waste
processing business, while benefiting only the chosen opera-
tor of the transfer facility.
I believe this distinction has more doctrinal significance
than the majority acknowledges. In considering state
health and safety regulations such as Local Law 9, we have
consistently recognized that the fact that interests within
the regulating jurisdiction are equally affected by the chal-
lenged enactment counsels against a finding of discrimina-
tion. And for good reason. The existence of substantial
in-state interests harmed by a regulation is "a powerful
safeguard" against legislative discrimination. Minnesota v.
Clover Leaf Creamery Co., 449 U. S. 456, 473, n. 17 (1981).
The Court generally defers to health and safety regulations
because "their burden usually falls on local economic inter-
ests as well as other States' economic interests, thus insuring
that a State's own political processes will serve as a check
against unduly burdensome regulations." Raymond Motor
Transp., Inc. v. Rice, 434 U. S. 429, 444, n. 18 (1978). See
also Kassel v. Consolidated Freightways Corp. of Del., 450
U. S. 662, 675 (1981) (same). Thus, while there is no bright
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Cite as: 511 U. S. 383 (1994) 405
O'Connor, J., concurring in judgment
line separating those enactments which are virtually per se
invalid and those which are not, the fact that in-town com-
petitors of the transfer facility are equally burdened by
Local Law 9 leads me to conclude that Local Law 9 does not
discriminate against interstate commerce.
II
That the ordinance does not discriminate against inter-
state commerce does not, however, end the Commerce
Clause inquiry. Even a nondiscriminatory regulation may
nonetheless impose an excessive burden on interstate trade
when considered in relation to the local benefits conferred.
See Brown-Forman Distillers, 476 U. S., at 579. Indeed, we
have long recognized that "a burden imposed by a State upon
interstate commerce is not to be sustained simply because
the statute imposing it applies alike to . . . the people of the
State enacting such statute." Brimmer v. Rebman, 138
U. S. 78, 83 (1891) (internal quotation marks and citation
omitted). Moreover, "the extent of the burden that will be
tolerated will of course depend on the nature of the local
interest involved, and on whether it could be promoted as
well with a lesser impact on interstate activities." Pike, 397
U. S., at 142. Judged against these standards, Local Law
9 fails.
The local interest in proper disposal of waste is obviously
significant. But this interest could be achieved by simply
requiring that all waste disposed of in the town be properly
processed somewhere. For example, the town could ensure
proper processing by setting specific standards with which
all town processors must comply.
In fact, however, the town's purpose is narrower than
merely ensuring proper disposal. Local Law 9 is intended
to ensure the financial viability of the transfer facility. I
agree with the majority that this purpose can be achieved
by other means that would have a less dramatic impact on
the flow of goods. For example, the town could finance the
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406 C & A CARBONE, INC. v. CLARKSTOWN
O'Connor, J., concurring in judgment
project by imposing taxes, by issuing municipal bonds, or
even by lowering its price for processing to a level competi-
tive with other waste processing facilities. But by requiring
that all waste be processed at the town's facility, the ordi-
nance "squelches competition in the waste-processing service
altogether, leaving no room for investment from outside."
Ante, at 392.
In addition, " `[t]he practical effect of [Local Law 9] must
be evaluated not only by considering the consequences of the
statute itself, but also by considering how the challenged
statute may interact with the legitimate regulatory regimes
of the other States and what effect would arise if not one, but
many or every, [jurisdiction] adopted similar legislation.' "
Wyoming v. Oklahoma, 502 U. S., at 453Â454 (quoting Healy
v. Beer Institute, 491 U. S. 324, 336 (1989)). This is not a
hypothetical inquiry. Over 20 States have enacted statutes
authorizing local governments to adopt flow control laws.*
If the localities in these States impose the type of restriction
on the movement of waste that Clarkstown has adopted, the
free movement of solid waste in the stream of commerce will
be severely impaired. Indeed, pervasive flow control would
result in the type of balkanization the Clause is primarily
intended to prevent. See H. P. Hood & Sons, 336 U. S., at
537Â538.
*Colo. Rev. Stat. § 30Â20Â107 (Supp. 1993); Conn. Gen. Stat. § 22aÂ220a
(1993); Del. Code Ann., Tit. 7, § 6406(31) (1991); Fla. Stat. § 403.713 (1991);
Haw. Rev. Stat. § 340AÂ3(a) (1985); Ind. Code §§ 36Â9Â31Â3 and Â4 (1993);
Iowa Code § 28G.4 (1987); La. Rev. Stat. Ann. § 30:2307(9) (West 1989); Me.
Rev. Stat. Ann., Tit. 38, § 1304ÂB(2) (1964); Minn. Stat. § 115A.80 (1992);
Miss. Code Ann. § 17Â17Â319 (Supp. 1993); Mo. Rev. Stat. § 260.202 (Supp.
1993); N. J. Stat. Ann. §§ 13.1EÂ22, 48:13AÂ5 (West 1991 and Supp. 1993);
N. C. Gen. Stat. § 130AÂ294 (1992); N. D. Cent. Code §§ 23Â29Â06(6) and
(8) (Supp. 1993); Ore. Rev. Stat. §§ 268.317(3) and (4) (1991); Pa. Stat. Ann.,
Tit. 53, § 4000.303(e) (Purdon Supp. 1993); R. I. Gen. Laws § 23Â19Â10(40)
(1956); Tenn. Code Ann. § 68Â211Â814 (Supp. 1993); Vt. Stat. Ann., Tit. 24,
§ 2203b (1992); Va. Code Ann. § 15.1Â28.01 (Supp. 1993).
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Cite as: 511 U. S. 383 (1994) 407
O'Connor, J., concurring in judgment
Given that many jurisdictions are contemplating or enact-
ing flow control, the potential for conflicts is high. For ex-
ample, in the State of New Jersey, just south of Clarkstown,
local waste may be removed from the State for the sorting
of recyclables "as long as the residual solid waste is returned
to New Jersey." Brief for New Jersey as Amicus Curiae 5.
Under Local Law 9, however, if petitioners bring waste from
New Jersey for recycling at their Clarkstown operation, the
residual waste may not be returned to New Jersey, but must
be transported to Clarkstown's transfer facility. As a con-
sequence, operations like petitioners' cannot comply with
the requirements of both jurisdictions. Nondiscriminatory
state or local laws which actually conflict with the enact-
ments of other States are constitutionally infirm if they
burden interstate commerce. See Bibb v. Navajo Freight
Lines, Inc., 359 U. S. 520, 526Â530 (1959) (unconstitutional for
Illinois to require truck mudguards when that requirement
conflicts with the requirements of other States); Southern
Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 773Â774
(1945) (same). The increasing number of flow control re-
gimes virtually ensures some inconsistency between juris-
dictions, with the effect of eliminating the movement of
waste between jurisdictions. I therefore conclude that the
burden Local Law 9 imposes on interstate commerce is
excessive in relation to Clarkstown's interest in ensuring
a fixed supply of waste to supply its project.
III
Although this Court can-and often does-enforce the
dormant aspect of the Commerce Clause, the Clause is pri-
marily a grant of congressional authority to regulate com-
merce among the States. Amicus National Association of
Bond Lawyers (NABL) argues that the flow control ordi-
nance in this case has been authorized by Congress. Given
the residual nature of our authority under the Clause, and
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408 C & A CARBONE, INC. v. CLARKSTOWN
O'Connor, J., concurring in judgment
because the argument that Congress has in fact authorized
flow control is substantial, I think it appropriate to address
it directly.
Congress must be "unmistakably clear" before we will con-
clude that it intended to permit state regulation which would
otherwise violate the dormant Commerce Clause. South-
Central Timber, 467 U. S., at 91 (plurality opinion). See also
Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 960
(1982) (finding consent only where "Congress' intent and pol-
icy to sustain state legislation from attack under the Com-
merce Clause was expressly stated") (citations and internal
quotation marks omitted). The State or locality has the
burden of demonstrating this intent. Wyoming v. Okla-
homa, 502 U. S., at 458.
Amicus NABL argues that Subchapter IV of the Resource
Conservation and Recovery Act of 1976 (RCRA), 90 Stat.
2813, as amended, 42 U. S. C. § 6941 et seq., and its amend-
ments, remove the constitutional constraints on local imple-
mentation of flow control. RCRA is a sweeping statute in-
tended to regulate solid waste from cradle to grave. In
addition to providing specific federal standards for the
management of solid waste, RCRA Subchapter IV governs
"State or Regional Solid Waste Plans." Among the objec-
tives of the subchapter is to "assist in developing and encour-
aging methods for the disposal of solid waste which are envi-
ronmentally sound"; this is to be accomplished by federal
"assistance to States or regional authorities for comprehen-
sive planning pursuant to Federal guidelines." § 6941.
Under RCRA, States are to submit solid waste manage-
ment plans that "prohibit the establishment of new open
dumps within the State," and ensure that solid waste will be
"utilized for resource recovery or . . . disposed of in sanitary
landfills . . . or otherwise disposed of in an environmentally
sound manner." § 6943(a)(2). The plans must also ensure
that state and local governments not be "prohibited under
State or local law from negotiating and entering into long-
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Cite as: 511 U. S. 383 (1994) 409
O'Connor, J., concurring in judgment
term contracts for the supply of solid waste to resource re-
covery facilities [or] from entering into long-term contracts
for the operation of such facilities." § 6943(a)(5).
Amicus also points to a statement in a House Report ad-
dressing § 6943(a)(5), a statement evincing some concern
with flow control:
"This prohibition [on state or local laws prohibiting
long-term contracts] is not to be construed to affect state
planning which may require all discarded materials to
be transported to a particular location. . . ." H. R. Rep.
No. 94Â1491, p. 34 (1976) (emphasis added).
Finally, in the Solid Waste Disposal Act Amendments of
1980, Congress authorized the Environmental Protection
Agency (EPA) to "provide technical assistance to States [and
local governments] to assist in the removal or modification
of legal, institutional, and economic impediments which have
the effect of impeding the development of systems and facili-
ties [for resource recovery]." § 6948(d)(3). Among the ob-
stacles to effective resource recovery are "impediments to
institutional arrangements necessary to undertake projects
. . . including the creation of special districts, authorities,
or corporations where necessary having the power to secure
the supply of waste of a project." § 6948(d)(3)(C) (emphasis
added).
I agree with amicus NABL that these references indicate
that Congress expected local governments to implement
some form of flow control. Nonetheless, they neither indi-
vidually nor cumulatively rise to the level of the "explicit"
authorization required by our dormant Commerce Clause de-
cisions. First, the primary focus of the references is on legal
impediments imposed as a result of state-not federal-law.
In addition, the reference to local authority to "secure the
supply of waste" is contained in § 6948(d)(3)(C), which is a
delegation not to the States but to EPA of authority to assist
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410 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
local government in solving waste supply problems. EPA
has stated in its implementing regulations that the "State
plan should provide for substate cooperation and policies for
free and unrestricted movement of solid and hazardous waste
across State and local boundaries." 40 CFR § 256.42(h)
(1993). And while the House Report seems to contemplate
that municipalities may require waste to be brought to a par-
ticular location, this stronger language is not reflected in the
text of the statute. Cf. United States v. Nordic Village,
Inc., 503 U. S. 30, 37 (1992) (for waiver of sovereign immu-
nity, "[i]f clarity does not exist [in the text], it cannot be
supplied by a committee report"); Dellmuth v. Muth, 491
U. S. 223, 230 (1989) (same). In short, these isolated refer-
ences do not satisfy our requirement of an explicit statu-
tory authorization.
It is within Congress' power to authorize local imposition
of flow control. Should Congress revisit this area, and enact
legislation providing a clear indication that it intends States
and localities to implement flow control, we will, of course,
defer to that legislative judgment. Until then, however,
Local Law 9 cannot survive constitutional scrutiny. Accord-
ingly, I concur in the judgment of the Court.
Justice Souter, with whom The Chief Justice and
Justice Blackmun join, dissenting.
The majority may invoke "well-settled principles of our
Commerce Clause jurisprudence," ante, at 386, but it does
so to strike down an ordinance unlike anything this Court has
ever invalidated. Previous cases have held that the "nega-
tive" or "dormant" aspect of the Commerce Clause renders
state or local legislation unconstitutional when it discrimi-
nates against out-of-state or out-of-town businesses such as
those that pasteurize milk, hull shrimp, or mill lumber, and
the majority relies on these cases because of what they have
in common with this one: out-of-state processors are ex-
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Souter, J., dissenting
cluded from the local market (here, from the market for trash
processing services). What the majority ignores, however,
are the differences between our local processing cases and
this one: the exclusion worked by Clarkstown's Local Law 9
bestows no benefit on a class of local private actors, but in-
stead directly aids the government in satisfying a traditional
governmental responsibility. The law does not differentiate
between all local and all out-of-town providers of a service,
but instead between the one entity responsible for ensuring
that the job gets done and all other enterprises, regardless
of their location. The ordinance thus falls outside that class
of tariff or protectionist measures that the Commerce Clause
has traditionally been thought to bar States from enacting
against each other, and when the majority subsumes the or-
dinance within the class of laws this Court has struck down
as facially discriminatory (and so avails itself of our "virtu-
ally per se rule" against such statutes, see Philadelphia v.
New Jersey, 437 U. S. 617, 624 (1978)), the majority is in fact
greatly extending the Clause's dormant reach.
There are, however, good and sufficient reasons against
expanding the Commerce Clause's inherent capacity to
trump exercises of state authority such as the ordinance at
issue here. There is no indication in the record that any
out-of-state trash processor has been harmed, or that the
interstate movement or disposition of trash will be affected
one whit. To the degree Local Law 9 affects the market
for trash processing services, it does so only by subjecting
Clarkstown residents and businesses to burdens far different
from the burdens of local favoritism that dormant Commerce
Clause jurisprudence seeks to root out. The town has found
a way to finance a public improvement, not by transferring
its cost to out-of-state economic interests, but by spreading
it among the local generators of trash, an equitable result
with tendencies that should not disturb the Commerce
Clause and should not be disturbed by us.
511US2 Unit: $U48 [11-04-99 07:37:53] PAGES PGT: OPIN
412 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
I
Prior to the 1970's, getting rid of the trash in Clarkstown
was just a matter of taking it to the local dump. But over
the course of that decade, state regulators cited the town for
dumping in violation of environmental laws, and in August
1989 the town entered into a consent decree with the New
York State Department of Environmental Conservation,
promising to close the landfill, clean up the environmental
damage, and make new arrangements to dispose of the
town's solid waste. Clarkstown agreed to build a "transfer
station" where the town's trash would be brought for sorting
out recyclable material and baling the nonrecyclable residue
for loading into long-haul trucks bound for out-of-state dis-
posal sites.
Instead of building the transfer station itself, Clarkstown
contracted with a private company to build the station
and run it for five years, after which the town could buy it
for $1. The town based the size of the facility on its best
estimate of the amount of trash local residents would gener-
ate and undertook to deliver that amount to the transfer sta-
tion each year, or to pay a substantial penalty to compensate
for any shortfall. This "put or pay" contract, together with
the right to charge an $81 "tipping" fee for each ton of waste
collected at the transfer station, was meant to assure the
company its return on investment.
Local Law 9, the ordinance at issue here, is an integral
part of this financing scheme. It prohibits individual trash
generators within the town from evading payment of the $81
tipping fee by requiring that all residential, commercial, and
industrial waste generated or collected within the town be
delivered to the transfer station. While Clarkstown resi-
dents may dump their waste at another locally licensed re-
cycling center, once such a private recycler culls out the re-
cyclable materials, it must dispose of any residue the same
way other Clarkstown residents do, by taking it to the town's
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Souter, J., dissenting
transfer station. Local Law 9, §§ 3.C, 3.D (1990).1 If out-
of-towners wish to dispose of their waste in Clarkstown or
recycle it there, they enter the town subject to the same
restrictions as Clarkstown residents, in being required to use
only the town-operated transfer station or a licensed recy-
cling center. § 5.A.
Petitioner C & A Carbone, Inc., operated a recycling cen-
ter in Clarkstown, according to a state permit authorizing it
to collect waste, separate out the recyclables for sale, and
dispose of the rest. In violation of Local Law 9, Carbone
failed to bring this nonrecyclable residue to the town trans-
fer station, but took it directly to out-of-state incinerators
and landfills, including some of the very same ones to which
the Clarkstown transfer station sends its trash. Appar-
ently, Carbone bypassed the Clarkstown facility on account
of the $81 tipping fee, saving Carbone money, but costing the
town thousands in lost revenue daily. In this resulting legal
action, Carbone's complaint is one that any Clarkstown trash
generator could have made: the town has created a monopoly
on trash processing services, and residents are no longer free
to provide these services for themselves or to contract for
them with others at a mutually agreeable price.
II
We are not called upon to judge the ultimate wisdom of
creating this local monopoly, but we are asked to say
whether Clarkstown's monopoly violates the Commerce
Clause, as long read by this Court to limit the power of state
and local governments to discriminate against interstate
commerce:
1 The ordinance has exceptions not at issue here for hazardous waste,
pathological waste, and sludge, and for source-separated recyclables,
which can be disposed of within or outside the town. Local Law 9, §§ 1,
3.C (1990).
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414 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
"[The] `negative' aspect of the Commerce Clause prohib-
its economic protectionism-that is, regulatory meas-
ures designed to benefit in-state economic interests by
burdening out-of-state competitors. Thus, state stat-
utes that clearly discriminate against interstate com-
merce are routinely struck down, unless the discrimina-
tion is demonstrably justified by a valid factor unrelated
to economic protectionism." New Energy Co. of Ind.
v. Limbach, 486 U. S. 269, 273Â274 (1988) (citations
omitted).
This limitation on the state and local power has been seen
implicit in the Commerce Clause because, as the majority
recognizes, the Framers sought to dampen regional jealous-
ies in general and, in particular, to eliminate retaliatory tar-
iffs, which had poisoned commercial relations under the Arti-
cles of Confederation. Ante, at 390. Laws that hoard for
local businesses the right to serve local markets or develop
local resources work to isolate States from each other and to
incite retaliation, since no State would stand by while an-
other advanced the economic interests of its own business
classes at the expense of its neighbors.
A
The majority argues that resolution of the issue before us
is controlled by a line of cases in which we have struck down
state or local laws that discriminate against out-of-state or
out-of-town providers of processing services. See ante, at
391Â392. With perhaps one exception,2 the laws invalidated
2 The arguable exception is Pike v. Bruce Church, Inc., 397 U. S. 137
(1970), where the Court invalidated an administrative order issued pursu-
ant to a facially neutral statute. While the order discriminated on its
face, prohibiting the interstate shipment of respondent's cantaloupes un-
less they were first packaged locally, the statute it sought to enforce
merely required that Arizona-grown cantaloupes advertise their State of
origin on each package. In Part III, I discuss the line of cases in which
we have struck down statutes that, although lacking explicit geographical
sorting mechanisms, are discriminatory in practical effect.
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Souter, J., dissenting
in those cases were patently discriminatory, differentiating
by their very terms between in-state and out-of-state (or
local and nonlocal) processors. One ordinance, for example,
forbad selling pasteurized milk " `unless the same shall have
been pasteurized and bottled . . . within a radius of five miles
from the central portion of the City of Madison . . . .' " 3
Dean Milk Co. v. Madison, 340 U. S. 349, 350, n. 1 (1951)
(quoting General Ordinances of the City of Madison § 7.21
(1949)). The other laws expressly discriminated against
commerce crossing state lines, placing these local processing
cases squarely within the larger class of cases in which this
Court has invalidated facially discriminatory legislation.4
As the majority recognizes, Local Law 9 shares two fea-
tures with these local processing cases. It regulates a proc-
essing service available in interstate commerce, i. e., the
sorting and baling of solid waste for disposal. And it does
so in a fashion that excludes out-of-town trash processors by
its very terms. These parallels between Local Law 9 and
the statutes previously invalidated confer initial plausibility
on the majority's classification of this case with those earlier
ones on processing, and they even bring this one within the
most general language of some of the earlier cases, abhorring
3 The area encompassed by this provision included all of Madison except
the runways of the municipal airport, plus a small amount of unincorpo-
rated land. See The Madison and Wisconsin Foundation, Map of the City
of Madison (1951).
4 See, e. g., Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334
(1992) (Alabama statute taxing hazardous waste not originating in State);
Wyoming v. Oklahoma, 502 U. S. 437 (1992) (Oklahoma statute requiring
power plants to burn at least 10 percent Oklahoma-mined coal); New En-
ergy Co. of Ind. v. Limbach, 486 U. S. 269 (1988) (Ohio statute awarding
tax credit for sales of ethanol only if it is produced in Ohio or in a State
that awards similar tax breaks for Ohio-produced ethanol); New England
Power Co. v. New Hampshire, 455 U. S. 331 (1982) (New Hampshire statute
prohibiting hydroelectric power from being sold out of State without per-
mission from the State's Public Utilities Commission); Hughes v. Okla-
homa, 441 U. S. 322 (1979) (Oklahoma law forbidding out-of-state sale of
natural minnows).
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416 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
the tendency of such statutes "to impose an artificial rigidity
on the economic pattern of the industry," Toomer v. Witsell,
334 U. S. 385, 403Â404 (1948).
B
There are, however, both analytical and practical differ-
ences between this and the earlier processing cases, differ-
ences the majority underestimates or overlooks but which, if
given their due, should prevent this case from being decided
the same way. First, the terms of Clarkstown's ordinance
favor a single processor, not the class of all such businesses
located in Clarkstown. Second, the one proprietor so fa-
vored is essentially an agent of the municipal government,
which (unlike Carbone or other private trash processors)
must ensure the removal of waste according to acceptable
standards of public health. Any discrimination worked by
Local Law 9 thus fails to produce the sort of entrepreneurial
favoritism we have previously defined and condemned as
protectionist.
1
The outstanding feature of the statutes or ordinances re-
viewed in the local processing cases is their distinction be-
tween two classes of private economic actors according to
location, favoring shrimp hullers within Louisiana, milk pas-
teurizers within five miles of the center of Madison, and so on.
See Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928);
Dean Milk Co. v. Madison, supra. Since nothing in these
local processing laws prevented a proliferation of local busi-
nesses within the State or town, the out-of-town processors
were not excluded as part and parcel of a general exclusion of
private firms from the market, but as a result of discrimination
among such firms according to geography alone. It was be-
cause of that discrimination in favor of local businesses, pre-
ferred at the expense of their out-of-town or out-of-state
competitors, that the Court struck down those local process-
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Souter, J., dissenting
ing laws 5 as classic examples of the economic protectionism
the dormant Commerce Clause jurisprudence aims to pre-
vent. In the words of one commentator summarizing our
case law, it is laws "adopted for the purpose of improving the
competitive position of local economic actors, just because
they are local, vis-a -vis their foreign competitors" that offend
the Commerce Clause. Regan, The Supreme Court and
State Protectionism: Making Sense of the Dormant Com-
merce Clause, 84 Mich. L. Rev. 1091, 1138 (1986). The Com-
merce Clause does not otherwise protect access to local
markets. Id., at 1128.6
5 See South-Central Timber Development, Inc. v. Wunnicke, 467 U. S.
82, 92 (1984) (quoting South Carolina Highway Dept. v. Barnwell Broth-
ers, Inc., 303 U. S. 177, 185, n. 2 (1938)) (danger lies in regulation whose
" `burden falls principally upon those without the state' "); Dean Milk Co.
v. Madison, 340 U. S. 349, 354 (1951) (in "erecting an economic barrier
protecting a major local industry against competition from without the
State, Madison plainly discriminates against interstate commerce. This
it cannot do . . ."); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 13
(1928) (statute unconstitutional because it "favor[s] the canning of the meat
and the manufacture of bran in Louisiana" instead of Biloxi); Minnesota
v. Barber, 136 U. S. 313, 323 (1890) (statute infirm because its necessary
result is "discrimination against the products and business of other States
in favor of the products and business of Minnesota"). See also Fort Grat-
iot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504
U. S. 353, 361 (1992) (statute infirm because it protects "local waste pro-
ducers . . . from competition from out-of-state waste producers who seek
to use local waste disposal areas"); Philadelphia v. New Jersey, 437 U. S.
617, 626Â627 (1978) (New Jersey "may not . . . discriminat[e] against arti-
cles of commerce coming from outside the State unless there is some rea-
son, apart from their origin, to treat them differently").
6 See also Smith, State Discriminations Against Interstate Commerce,
74 Calif. L. Rev. 1203, 1204, 1213 (1986) ("The nub of the matter is that
discriminatory regulations are almost invariably invalid, whereas nondis-
criminatory regulations are much more likely to survive"; "[a] regulation
is discriminatory if it imposes greater economic burdens on those outside
the state, to the economic advantage of those within"); L. Tribe, American
Constitutional Law 417 (2d ed. 1988) ("[T]he negative implications of the
commerce clause derive principally from a political theory of union, not
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418 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
The majority recognizes, but discounts, this difference be-
tween laws favoring all local actors and this law favoring a
single municipal one. According to the majority, "this dif-
ference just makes the protectionist effect of the ordinance
more acute" because outside investors cannot even build
competing facilities within Clarkstown. Ante, at 392. But
of course Clarkstown investors face the same prohibition,
which is to say that Local Law 9's exclusion of outside capi-
tal is part of a broader exclusion of private capital, not a
discrimination against out-of-state investors as such.7 Cf.
Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980)
(striking down statute prohibiting businesses owned by out-
of-state banks, bank holding companies, or trust companies
from providing investment advisory services). Thus, while
these differences may underscore the ordinance's anticom-
petitive effect, they substantially mitigate any protectionist
effect, for subjecting out-of-town investors and facilities to
the same constraints as local ones is not economic protec-
tionism. See New Energy Co. of Ind. v. Limbach, 486
U. S., at 273Â274.8
from an economic theory of free trade. The function of the clause is to
ensure national solidarity, not economic efficiency").
7 The record does not indicate whether local or out-of-state investors
own the private firm that built Clarkstown's transfer station for the
municipality.
8 In a potentially related argument, the majority says our case law sup-
ports the proposition that an "ordinance is no less discriminatory because
in-state or in-town processors are also covered by [its] prohibition."
Ante, at 391. If this statement is understood as doing away with the
distinction between laws that discriminate based on geography and those
that do not, authority for it is lacking. The majority supports its state-
ment by citing from a footnote in Dean Milk, that "[i]t is immaterial that
Wisconsin milk from outside the Madison area is subjected to the same
proscription as that moving in interstate commerce," 340 U. S., at 354, n. 4,
but that observation merely recognized that our dormant Commerce
Clause jurisprudence extends to municipalities as well as to States and
invalidates geographical restrictions phrased in miles as well as in terms
of political boundaries. This reading is confirmed by the fact that the
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Souter, J., dissenting
2
Nor is the monopolist created by Local Law 9 just another
private company successfully enlisting local government to
protect the jobs and profits of local citizens. While our pre-
vious local processing cases have barred discrimination in
markets served by private companies, Clarkstown's transfer
station is essentially a municipal facility, built and operated
under a contract with the municipality and soon to revert
entirely to municipal ownership.9 This, of course, is no mere
coincidence, since the facility performs a municipal function
that tradition as well as state and federal law recognize as
the domain of local government. Throughout the history of
this country, municipalities have taken responsibility for dis-
posing of local garbage to prevent noisome smells, obstruc-
tion of the streets, and threats to public health,10 and today
Dean Milk Court's only explanation for its statement was to cite a case
striking down a statute forbidding the selling of " `any fresh meats . . .
slaughtered one hundred miles or over from the place at which it is offered
for sale, until and except it has been inspected' " at a cost to its owner
of a penny per pound. Brimmer v. Rebman, 138 U. S. 78, 80 (1891) (quot-
ing Acts of Va. 1889Â1890, p. 63, ch. 80). That the majority here cites
also to Fort Gratiot Landfill v. Michigan Dept. of Natural Resources,
supra, may indicate that it reads Dean Milk the same way I do, but then
it cannot use the case to stand for the more radical proposition I quoted
above.
9 At the end of a 5-year term, during which the private contractor re-
ceives profits sufficient to induce it to provide the plant in the first place,
the town will presumably step into the contractor's shoes for the nominal
dollar. Such contracts, enlisting a private company to build, operate, and
then transfer to local government an expensive public improvement, en-
able municipalities to acquire public facilities without resorting to munici-
pal funds or credit.
10 For example, in 1764 the South Carolina Legislature established a
street commission for Charleston with the power "to remove all filth and
rubbish, to such proper place or places, in or near the said town, as they
. . . shall allot . . . ." Act of Aug. 10, 1764, ¶ 1. In New Amsterdam a
century earlier, "[t]he burgomasters and schepens ordained that all such
refuse be brought to dumping-grounds near the City Hall and the gallows
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420 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
78 percent of landfills receiving municipal solid waste are
owned by local governments. See U. S. Environmental Pro-
tection Agency, Resource Conservation and Recovery Act,
Subtitle D Study: Phase 1 Report, p. 4Â7 (Oct. 1986) (Table
4Â2). The National Government provides "technical and fi-
nancial assistance to States or regional authorities for com-
prehensive planning" with regard to the disposal of solid
waste, 42 U. S. C. § 6941, and the State of New York author-
izes local governments to prepare such management plans
for the proper disposal of all solid waste generated within
their jurisdictions, N. Y. Envir. Conserv. Law § 27Â0107 (Mc-
Kinney Supp. 1994). These general provisions underlie
Clarkstown's more specific obligation (under its consent de-
cree with the New York State Department of Environmental
Conservation) to establish a transfer station in place of the
old town dump, and it is to finance this transfer station that
Local Law 9 was passed.
The majority ignores this distinction between public and
private enterprise, equating Local Law 9's "hoard[ing]" of
solid waste for the municipal transfer station with the design
and effect of ordinances that restrict access to local markets
for the benefit of local private firms. Ante, at 392. But pri-
vate businesses, whether local or out of State, first serve the
nor to other designated places." M. Goodwin, Dutch and English on the
Hudson 105 (1977 ed.).
Indeed, some communities have employed flow control ordinances in
pursuit of these goals, ordinances this Court has twice upheld against con-
stitutional attack. See California Reduction Co. v. Sanitary Reduction
Works, 199 U. S. 306 (1905) (upholding against a takings challenge an ordi-
nance requiring that all garbage in San Francisco be disposed of, for a fee,
at facilities belonging to F. E. Sharon); Gardner v. Michigan, 199 U. S. 325
(1905) (upholding against due process challenge an ordinance requiring
that all garbage in Detroit be collected and disposed of by a single city
contractor). It is not mere inattention that has left these fine old cases
free from subsequent aspersion, for they illustrate that even at the height
of the Lochner era the Court recognized that for municipalities struggling
to abate their garbage problems, the Constitution did not require unim-
peded private enterprise.
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Souter, J., dissenting
private interests of their owners, and there is therefore only
rarely a reason other than economic protectionism for fa-
voring local businesses over their out-of-town competitors.
The local government itself occupies a very different market
position, however, being the one entity that enters the mar-
ket to serve the public interest of local citizens quite apart
from private interest in private gain. Reasons other than
economic protectionism are accordingly more likely to ex-
plain the design and effect of an ordinance that favors a pub-
lic facility. The facility as constructed might, for example,
be one that private economic actors, left to their own devices,
would not have built, but which the locality needs in order
to abate (or guarantee against creating) a public nuisance.
There is some evidence in this case that this is so, as the
New York State Department of Environmental Conservation
would have had no reason to insist that Clarkstown build
its own transfer station if the private market had furnished
adequate processing capacity to meet Clarkstown's needs.
An ordinance that favors a municipal facility, in any event, is
one that favors the public sector, and if "we continue to rec-
ognize that the States occupy a special and specific position
in our constitutional system and that the scope of Congress'
authority under the Commerce Clause must reflect that posi-
tion," Garcia v. San Antonio Metropolitan Transit Author-
ity, 469 U. S. 528, 556 (1985), then surely this Court's dor-
mant Commerce Clause jurisprudence must itself see that
favoring state-sponsored facilities differs from discriminat-
ing among private economic actors, and is much less likely
to be protectionist.
3
Having established that Local Law 9 does not serve the
competitive class identified in previous local processing cases
and that Clarkstown differs correspondingly from other local
processors, we must ask whether these differences justify a
standard of dormant Commerce Clause review that differs
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422 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
from the virtually fatal scrutiny imposed in those earlier
cases. I believe they do.
The justification for subjecting the local processing laws
and the broader class of clearly discriminatory commercial
regulation to near-fatal scrutiny is the virtual certainty that
such laws, at least in their discriminatory aspect, serve no
legitimate, nonprotectionist purpose. See Philadelphia v.
New Jersey, 437 U. S., at 624 ("[W]here simple economic pro-
tectionism is effected by state legislation, a virtually per se
rule of invalidity has been erected").11 Whether we find
"the evil of protectionism," id., at 626, in the clear import of
specific statutory provisions or in the legislature's ultimate
purpose, the discriminatory scheme is almost always de-
signed either to favor local industry, as such, or to achieve
some other goal while exporting a disproportionate share of
the burden of attaining it, which is merely a subtler form of
local favoritism, id., at 626Â628.
On the other hand, in a market served by a municipal facil-
ity, a law that favors that single facility over all others is
a law that favors the public sector over all private-sector
processors, whether local or out of State. Because the favor
does not go to local private competitors of out-of-state firms,
out-of-state governments will at the least lack a motive to
favor their own firms in order to equalize the positions of
private competitors. While a preference in favor of the gov-
ernment may incidentally function as local favoritism as well,
a more particularized enquiry is necessary before a court can
say whether such a law does in fact smack too strongly of
economic protectionism. If Local Law 9 is to be struck
down, in other words, it must be under that test most readily
11 For the rare occasion when discriminatory laws are the best vehicle
for furthering a legitimate state interest, Maine v. Taylor, 477 U. S. 131
(1986), provides an exception, but we need not address that exception here
because this ordinance is not subject to the presumption of unconstitution-
ality appropriate for protectionist legislation.
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Souter, J., dissenting
identified with Pike v. Bruce Church, Inc., 397 U. S. 137
(1970).
III
We have said that when legislation that does not fa-
cially discriminate "comes into conflict with the Commerce
Clause's overriding requirement of a national `common mar-
ket,' we are confronted with the task of effecting an accom-
modation of the competing national and local interests."
Hunt v. Washington State Apple Advertising Comm'n, 432
U. S. 333, 350 (1977). Although this analysis of competing
interests has sometimes been called a "balancing test," it is
not so much an open-ended weighing of an ordinance's pros
and cons, as an assessment of whether an ordinance discrimi-
nates in practice or otherwise unjustifiably operates to iso-
late a State's economy from the national common market. If
a statute or local ordinance serves a legitimate local interest
and does not patently discriminate, "it will be upheld unless
the burden imposed on [interstate] commerce is clearly ex-
cessive in relation to the putative local benefits." Pike v.
Bruce Church, Inc., supra, at 142. The analysis is similar
to, but softer around the edges than,12 the test we employ in
cases of overt discrimination. "[T]he question becomes one
of degree," and its answer depends on the nature of the bur-
den on interstate commerce, the nature of the local interest,
and the availability of alternative methods for advancing the
12 Where discrimination is not patent on the face of a statute, the party
challenging its constitutionality has a more difficult task, but appropri-
ately so because the danger posed by such laws is generally smaller. Dis-
crimination that is not patent or purposeful "in effect may be substantially
less likely to provoke retaliation by other states . . . . In the words of
Justice Holmes, `even a dog distinguishes between being stumbled over
and being kicked.' " Smith, 74 Calif. L. Rev., at 1251 (quoting O. W.
Holmes, The Common Law 3 (1881)). See also Regan, The Supreme
Court and State Protectionism: Making Sense of the Dormant Commerce
Clause, 84 Mich. L. Rev. 1091, 1133Â1134 (1986).
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424 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
local interest without hindering the national one. 397 U. S.,
at 142, 145.
The primary burden Carbone attributes to flow control or-
dinances such as Local Law 9 is that they "prevent trash
from being sent to the most cost-effective disposal facilities,
and insulate the designated facility from all price competi-
tion." Brief for Petitioners 32. In this case, customers
must pay $11 per ton more for dumping trash at the Clarks-
town transfer station than they would pay at Carbone's facil-
ity, although this dollar figure presumably overstates the
burden by disguising some differences between the two: ac-
cording to its state permit, 90 percent of Carbone's waste
stream comprises recyclable cardboard, while the Clarks-
town facility takes all manner of less valuable waste, which
it treats with state-of-the-art environmental technology not
employed at Carbone's more rudimentary plant.
Fortunately, the dollar cost of the burden need not be pin-
pointed, its nature being more significant than its economic
extent. When we look to its nature, it should be clear that
the monopolistic character of Local Law 9's effects is not
itself suspicious for purposes of the Commerce Clause. Al-
though the right to compete is a hallmark of the American
economy and local monopolies are subject to challenge under
the century-old Sherman Act,13 the bar to monopolies (or,
rather, the authority to dismember and penalize them) arises
from a statutory, not a constitutional, mandate. No more
than the Fourteenth Amendment, the Commerce Clause
"does not enact Mr. Herbert Spencer's Social Statics . . . [or]
13 See 15 U. S. C. §§ 1 and 2. Indeed, other flow control ordinances have
been challenged under the Sherman Act, although without success where
municipal defendants have availed themselves of the state action exception
to the antitrust laws. See Hybud Equipment Corp. v. Akron, 742 F. 2d
949 (CA6 1984); Central Iowa Refuse Systems, Inc. v. Des Moines Metro-
politan Solid Waste Agency, 715 F. 2d 419 (CA8 1983). That the State of
New York's Holland-Gromack Law, 1991 N. Y. Laws, ch. 569 (McKinney),
authorizes Clarkstown's flow control ordinance may explain why no Sher-
man Act claim was made here.
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Souter, J., dissenting
embody a particular economic theory, whether of paternal-
ism . . . or of laissez faire." Lochner v. New York, 198 U. S.
45, 75 (1905) (Holmes, J., dissenting). The dormant Com-
merce Clause does not "protec[t] the particular structure or
methods of operation in a[ny] . . . market." Exxon Corp. v.
Governor of Maryland, 437 U. S. 117, 127 (1978). The only
right to compete that it protects is the right to compete on
terms independent of one's location.
While the monopolistic nature of the burden may be disre-
garded, any geographically discriminatory elements must be
assessed with care. We have already observed that there is
no geographically based selection among private firms, and
it is clear from the face of the ordinance that nothing hinges
on the source of trash that enters Clarkstown or upon the
destination of the processed waste that leaves the transfer
station. There is, to be sure, an incidental local economic
benefit, for the need to process Clarkstown's trash in Clarks-
town will create local jobs. But this local boon is mitigated
by another feature of the ordinance, in that it finances what-
ever benefits it confers on the town from the pockets of the
very citizens who passed it into law. On the reasonable as-
sumption that no one can avoid producing some trash, every
resident of Clarkstown must bear a portion of the burden
Local Law 9 imposes to support the municipal monopoly, an
uncharacteristic feature of statutes claimed to violate the
Commerce Clause.
By way of contrast, most of the local processing statutes
we have previously invalidated imposed requirements that
made local goods more expensive as they headed into the
national market, so that out-of-state economies bore the bulk
of any burden. Requiring that Alaskan timber be milled in
that State prior to export would add the value of the milling
service to the Alaskan economy at the expense of some other
State, but would not burden the Alaskans who adopted such
a law. Cf. South-Central Timber Development, Inc. v. Wun-
nicke, 467 U. S. 82, 92 (1984). Similarly, South Carolinians
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426 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
would retain the financial benefit of a local processing re-
quirement for shrimp without paying anything more them-
selves. Cf. Toomer v. Witsell, 334 U. S., at 403.14 And in
Philadelphia v. New Jersey, 437 U. S., at 628, the State at-
tempted to export the burden of conserving its scarce landfill
space by barring the importation of out-of-state waste. See
also Brown-Forman Distillers Corp. v. New York State
Liquor Authority, 476 U. S. 573, 580 (1986) (price reduction
for in-state consumers of alcoholic beverages procured at the
expense of out-of-state consumers). Courts step in through
the dormant Commerce Clause to prevent such exports be-
cause legislative action imposing a burden " `principally upon
those without the state . . . is not likely to be subjected to
those political restraints which are normally exerted on leg-
islation where it affects adversely some interests within the
state.' " South-Central Timber, supra, at 92 (quoting South
Carolina Highway Dept. v. Barnwell Brothers, Inc., 303
U. S. 177, 185, n. 2 (1938)); see also Southern Pacific Co. v.
Arizona ex rel. Sullivan, 325 U. S. 761, 767Â768, n. 2 (1945).
Here, in contrast, every voter in Clarkstown pays to fund
the benefits of flow control, however high the tipping fee is
set. Since, indeed, the mandate to use the town facility will
only make a difference when the tipping fee raises the cost
of using the facility above what the market would otherwise
set, the Clarkstown voters are funding their benefit by as-
sessing themselves and paying an economic penalty. Any
whiff of economic protectionism is far from obvious.15
14 I recognize that the economics differ if a State does not enjoy a sig-
nificant price advantage over its neighbors and thus cannot pass along the
added costs associated with its local processing requirement, but such
States are unlikely to adopt local processing requirements for precisely
that reason.
15 This argument does not alone foreclose the possibility of economic pro-
tectionism in this case, as the ordinance could burden, in addition to the
residents of Clarkstown, out-of-town trash processors who would have
sought Clarkstown's business in the absence of flow control. But as we
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Souter, J., dissenting
An examination of the record confirms skepticism that en-
forcement of the ordinance portends a Commerce Clause vio-
lation, for it shows that the burden falls entirely on Clarks-
town residents. If the record contained evidence that
Clarkstown's ordinance burdened out-of-town providers of
garbage sorting and baling services, rather than just the
local business that is a party in this case, that fact might be
significant. But petitioners have presented no evidence that
there are transfer stations outside Clarkstown capable of
handling the town's business, and the record is devoid of evi-
dence that such enterprises have lost business as a result of
this ordinance. Cf. Pike v. Bruce Church, Inc., 397 U. S., at
145 ("The nature of th[e] burden is, constitutionally, more
significant than its extent" and the danger to be avoided is
that of laws that hoard business for local residents). Simi-
larly, if the record supported an inference that above-market
pricing at the Clarkstown transfer station caused less trash
to flow to out-of-state landfills and incinerators, that, too,
might have constitutional significance. There is, however,
no evidence of any disruption in the flow of trash from curb-
sides in Clarkstown to landfills in Florida and Ohio.16 Here
will see, the absence of evidence of injury to such processors eliminates
that argument here.
16 In this context, note that the conflict Justice O'Connor hypothesizes
between multiple flow-control laws is not one that occurs in this case. If
Carbone was processing trash from New Jersey, it was making no attempt
to return the nonrecycled residue there. And theoretically, Carbone
could have complied with both flow control ordinances, as Clarkstown's
law required local processing, while New Jersey's required only that any
postprocessing residue be returned to the State. But more fundamen-
tally, even if a nondiscriminatory ordinance conflicts with the law of some
other jurisdiction, that fact would not, in itself, lead to its invalidation.
In the cases Justice O'Connor cites, the statutes at issue served no legit-
imate state interest that weighed against the burden on interstate com-
merce their conflicts created. See Bibb v. Navajo Freight Lines, Inc., 359
U. S. 520, 525 (1959) (mudguards Illinois required on trucks possess no
safety advantage but create new hazards); Southern Pacific Co. v. Arizona
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428 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
we can confidently say that the only business lost as a result
of this ordinance is business lost in Clarkstown, as customers
who had used Carbone's facility drift away in response to
any higher fees Carbone may have to institute to afford its
share of city services; but business lost in Clarkstown as a
result of a Clarkstown ordinance is not a burden that offends
the Constitution.
This skepticism that protectionism is afoot here is con-
firmed again when we examine the governmental interests
apparently served by the local law. As mentioned already,
the State and its municipalities need prompt, sanitary trash
processing, which is imperative whether or not the private
market sees fit to serve this need at an affordable price and
to continue doing so dependably into the future. The state
and local governments also have a substantial interest in the
flow-control feature to minimize the risk of financing this
service, for while there may be an element of exaggeration
in the statement that "[r]esource recovery facilities cannot
be built unless they are guaranteed a supply of discarded
material," H. R. Rep. No. 94Â1491, p. 10 (1976), there is no
question that a "put or pay" contract of the type Clarkstown
signed will be a significant inducement to accept municipal
responsibility to guarantee efficiency and sanitation in trash
processing. Waste disposal with minimal environmental
damage requires serious capital investment, id., at 34, and
there are limits on any municipality's ability to incur debt or
ex rel. Sullivan, 325 U. S. 761, 779 (1945) (Arizona statute limiting length
of trains "affords at most slight and dubious advantage, if any" with re-
spect to safety). Here, in contrast, we will see that the municipality's
interests are substantial and that the alternative means for advancing
them are less desirable and potentially as disruptive of interstate com-
merce. Finally, in any conflict between flow control that reaches only
waste within its jurisdiction and flow control that reaches beyond (requir-
ing waste originating locally to be returned after processing elsewhere),
it may be the latter that should give way for regulating conduct occuring
wholly out of State. See Brown-Forman Distillers Corp. v. New York
State Liquor Authority, 476 U. S. 573, 580Â582 (1986).
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Souter, J., dissenting
to finance facilities out of tax revenues. Protection of the
public fisc is a legitimate local benefit directly advanced by
the ordinance and quite unlike the generalized advantage to
local businesses that we have condemned as protectionist in
the past. See Regan, 84 Mich. L. Rev., at 1120 ("[R]aising
revenue for the state treasury is a federally cognizable bene-
fit"; protectionism is not); cf. Fort Gratiot Sanitary Landfill,
Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353,
357 (1992) (law protects private, not publicly owned, waste
disposal capacity for domestic use); Philadelphia v. New
Jersey, 437 U. S., at 627, n. 6 (expressing no opinion about
State's power to favor its own residents in granting access
to state-owned resources).17
Moreover, flow control offers an additional benefit that
could not be gained by financing through a subsidy derived
from general tax revenues, in spreading the cost of the facil-
ity among all Clarkstown residents who generate trash.
The ordinance does, of course, protect taxpayers, including
those who already support the transfer station by patroniz-
ing it, from ending up with the tab for making provision for
large-volume trash producers like Carbone, who would rely
on the municipal facility when that was advantageous but
opt out whenever the transfer station's price rose above the
market price. In proportioning each resident's burden to
the amount of trash generated, the ordinance has the added
virtue of providing a direct and measurable deterrent to the
generation of unnecessary waste in the first place. And in
any event it is far from clear that the alternative to flow
control (i. e., subsidies from general tax revenues or munici-
pal bonds) would be less disruptive of interstate commerce
17 The Court did strike down California's depression-era ban on the "im-
portation" of indigent laborers despite the State's protestations that the
statute protected the public fisc from the strain of additional outlays for
poor relief, but the Court stressed the statute's direct effect on immigrants
instead of relying on any indirect effects on the public purse. See Ed-
wards v. California, 314 U. S. 160, 174 (1941).
511us2$48M 11-08-97 20:01:05 PAGES OPINPGT
430 C & A CARBONE, INC. v. CLARKSTOWN
Souter, J., dissenting
than flow control, since a subsidized competitor can effec-
tively squelch competition by underbidding it.
There is, in short, no evidence that Local Law 9 causes
discrimination against out-of-town processors, because there
is no evidence in the record that such processors have lost
business as a result of it. Instead, we know only that the
ordinance causes the local residents who adopted it to pay
more for trash disposal services. But local burdens are not
the focus of the dormant Commerce Clause, and this imposi-
tion is in any event readily justified by the ordinance's legiti-
mate benefits in reliable and sanitary trash processing.
* * *
The Commerce Clause was not passed to save the citizens
of Clarkstown from themselves. It should not be wielded to
prevent them from attacking their local garbage problems
with an ordinance that does not discriminate between local
and out-of-town participants in the private market for trash
disposal services and that is not protectionist in its purpose
or effect. Local Law 9 conveys a privilege on the municipal
government alone, the only market participant that bears
responsibility for ensuring that adequate trash processing
services continue to be available to Clarkstown residents.
Because the Court's decision today is neither compelled by
our local processing cases nor consistent with this Court's
reason for inferring a dormant or negative aspect to the
Commerce Clause in the first place, I respectfully dissent.
511us2$49Z 11-08-97 20:03:44 PAGES OPINPGT
OCTOBER TERM, 1993 431
Syllabus
SECURITY SERVICES, INC. v. KMART CORP.
certiorari to the united states court of appeals for
the third circuit
No. 93Â284. Argued February 28, 1994-Decided May 16, 1994
The mileage rate tariff that petitioner motor carrier filed with the Inter-
state Commerce Commission (ICC) did not list distances for calculating
charges for shipments, but instead relied upon a Household Goods Carri-
ers' Bureau (HGCB) Mileage Guide for its distance component. The
Mileage Guide states that it may not be used to determine rates unless
the carrier is shown as a "participant" in the Guide. Participants are
listed in a separate HGCB tariff filed with the ICC. When petitioner
failed to pay its fees, HGCB canceled petitioner's participation by sup-
plementing the latter tariff. Sometime later, petitioner contracted to
transport respondent shipper's goods at rates below its filed tariff rates.
Petitioner subsequently filed for Chapter 11 bankruptcy and, as debtor-
in-possession, asserted that respondent was liable under the Interstate
Commerce Act's filed rate doctrine for undercharges based on the differ-
ence between the contract and tariff rates. Respondent refused to pay.
Petitioner sued. The District Court granted summary judgment for re-
spondent, and the Court of Appeals affirmed, concluding that the filed
tariff could not support an undercharge claim because it was void under
ICC regulations requiring participation in mileage guides referred to in
a carrier's tariff; that the regulations' retroactive voiding of the tariff
was permissible under ICC v. American Trucking Assns., Inc., 467 U. S.
354; and that nonparticipation in the Guide was not a mere technical
defect excused by petitioner's substantial compliance with the filed
rate rule.
Held: A motor carrier in bankruptcy may not rely on tariff rates it has
filed with the ICC, but which are void for nonparticipation under ICC
regulations, as a basis for recovering undercharges. Pp. 435Â444.
(a) A bankruptcy trustee for a defunct carrier or the carrier itself as
a debtor-in-possession is entitled to rely on the filed rate doctrine, which
mandates that carriers charge and be paid the rates filed in a tariff, to
collect for undercharges based on effective, filed rates. Maislin Indus-
tries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116. The ICC's void-
for-nonparticipation regulation, however, invalidates a mileage-based
tariff once cancellation of the carrier's participation in an agent's dis-
tance guide is published, as it was here. Such a tariff is incomplete and
511us2$49Z 11-08-97 20:03:44 PAGES OPINPGT
432 SECURITY SERVICES, INC. v. KMART CORP.
Syllabus
ceases to satisfy the fundamental purpose of tariffs: to disclose the
freight charge due to the carrier. Petitioner may not recover for un-
dercharges based on filed, but void, rates lacking an essential element.
Pp. 435Â440.
(b) The rule of American Trucking, supra, at 361Â364, is not apposite
here, for the void-for-nonparticipation regulation does not apply retro-
actively. Under the regulation, petitioner's tariff reference to the
HGCB Mileage Guide became void as a matter of law and its tariff
filings incomplete on their face when HGCB canceled its participation
in the Guide by filing a supplemental tariff. The transactions with
respondent occurred after that date. Pp. 440Â442.
(c) Also inapplicable is the "technical defect" rule. See, e. g.,
Berwind-White Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S.
371, 375. A tariff like petitioner's that refers to another tariff for es-
sential information, which tariff in turn states that the carrier may not
refer to it, does not provide the "adequate notice" of rates to be charged
that the Court's "technical defect" cases require. Pp. 442Â443.
996 F. 2d 1516, affirmed.
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Blackmun, Stevens, O'Connor, Scalia, and Kennedy, JJ.,
joined. Stevens, J., filed a concurring opinion, post, p. 444. Thomas, J.,
post, p. 444, and Ginsburg, J., post, p. 455, filed dissenting opinions.
Paul O. Taylor argued the cause and filed briefs for
petitioner.
William J. Augello argued the cause for respondent.
With him on the brief was Alice I. Buckley.
John F. Manning argued the cause for the United States
et al. as amici curiae urging affirmance. On the brief were
Solicitor General Days, Deputy Solicitor General Wallace,
Michael R. Dreeben, Henri F. Rush, and Ellen D. Hanson.*
*Joseph L. Steinfeld, Jr., Robert B. Walker, John T. Siegler, and Scott
H. Lyon filed a brief for Overland Express, Inc., as amicus curiae urg-
ing reversal.
Frederick L. Wood, Nicholas J. DiMichael, and Richard D. Fortin filed
a brief for the National Industrial Transportation League as amicus
curiae urging affirmance.
511us2$49M 11-08-97 20:03:44 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 433
Opinion of the Court
Justice Souter delivered the opinion of the Court.
This case presents the question whether a motor carrier
in bankruptcy may recover for undercharges based on tariff
rates that are void as a matter of law under the Interstate
Commerce Commission's regulations. We hold that the car-
rier may not rely on the filed but void tariff.
I
On August 20, 1984, petitioner Security Services, Inc.,
(then known as Riss International Corp.) filed with the Inter-
state Commerce Commission (Commission or ICC) a mileage
(or distance) rate tariff having an effective date 30 days later.
The tariff was received, accepted, and filed, and was never
rejected by the ICC. Although the tariff specified rates to
be charged per mile of carriage, it was not complete in itself,
for it included no list of distances or map on which a shipper
could rely in calculating charges for a given shipment. For
the distance component of this mileage-based tariff, peti-
tioner relied upon a Household Goods Carriers' Bureau
(HGCB) Mileage Guide, its supplements, and subsequent is-
sues. HGCB is itself not a carrier, but a publisher of dis-
tance guides for use in tariff filings. The Mileage Guide is
a 565-page volume of large format, which specifies the dis-
tances in miles between various points of origin and destina-
tion, and contains maps and supplemental rules. The Mile-
age Guide refers shippers to a separate HGCB tariff and its
supplements, filed with the ICC, for a list of the carriers who
are "participants" in the Mileage Guide. A participant is a
carrier who pays HGCB a nominal fee and issues it a valid
power of attorney. The first page of HGCB's Mileage Guide
states that it "MAY NOT BE EMPLOYED BY A CAR-
RIER AS A GOVERNING PUBLICATION FOR THE
PURPOSE OF DETERMINING INTERSTATE TRANS-
PORTATION RATES BASED ON MILEAGE OR DIS-
TANCE, UNLESS CARRIER IS SHOWN AS A PARTICI-
511us2$49M 11-08-97 20:03:44 PAGES OPINPGT
434 SECURITY SERVICES, INC. v. KMART CORP.
Opinion of the Court
PANT IN THE ABOVE NAMED TARIFF." HGCB, Mile-
age Guide No. 12, p. 1 (Dec. 1982). HGCB filed a tariff sup-
plement to its Mileage Guide, effective February 19, 1985,
listing participants and canceling Riss's participation in the
Mileage Guide for failure to pay the nominal participation fee
to HGCB. HGCB treats a power of attorney issued to it as
void if not renewed by remitting the participation fee within
a reasonable time after cancellation. Riss did not renew.
On April 17, 1986, Riss contracted with respondent Kmart
Corporation to transport Kmart's goods at rates specified in
the contract, and from November 3, 1986, to December 29,
1989, Riss transported goods for Kmart under the contract.
Riss billed, and Kmart paid, at the contract rate. In No-
vember 1989, Riss filed a Chapter 11 bankruptcy petition and
while undergoing reorganization became Security Services.
As debtor-in-possession, Security Services billed Kmart for
undercharges (and interest) it was allegedly owed, based on
the difference between the contract rate Kmart paid and the
tariff rates that Riss assertedly had on file with the ICC.
Security Services argued that under the Interstate Com-
merce Act's filed rate doctrine, Kmart was liable for the tar-
iff rates filed with the ICC, regardless of any contract rate
negotiated. Kmart refused to pay, and this suit ensued.
The District Court for the Eastern District of Pennsylva-
nia granted summary judgment for Kmart on the ground
that Security Services had no valid tariff on file with the
ICC (without which it could not collect for undercharges),
because HGCB had canceled its participation in the Mileage
Guide. The Court of Appeals for the Third Circuit affirmed.
996 F. 2d 1516 (1993). The court reasoned that under ICC
regulations Riss's tariff was void for nonparticipation in the
HGCB Mileage Guide, that Riss had not filed any mileages
of its own to replace its canceled participation, and that the
consequently incomplete and void tariff could not support a
claim for undercharges. Id., at 1524. The court took the
position that, although the ICC regulations operated retro-
actively to void a filed tariff, that retroactive application was
511us2$49M 11-08-97 20:03:44 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 435
Opinion of the Court
permissible under this Court's test in ICC v. American
Trucking Assns., Inc., 467 U. S. 354 (1984). 996 F. 2d, at
1524Â1526. Finally, the court rejected Security Services's
argument that its failure to participate formally in the
HGCB Mileage Guide was a mere technical defect excused
by its substantial compliance with the rule requiring it to file
its rates with the Commission. Id., at 1526.
We granted certiorari, 510 U. S. 930 (1993), to resolve a
Circuit conflict over the validity of the ICC void-for-
nonparticipation regulation,1 and now affirm.
II
A motor carrier subject to the Interstate Commerce
Act must publish its rates in tariffs filed with the ICC.
49 U. S. C. §§ 10761(a), 10762(a)(1). The carrier "may not
charge or receive a different compensation for that trans-
portation . . . than the rate specified in the tariff . . . ."
§ 10761(a). We have held these provisions "to create strict
filed rate requirements and to forbid equitable defenses to
collection of the filed tariff." Maislin Industries, U. S., Inc.
v. Primary Steel, Inc., 497 U. S. 116, 127 (1990); accord,
Reiter v. Cooper, 507 U. S. 258, 266 (1993); Louisville &
Nashville R. Co. v. Maxwell, 237 U. S. 94, 97 (1915) ("Igno-
rance or misquotation of rates is not an excuse for paying or
charging either less or more than the rate filed"). The pur-
pose of the filed rate doctrine is "to ensure that rates are
both reasonable and nondiscriminatory," Maislin, supra, at
119 (citing 49 U. S. C. §§ 10101(a), 10701(a), 10741(b) (1982
ed.)), and failure to charge or pay the filed rate may result in
civil or criminal sanctions. See 49 U. S. C. §§ 11902Â11904.
1 Compare Overland Express, Inc. v. ICC, 996 F. 2d 356 (CADC 1993);
Security Services, Inc. v. PÂY Transp., Inc., 3 F. 3d 966 (CA6 1993);
Brizendine v. Cotter & Co., 4 F. 3d 457 (CA7 1993), with the decision below,
996 F. 2d 1516 (CA3 1993); see also Atlantis Express, Inc. v. Associated
Wholesale Grocers, Inc., 989 F. 2d 281 (CA8 1993); Freightcor Services,
Inc. v. Vitro Packaging, Inc., 969 F. 2d 1563 (CA5 1992), cert. denied, 506
U. S. 1053 (1993).
511us2$49M 11-08-97 20:03:44 PAGES OPINPGT
436 SECURITY SERVICES, INC. v. KMART CORP.
Opinion of the Court
The ICC has authority to "prescribe the form and manner"
of tariff filing, § 10762(b)(1), and the information to be in-
cluded in tariffs beyond any matter required by statute,
§ 10762(a)(1). Each carrier is responsible for ensuring that
it has rates on file with the ICC. §§ 10702, 10762. Under
ICC regulations, a carrier has some choice about the form
in which to state its rates, one possibility being a rate based
on mileage. A mileage rate has two components: the rate
per mile and distances between shipping points. 49 CFR
§ 1312.30 (1993). A carrier may file the distance portion of
the rate by listing in its own tariff the distances between all
relevant points, by referring to a map attached to its tariff,
or by referring to a separately filed distance guide, such as
the HGCB Mileage Guide. § 1312.30(c)(1). Petitioner does
not dispute that distance guides are themselves tariffs.
Brief for Petitioner 9, n. 4.2 A carrier may refer to a tariff
filed by another carrier or by an agent only by formally "par-
ticipating" in the referenced tariff, which may be done only
by issuing a power of attorney (or concurrence) to the other
carrier or agent. 49 CFR §§ 1312.4(d), 1312.10, 1312.27(e)
(1993). The Commission's void-for-nonparticipation regula-
tion provides that "a carrier may not participate in a tariff
issued in the name of another carrier or an agent unless a
power of attorney or concurrence has been executed. Ab-
sent effective concurrences or powers of attorney, tariffs
are void as a matter of law." § 1312.4(d). Tariff agents like
2 Amicus Overland Express, Inc., contends that participation in mileage
guides is not required, citing Revision of Tariff Regulations, All Carriers,
1 I. C. C. 2d 404, 425 (1984). But the ICC has interpreted its rules to
require such participation, Jasper Wyman & Son-Petition for Declara-
tory Order-Certain Rates and Practices of Overland Express, Inc., 8
I. C. C. 2d 246, 249Â252 (1992) (applying void-for-nonparticipation regula-
tion), petition for review granted, Overland Express, Inc. v. ICC, 996 F. 2d
356 (CADC 1993), and its interpretation of its own regulations is entitled
to "controlling weight unless it is plainly erroneous or inconsistent with
the regulation," Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414
(1945). The ICC's interpretation is neither.
511us2$49M 11-08-97 20:03:44 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 437
Opinion of the Court
HGCB are required to identify carriers participating in
their tariffs, by listing their names either in the tariff
containing the mileage guide itself, or in a separate tariff.
§§ 1312.13(c), 1312.25. The listings are meant to be kept rea-
sonably current, but are effective until changed. "Revoca-
tion or amendment of the power of attorney should be re-
flected through lawfully published tariff revisions effective
concurrently. In the event of failure to so revise the ap-
plicable tariff or tariffs, the rates in such tariff or tariffs
will remain applicable until lawfully changed." § 1312.10(a).
That is, cancellation of a power of attorney (whether by
carrier or agent) is accomplished by filing or amending a
tariff. §§ 1312.10(a), 1312.25(d), 1312.17(b). Until such fil-
ing or amendment, the carrier's reference to the agent's tar-
iff remains effective, § 1312.10(a); once the agent's tariff is
filed or amended to note cancellation of the carrier's partici-
pation, the carrier's tariff is void as a matter of law (absent
additional filing by the carrier). See § 1312.4(d).3 As the
ICC explained, once cancellation of participation is pub-
lished, as it was here, the mileage-based tariff is incomplete,
and "cease[s] to satisfy the fundamental purpose of tariffs;
to disclose the freight charges due to the carrier." Jasper
Wyman & Son-Petition for Declaratory Order-Certain
Rates and Practices of Overland Express, Inc., 8 I. C. C.
2d 246, 258 (1992) (applying void-for-nonparticipation regula-
tion), petition for review granted, Overland Express, Inc. v.
ICC, 996 F. 2d 356 (CADC 1993).
Congress passed the Motor Carrier Act of 1980, 94 Stat.
793, to encourage competition in the industry. In response
to this enactment and changes in the carrier market, the ICC
3 The ICC has apparently had a similar rule for many decades. In Can-
celation of Participation in Agency Tariffs, 4 Fed. Reg. 4440 (1939), the
Commission made clear that if an agent in whose tariff a carrier partici-
pated canceled the carrier's participation for nonpayment of dues or failure
to follow the agent's rules, the carrier could no longer lawfully rely on the
agent's tariffs and had to file its own tariffs to comply with the Act.
511us2$49M 11-08-97 20:03:44 PAGES OPINPGT
438 SECURITY SERVICES, INC. v. KMART CORP.
Opinion of the Court
simplified its tariff filing rules, as by eliminating the require-
ment that the actual powers of attorney be filed with the
ICC. See 48 Fed. Reg. 31265, 31266 (1983); see also Revi-
sion of Tariff Regulations, All Carriers, 1 I. C. C. 2d 404,
408 (1984). The ICC's rule that "participation" is required,
however, remained in force. See id., at 434; see also 48 Fed.
Reg. 31266 (1983) ("The obligation to limit tariff publication
to existing agency relationships remains, however, as a mat-
ter of law"). Many shippers and carriers nevertheless re-
sponded to the very changes in the market that prompted
the ICC's revision of its rules by ignoring the rates the carri-
ers had filed with the ICC and instead negotiating rates for
carriage lower than the filed rates. As a further result of
competitive pressures, many carriers also went bankrupt.
A number of trustees and debtors-in-possession then at-
tempted to recover as undercharges the difference between
the negotiated and filed rates. Since the market changes
convinced the ICC that strict adherence to the filed rate doc-
trine was no longer necessary under some circumstances,
Maislin, 497 U. S., at 121, the ICC decided to follow a new
policy of determining, case by case, whether it would be an
"unreasonable practice" under 49 U. S. C. § 10701 for a car-
rier (often by then bankrupt) to recover for undercharges
from a shipper who had paid a negotiated, rather than filed,
rate. See National Industrial Transportation League-
Petition to Institute Rulemaking on Negotiated Motor
Common Carrier Rates, 3 I. C. C. 2d 99, 104Â108 (1986);
5 I. C. C. 2d 623, 628Â634 (1989). In Maislin, we held that
this ICC practice violated the core purposes of the Act,
because "[b]y refusing to order collection of the filed rate
solely because the parties had agreed to a lower rate, the
ICC has permitted the very price discrimination that the
Act by its terms seeks to prevent." 497 U. S., at 130 (citing
49 U. S. C. § 10741). Thus, we held that any bankruptcy
trustee or debtor-in-possession was entitled to recover for
undercharges based on effective, filed rates.
511us2$49M 11-08-97 20:03:45 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 439
Opinion of the Court
Petitioner argues that the effect of the void-for-non-
participation rule is to allow transactions to be governed by
secretly negotiated rates, rather than the publicly filed rates
mandated by the Act. Petitioner would thus have us see the
ICC's recent enforcement of its void-for-nonparticipation
regulation as merely an attempt to evade Maislin and under-
mine the filed rate doctrine by keeping trustees or debtors-
in-possession from recovering for undercharges.
The argument is an odd one.4 The filed rate requirement
mandates that carriers charge the rates filed in a tariff. We
held in Maislin, supra, that the requirement was not subject
to discretionary enforcement when raised against a shipper
4 We have no occasion even to reach its factual predicate, which is vig-
orously disputed. Security Services argues that the agency failed to
enforce its regulation from amendment in 1984 until 1993. Petitioner
contends that the ICC routinely accepted tariffs containing methods
for computing distances that were not authorized by 49 CFR § 1312.30(c)
(1993), and that from 1984 to 1988, approximately 40 percent of all motor
carriers filing distance rate tariffs referring to HGCB mileage guides did
so without formally participating in them. See Overland Express, 996 F.
2d, at 359. Petitioner states that the ICC took no action after discovering
these failures to participate. The Government argues that the ICC cur-
rently enforces its void-for-nonparticipation rule. It represents, for ex-
ample, that in fiscal year 1993, the ICC "entered 24 consent decrees with
carriers who had let their participations in mileage guides and other tariffs
lapse, . . . sought and obtained one injunction, and . . . issued an order
pursuant to its broad remedial powers" directing carriers who had let their
participation in the HGCB lapse either to renew their participation or
"strike any reference" to the Mileage Guide in their tariffs. Tr. of Oral
Arg. 42. The Government also disputes the assertion that 40 percent of
carriers referring to an HGCB guide failed to participate in the guide.
The Government and Kmart claim that HGCB found only 111 such failures
among the filings of some 12,800 carriers who referred to HGCB guides,
and that the ICC has taken action for failure to participate. See House-
hold Goods Carriers' Bureau, Inc.-Petition for Cancellation of Tariffs
of Non-Participating Carriers, 9 I. C. C. 2d 378 (1993); National Motor
Freight Traffic Assn.-Petition for Cancellation of Tariffs That Refer to
the National Motor Freight Classification, but are Filed by or on Behalf
of Non-Participating Carriers, 9 I. C. C. 2d 186 (1992).
511us2$49M 11-08-97 20:03:45 PAGES OPINPGT
440 SECURITY SERVICES, INC. v. KMART CORP.
Opinion of the Court
who had agreed with a carrier to a negotiated rate lower
than the rate on file. When the carrier's bankruptcy
prompted second thoughts about the wisdom of the agree-
ment, the carrier and its creditors obtained the benefit of the
requirement. Here, as in Jasper Wyman, supra, the carrier
seeks to escape its burden by recovering for undercharges
even though in effect it had no rates on file because its tariff
lacked an essential element. The filed rate rule applied here
to bar the carrier's recovery is the same rule that was ap-
plied to bar the shipper's defense. Nor is the rule somehow
more technical or less equitable when applied against Secu-
rity Services. It can hardly be gainsaid that a carrier em-
ploying distance rates without purporting to be bound by
stated distances would be just as well placed to discriminate
among shippers by measuring with rubber instruments as it
would be by charging shippers for a stated distance at muta-
ble rates per mile. While some may debate in other forums
about the wisdom of the filed rate doctrine, it is enough to
say here that the carriers cannot have it both ways.5
III
Petitioner is left to invoke the limitations on the ICC's
authority to declare a rate void retroactively, and the "tech-
nical defect" rule.6 Neither is availing.
5 Both Justice Thomas, post, at 451, and n. 3, and Justice Ginsburg,
post, at 457Â458, argue that the effect of today's ruling is to validate se-
cretly negotiated rates. Indeed, Justice Thomas goes so far as to sug-
gest that our opinion would allow the ICC to circumvent Maislin Indus-
tries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116 (1990), merely by
declaring that a filed rate is void whenever another rate is negotiated,
post, at 455. But our opinion does nothing of the kind. The Interstate
Commerce Act states that carriers may provide transportation "only if
the rate for the transportation or service is contained in a tariff that is in
effect" under the provisions of the Act, 49 U. S. C. § 10761(a), and the Act
provides for civil and criminal penalties for failure to maintain such rates,
and to charge or pay them. See generally §§ 11901Â11904.
6 Justice Thomas in dissent argues that we ignore petitioner's "broader
argument . . . that the rule is not within the Commission's authority."
See post, at 453, n. 4. But petitioner's question presented was whether
511us2$49M 11-08-97 20:03:45 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 441
Opinion of the Court
A
The Court of Appeals believed, 996 F. 2d, at 1524Â1526,
as petitioner now argues, that the void-for-nonparticipation
rule retroactively voids rates and is thus subject to the anal-
ysis we applied in American Trucking, 467 U. S., at 361Â364,
367. See also Overland Express, 996 F. 2d, at 360. In
American Trucking, we held that the Commission could ret-
roactively void effective tariffs ab initio only if the action
"further[s] a specific statutory mandate of the Commission"
and is "directly and closely tied to that mandate." 467 U. S.,
at 367. But the rule is not apposite here, for the void-for-
nonparticipation regulation does not apply retroactively.
The ICC did not, as in American Trucking, void a rate for a
period during which an effective rate was filed. The ICC's
regulations operate to void tariffs that would otherwise
apply to future transactions, by providing that the rate be-
comes inapplicable when the tariff reference to the Mileage
Guide is canceled, i. e., from the moment at which examina-
tion of the tariff filings would show that the carrier's tariff
is incomplete, 49 CFR § 1312.10(a) (1993), after which the
shipper would be unable to rely on the incomplete tariff to
calculate the applicable charges.7 Transactions occurring
before cancellation of the power of attorney are governed by
"the Interstate Commerce Commission has discretionary authority to ret-
roactively void an effective tariff." Brief for Petitioner i. On the same
page cited by Justice Thomas for petitioner's "broader argument," peti-
tioner in fact describes the ICC rule as "treating [tariffs] as retroactively
void," id., at 20, and petitioner concludes the section by arguing that the
ICC has no power "to retroactively void effective tariffs." Id., at 24.
Petitioner's argument in that section is that the Interstate Commerce
Act "prescribes the remedies available to Kmart," id., at 17, not that the
regulation is ultra vires. Indeed, at oral argument, counsel for peti-
tioner stated that the ICC's void-for-nonparticipation rule "is authorized.
The rule is proper, but the application of the rule . . . is contrary to law."
Tr. of Oral Arg. 17.
7 If a canceled participation is renewed before the effective cancellation
date, participation may be restored on five days' notice by filing an
amended tariff. 49 CFR § 1312.39(a) (1993).
511us2$49M 11-08-97 20:03:45 PAGES OPINPGT
442 SECURITY SERVICES, INC. v. KMART CORP.
Opinion of the Court
the filed rate; transactions occurring after cancellation would
have no filed mileages to which a carrier's per-mile tariff
rates would apply to determine charges due. The regula-
tion does not require any ICC "retroactive rejection" of a
filed rate, or indeed any agency action at all. The regulation
works like an expiration date on an otherwise valid tariff in
voiding its future application, in accordance with § 1312.23(a).
Neither regulation works a retroactive voiding. We thus
disagree with the Court of Appeals for the District of Colum-
bia Circuit, which held that once a tariff is in effect, a regula-
tion that voids the tariff operates retroactively. Overland
Express, supra, at 360.
Here, petitioner's tariff reference to the HGCB Mileage
Guide became void as a matter of law and its tariff filings
incomplete on their face on February 19, 1985, when HGCB
canceled its participation in the Mileage Guide by filing a
supplemental tariff. The transactions with Kmart occurred
after that date.
B
Nor does the "technical defect" rule apply here. Under
our cases, neither procedural irregularity nor unreasonable-
ness nullifies a filed rate; the shipper's remedy for irregular-
ity or unreasonable rates is damages. See, e. g., Berwind-
White Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S.
371 (1914); Davis v. Portland Seed Co., 264 U. S. 403 (1924).
In Berwind-White, the Court held that filed tariffs falling
short of full compliance in stylistic matters were still "ade-
quate to give notice" and so could support a carrier's claim
against a shipper for charges due. 235 U. S., at 375. In
Davis, the effect of applying the carrier's tariff violated a
former statutory bar to charging less for a longer distance
than for a shorter one over the same route, other things
being equal. The Court rejected the position that the
higher rate was void and the lower rate legally applicable,
so that damages would depend upon the difference between
the two, and held that the shipper's remedy was instead to
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Cite as: 511 U. S. 431 (1994) 443
Opinion of the Court
be measured by its actual damages from having been
charged the higher rate as compared to a reasonable one.
264 U. S., at 424Â426.8
Unlike the shippers in the "technical defect" cases, the
shipper here could not determine the carrier's rates, since
under the regulations, distance tariffs are incomplete once
the carrier's participation in the Mileage Guide has been
canceled by the agent's filing. See 49 CFR §§ 1312.4(d),
1312.10(a), 1312.30 (1993). We are dealing not with a com-
plete tariff subject to some blemish independently remedia-
ble, but with an incomplete tariff insufficient to support a
reliable calculation of charges. Security Services, however,
questions the distinction by arguing that a shipper is un-
likely to search for the list of participating carriers and to
determine from the agent's supplemental tariffs that a carri-
er's participation has been canceled. Rather, a shipper is
likely only to follow the reference in the carrier's tariff to the
HGCB Mileage Guide, and can fully calculate the applicable
charges. But the likelihood or unlikelihood of a shipper's
actually reading all the applicable tariffs is simply irrelevant,
for carriers and shippers alike are charged with construc-
tive notice of tariff filings, Kansas City Southern R. Co. v.
Carl, 227 U. S. 639, 653 (1913); Reiter v. Cooper, 507 U. S., at
266, and the fact that shippers may take shortcuts through
the filings cannot convert an incomplete tariff into a com-
plete one. In sum, a tariff that refers to another tariff for
essential information, which tariff in turn states that the
carrier may not refer to it, does not provide the "adequate
notice" of rates to be charged that our "technical defect"
cases require.
8 See also Texas & Pacific R. Co. v. Cisco Oil Mill, 204 U. S. 449 (1907)
(Tariff rates filed with ICC and furnished to freight officers of railroad are
legally operative despite railroad's failure to post two copies in each rail-
road depot); Genstar Chemical Ltd. v. ICC, 665 F. 2d 1304, 1309 (CADC
1981) ("[T]he `error' in the tariff was certainly not apparent on its face"),
cert. denied, 456 U. S. 905 (1982).
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444 SECURITY SERVICES, INC. v. KMART CORP.
Thomas, J., dissenting
IV
When a carrier relies on a mileage guide filed by another
carrier or agent, under ICC regulations the carrier must par-
ticipate in the guide by maintaining a power of attorney;
when a carrier fails to maintain its power of attorney and
its participation is canceled by its former agent's filing of
an appropriate tariff, the carrier's tariff is void. Trustees
in bankruptcy and debtors-in-possession may rely on the
filed rate doctrine to collect for undercharges, Maislin In-
dustries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116
(1990), but they may not collect for undercharges based on
filed, but void, rates. The decision of the Court of Appeals
is accordingly
Affirmed.
Justice Stevens, concurring.
Although I remain convinced that the Court stumbled
badly in Maislin Industries, U. S., Inc. v. Primary Steel,
Inc., 497 U. S. 116 (1990), when it rejected the sensible con-
struction of the Interstate Commerce Act that had been
adopted by six Courts of Appeals and the agency responsible
for the Act's enforcement, see id., at 139 (dissenting opinion),
I agree with the Court's disposition of this case. I write
only to note that both this case and Maislin involve a carrier
in bankruptcy seeking to enforce a "filed" rate that was
higher than the one it negotiated with the shipper; in neither
case was there any allegation or evidence that a carrier had
violated the "core purposes of the Act" by charging discrimi-
natory rates. See ante, at 438; 497 U. S., at 130.
Justice Thomas, dissenting.
The Court today concludes that the Interstate Commerce
Commission has the authority to promulgate regulations
under which a carrier's duly filed and effective tariff auto-
matically becomes "void" without "any agency action at all,"
ante, at 442, if the carrier at some time after filing fails to
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Cite as: 511 U. S. 431 (1994) 445
Thomas, J., dissenting
comply with certain requirements of the Commission's regu-
lations. Because I find nothing in the Interstate Commerce
Act that expressly or impliedly gives the Commission such
authority, I respectfully dissent.
I
The Interstate Commerce Act (Act), 49 U. S. C. § 10101
et seq., requires motor common carriers such as petitioner
to publish and file with the Interstate Commerce Commis-
sion (Commission or ICC) tariffs containing their rates for
transportation or other service under the Commission's
jurisdiction, § 10762(a)(1), and forbids them to "charge or
receive a different compensation for that transportation or
service than the rate specified in the tariff," § 10761(a). In
other words, common carriers must charge the filed rate and
only the filed rate. This "filed rate doctrine" admits of few
exceptions. As we have often stated, " `[d]eviation from [the
filed rate] is not permitted upon any pretext. . . . This rule
is undeniably strict and it obviously may work hardship in
some cases, but it embodies the policy which has been
adopted by Congress.' " Maislin Industries, U. S., Inc. v.
Primary Steel, Inc., 497 U. S. 116, 127 (1990) (quoting Louis-
ville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 97 (1915)).
That much is not in dispute. Cf. ante, at 435; post, at
455. This case turns, not on an application of the filed rate
doctrine per se, but on the extent of the Commission's au-
thority to determine what rates and tariffs are "filed" or, in
the terms of the statute, "in effect." 49 U. S. C. § 10761(a).
ICC regulations permit a carrier to file a tariff that incorpo-
rates another entity's tariff by reference, provided that the
carrier "participates" in that entity's tariff-that is, provided
that the carrier maintains an effective concurrence or power
of attorney with the publisher of the referenced tariff. See
49 CFR §§ 1312.27(e), 1312.30(c)(4), 1312.4(d) (1993). The
regulatory provision at issue here, the so-called "void-for-
nonparticipation rule," provides that "[a]bsent effective con-
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446 SECURITY SERVICES, INC. v. KMART CORP.
Thomas, J., dissenting
currences or powers of attorney, tariffs are void as a matter
of law." § 1312.4(d) (emphasis added).
Taking advantage of the ability to participate in other en-
tities' tariffs, petitioner filed a tariff with the Commission
that specified rates per mile for the carriage of various goods
and provided that distances would be calculated using a filed
tariff (often referred to as a distance guide) of the Household
Goods Carriers' Bureau (HGCB). See App. 27. The Com-
mission accepted the tariff for filing, and it became effective.
At some point between the effective date of petitioner's
tariff and the shipments at issue here, however, petitioner
allowed its participation in the HGCB distance guide to
lapse. After transporting goods for respondent under a
contract that provided for a rate lower than the filed rate,
petitioner sought to recover the difference between the filed
rate and the contract rate in an action for undercharges.
See 49 U. S. C. § 11706(a). The Third Circuit held the filed
rate unenforceable because petitioner had failed to maintain
its participation in the distance guide; its tariff was void
under 49 CFR § 1312.4(d) (1993). See 996 F. 2d 1516, 1524
(1993). Petitioner challenges the Commission's authority to
promulgate § 1312.4(d)'s void-for-nonparticipation rule.
II
We considered a similar challenge to the Commission's
statutory authority in ICC v. American Trucking Assns.,
Inc., 467 U. S. 354 (1984). At issue there was the Commis-
sion's power to reject an effective tariff that had been sub-
mitted in substantial violation of a rate-bureau agreement.
In determining whether that remedy was within the Com-
mission's authority, we asked two questions: first, whether
the Act expressly authorized the agency action in question,
see id., at 361Â364; and second, if it did not, whether the
remedy nevertheless was "direct[ly] adjunct to the Commis-
sion's explicit statutory power"-that is, whether it "fur-
ther[ed] a specific statutory mandate" and was "directly and
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Cite as: 511 U. S. 431 (1994) 447
Thomas, J., dissenting
closely tied to that mandate." Id., at 365, 367 (internal quo-
tation marks omitted). To ascertain whether the void-for-
nonparticipation rule is within the Commission's power, we
should ask the same questions.
The Court dispenses with the inquiry outlined in Ameri-
can Trucking, however, in the belief that the decision applies
only to cases involving "retroactiv[e]" action by the Commis-
sion. Ante, at 440. It is true that in American Trucking,
the Commission's rejection remedy operated retroactively
by voiding the tariff ab initio. Thus, unlike the Commis-
sion's action in this case, the remedy affected the charges
for transportation completed before the rejection took place.
The Court, however, misapprehends the scope of our holding.
Far from establishing a special test for retroactive Commis-
sion actions, American Trucking merely applied established
principles delimiting the Commission's implied or adjunct
powers. Although the retroactive effect of the proposed
remedy was relevant to our assessment of the Commission's
authority, it did not alter our method of analyzing the statu-
tory challenge to the Commission's power.
Indeed, the decisions upon which we relied in American
Trucking make clear that the methodology we pursued in
that case is not limited to situations involving retroactive
agency action. See American Trucking, supra, at 365Â366
(discussing Trans Alaska Pipeline Rate Cases, 436 U. S. 631
(1978), and United States v. Chesapeake & Ohio R. Co., 426
U. S. 500 (1976)). Those cases involved "the Commission's
efforts to place reasonable conditions on the acceptance of
proposed tariffs" as an alternative to suspension of the tar-
iffs pending investigation. 467 U. S., at 365. In Chesa-
peake & Ohio, the Court considered whether conditions im-
posed on immediate acceptance of a tariff, although not
expressly authorized by the Act, were impliedly authorized
because they were "directly related to" the Commission's
specific statutory mandate to review, and to suspend if neces-
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448 SECURITY SERVICES, INC. v. KMART CORP.
Thomas, J., dissenting
sary, tariff rates when filed. 426 U. S., at 514. Similarly,
we held in Trans Alaska that, "as in [Chesapeake & Ohio],
the . . . conditions [imposed were] a `. . . direct adjunct to
the Commission's explicit statutory power to suspend rates
pending investigation,' in that they allow[ed] the Commis-
sion, in exercising its suspension power, to pursue `a more
measured course' and to `offe[r] an alternative tailored far
more precisely to the particular circumstances' of these
cases." 436 U. S., at 655 (quoting Chesapeake & Ohio,
supra, at 514). In both cases, although the actions had only
prospective effect, we determined whether they came within
the Commission's implied powers by applying essentially the
same test that we subsequently applied in American Truck-
ing to determine whether the action was within the Commis-
sion's implied powers. See 467 U. S., at 367.
III
A
Proceeding with the analysis outlined above, I necessarily
begin with the terms of the statute. The Act expressly
gives the Commission an "impressive array of prescriptive
powers, overcharge assessments, damages remedies, and
civil and criminal fines" to enable it to enforce the filing and
substantive requirements of the Act. Id., at 379 (O'Con-
nor, J., dissenting). See also id., at 359Â360. Nowhere,
however, does the Act give the Commission authority to ren-
der a duly filed and effective tariff void upon noncompliance
with a statutory or regulatory requirement.
It might be thought that the most likely source of author-
ity to promulgate the void-for-nonparticipation rule is 49
U. S. C. § 10762(e), which authorizes the Commission to "re-
ject" tariffs. American Trucking, however, forecloses reli-
ance on that section. Although § 10762(e) does not by its
terms apply only to proposed tariffs, we concluded in Ameri-
can Trucking that "unbridled discretion to reject effective
tariffs at any time would undermine restraints placed by
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Cite as: 511 U. S. 431 (1994) 449
Thomas, J., dissenting
Congress on the Commission's power to suspend a proposed
tariff." 467 U. S., at 363.1 We therefore held that § 10762(e)
does not apply "to tariffs that have gone into effect." Id.,
at 362. The critical point for our analysis of the Commis-
sion's express authority under the Act was not that the pro-
posed remedy was retroactive, but that it voided an effective
tariff. Our holding was premised on recognition that once
a tariff becomes effective, the Commission's power to nullify
it is limited by the Act.2 Section 10704(b), for example,
"which deals with the Commission's authority to cancel ef-
fective tariffs," requires a full Commission hearing before
action is taken. Id., at 363 (emphasis added). The void-
for-nonparticipation rule, which nullifies effective tariffs,
provides none of the same procedural protections. Quite
the contrary, it obviates the need for "any agency action at
all." Ante, at 442.
1 The Commission may, pending investigation, suspend a "proposed rate,
classification, rule, or practice at any time for not more than 7 months
beyond the time it would otherwise go into effect." 49 U. S. C. § 10708(b)
(emphasis added). To do so, the Commission must notify the carrier and
file a notice of suspension with the proposed tariff. If the Commission
fails to act by the end of the suspension period, the tariff goes into ef-
fect. Ibid.
2 The D. C. Circuit has linked this conclusion to the concept of retro-
activity. See Overland Express, Inc. v. ICC, 996 F. 2d 356, 360 (CADC
1993) ("That a tariff was effective or in effect is what makes rejection
retroactive"), cert. pending, No. 93Â883. Cf. Justice Ginsburg's dissent,
post, at 457. I agree with the Court that the void-for-nonparticipation
rule operates only prospectively, see ante, at 441, because the rule does
not affect any transportation provided prior to the lapse in participation
that triggers application of the rule. Nevertheless, because American
Trucking focused, not on retroactivity, but on the Commission's nullifica-
tion of an effective tariff, the D. C. Circuit properly concluded that the
decisive factor for American Trucking's statutory analysis was the rejec-
tion of a tariff after its effective date. In other words, the D. C. Circuit
was correct in stating in the disjunctive that "[t]he Commission is re-
stricted [by American Trucking's holding] whenever it attempts to invali-
date (or alter the past effects of) a tariff after the application period has
ended." Overland Express, supra, at 360 (emphasis added).
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450 SECURITY SERVICES, INC. v. KMART CORP.
Thomas, J., dissenting
Perhaps realizing that the Act's provisions relating to the
suspension or rejection of tariffs provide no authority for
the void-for-nonparticipation rule, the Commission relies
instead on § 10762(a)(1), which allows the Commission to
"prescribe other information" to be included in tariffs. See
Wonderoast, Inc., 8 I. C. C. 2d 272, 275 (1992). That section,
however, says nothing about enforcement of the require-
ments the Commission imposes, and thus does not-at least
expressly-expand the scope of the Commission's enforce-
ment mechanisms. Reading it to do so would pose the same
problem that led us to construe § 10762(e) narrowly in Amer-
ican Trucking. An unlimited power to reject effective tar-
iffs would render the "temporal and procedural constraints"
of other sections of the Act "nugatory" and would permit the
Commission to void a tariff "at any time and without any
procedural safeguards." American Trucking, supra, at 363.
B
The absence of explicit authority in the Act does not end
our inquiry, because Congress did not limit the Commission
to the powers expressly granted by the Act. See 49 U. S. C.
§ 10321(a) ("Enumeration of a power of the Commission in
this subtitle [§§ 10101Â11917] does not exclude another power
the Commission may have in carrying out this subtitle").
See also American Trucking, supra, at 364Â365 ("The Com-
mission's authority under the [Act] is not bounded by the
powers expressly enumerated in the Act") (citing § 10321(a)).
Thus, we have recognized that in addition to its express pow-
ers, the Commission has implied authority to take actions
that are "direct[ly] adjunct to [its] explicit statutory power."
467 U. S., at 365 (internal quotation marks omitted). The
Third Circuit, which applied the American Trucking analy-
sis of the express and implied authority of the Commission,
concluded that the void-for-nonparticipation rule is impliedly
authorized by the Act because it is directly adjunct to the
Commission's statutory power under § 10762(a)(1) to deter-
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Cite as: 511 U. S. 431 (1994) 451
Thomas, J., dissenting
mine what information shall be included in tariffs. See 996
F. 2d, at 1525Â1526. The court failed, however, to consider
the relationship of the rule to the Act as a whole. Viewed
in isolation, any remedy designed to enforce a regulation pro-
mulgated under the Act might be said to be "adjunct" to the
relevant provision of the Act, but Maislin makes clear that
the Act must be considered in its entirety. "[A]lthough . . .
the Commission may have discretion to craft appropriate
remedies for violations of the statute"-and, possibly, viola-
tions of its regulations-the remedy may not "effectively
rende[r] nugatory the requirements of §§ 10761 and 10762"
and thereby "conflic[t] directly with the core purposes of the
Act." Maislin, 497 U. S., at 133.
Viewed in this light, it is clear that far from being "directly
adjunct" to a statutory power of the Commission, the void-
for-nonparticipation rule is directly contrary to the Act's
commands and, indeed, to the essence of the filed rate doc-
trine. The rule nullifies an effective tariff-that is, one that
has been filed and gone into effect, § 10762(a)(2), and has not
been suspended or set aside by the Commission or canceled
by the carrier-without "any agency action at all," ante, at
442, and allows to stand a rate negotiated between a carrier
and a shipper but never filed. Like the policy contested in
Maislin, the void-for-nonparticipation rule thus "undermines
the basic structure of the Act" by sanctioning adherence to
an unfiled rate. 497 U. S., at 132.3
3 When the Commission displaces or finds inapplicable a particular filed
rate under other sections of the Act expressly authorizing it to do so, that
rate is generally replaced either by a reasonable rate prescribed by the
Commission, see 49 U. S. C. § 10704(b), or by a different filed rate. See
Maislin, 497 U. S., at 129, n. 11 ("None of our cases involving a determina-
tion by the ICC that the carrier engaged in an unreasonable practice have
required departure from the filed tariff schedule altogether; instead, they
have required merely the application of a different filed tariff"); ICC v.
American Trucking Assns., Inc., 467 U. S. 354, 358 (1984). As Justice
Ginsburg explains, see post, at 457Â458, by sanctioning a rate negotiated
by the parties, the Commission, now with the Court's approval, condones
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452 SECURITY SERVICES, INC. v. KMART CORP.
Thomas, J., dissenting
The ability of both carrier and shipper to rely on the tar-
iff on file with the Commission is central to the Act's filed
rate provisions. See American Trucking, 467 U. S., at 363Â
364, n. 7. Therefore, we have consistently held that "[u]nless
and until suspended or set aside, [the rate in the published
tariff] is made, for all purposes, the legal rate, as between
carrier and shipper." Keogh v. Chicago & Northwestern
R. Co., 260 U. S. 156, 163 (1922). See also Maislin, supra,
at 126. This remains the case even if the filed tariff does
not conform with technical filing requirements, see, e. g.,
Berwind-White Coal Mining Co. v. Chicago & Erie R. Co.,
235 U. S. 371 (1914), or violates a clear prohibition in the
statute. See Davis v. Portland Seed Co., 264 U. S. 403
(1924) (enforcing tariff rate that unlawfully assessed a higher
charge for a shorter shipment than a longer shipment along
the same route). As long as a tariff is "received and placed
on file by the Commission without any objection whatever
. . . [and] as a matter of fact [is] adequate to give notice,"
that tariff controls. Berwind-White, supra, at 375.
There can be no doubt that petitioner's tariff was suffi-
ciently complete "as a matter of fact" to give notice of the
applicable charge. 235 U. S., at 375. Petitioner's tariff was
filed with (and accepted by) the Commission and became ef-
fective well before the transportation at issue. It has never
been suspended or set aside by the Commission or canceled
by petitioner. At all times it stated that distances would be
determined by reference to the HGCB distance guide-an
effective, duly filed tariff. See App. 27. Neither respond-
ent nor the Commission suggests any confusion or ambiguity
as to what charge would be due under petitioner's tariff, but
for the challenged void-for-nonparticipation rule. As Jus-
tice Ginsburg explains, see post, at 458Â459, petitioner and
respondent could calculate the appropriate charge (if either
desired) just as easily after petitioner's participation lapsed
precisely the "secret" rates and the potential for price discrimination that
the Act was intended to prohibit. See 49 U. S. C. § 10101(a)(1)(D).
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Thomas, J., dissenting
as they could on the date petitioner's tariff was filed. Under
our prior filed rate cases, nothing more is required for the
filed tariff to be enforced.
IV
The Court's refusal to apply American Trucking's two-
step method of statutory analysis leads to a remarkable re-
sult: The Court upholds an agency regulation challenged as
beyond the agency's statutory authority without ever con-
sidering whether any provision of the statute explicitly au-
thorizes the regulation and, if not, whether the regulation
is sufficiently related to an express statutory authority to
be within the agency's implied powers. Indeed, much of
the Court's analysis simply begs the question whether the
Commission had authority to promulgate the void-for-
nonparticipation rule.4 In the Court's view, petitioner can-
not appeal to our precedents governing the enforcement of
filed tariffs because "under the regulations, distance tariffs
are incomplete once the carrier's participation in the [HGCB]
Mileage Guide has been canceled." Ante, at 443. Similarly,
the Court concludes that Maislin requires that petitioner's
tariff not be enforced because petitioner "had no rates on file
because its tariff lacked an essential element." Ante, at 440.
In both instances, the Court assumes that the void-for-
nonparticipation rule is valid, and that petitioner's tariff
is therefore void. But whether the Commission may deem
the tariff incomplete as a matter of law through 49 CFR
4 In considering the case closed after rejecting the contention that the
void-for-nonparticipation rule is impermissibly retroactive under Ameri-
can Trucking, the Court also ignores petitioner's broader argument. Al-
though petitioner does assert that the void-for-nonparticipation rule is
"retroactive," see Brief for Petitioner 7Â16, it also contends more generally
that the rule is not within the Commission's authority. See id., at 17Â24.
Specifically, petitioner argues that the Act's "carefully integrated and
complete system of procedures, remedies and penalties" does not "giv[e]
the ICC the broad nullification power set forth in 49 C. F. R. § 1312.4(d)."
Id., at 17, 20.
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454 SECURITY SERVICES, INC. v. KMART CORP.
Thomas, J., dissenting
§ 1312.4(d) (1993) is precisely the question we are asked to
answer.5
In failing even to consider the Commission's authority to
promulgate the void-for-nonparticipation rule, and thereby
to void effective tariffs, the Court also fails to consider any
limit the Act might place on that authority. Under the
Court's holding, it would appear that the Commission could
provide that tariffs will become void, without "any agency
action at all," ante, at 442, because of any number of tech-
nical or substantive defects, all in the name of enforcing
the provisions of the Act and ICC regulations. In each in-
stance, noncompliance would enable a carrier and preferred
shippers to negotiate more favorable rates with the assur-
ance that the rate on file could not be enforced. Until the
Commission examines the carrier's tariff carefully and sets
it aside (actions ostensibly made unnecessary by the void-
for-nonparticipation rule), the unfiled rates, rather than the
filed-but-void tariff, will govern the relationship between
the parties.
The unfortunate lesson for the Commission is that its
Court-sanctioned voiding power provides the key to unravel-
ing the Act's filed rate requirements.6 If the Court is cor-
rect, the Commission's mistake in Maislin was its choice of
remedies, not its objective. In Maislin, the Commission
attempted to justify its policy of refusing to enforce a filed
tariff rate where the parties had negotiated a different rate
5 The Court's suggestion that the carrier "cannot have it both ways,"
ante, at 440-that is, that it cannot rely rigidly on the filed rate doctrine
in some cases to enforce the effective rates on file with the Commission
and at the same time not suffer the harsh consequences of the doctrine
when its rate on file is ineffective-presents the same problem. The
Court assumes that there is no filed rate to bind any party in the absence
of current participation in the HGCB distance guide.
6 It is also worth noting that the Court's rationale should apply equally
to other agencies operating under filed rate regimes, such as, for example,
the Federal Communications Commission. See 47 U. S. C. § 203 (1988 ed.
and Supp. IV).
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Ginsburg, J., dissenting
"as a remedy for the carrier's failure to comply with § 10762's
directive to file the negotiated rate with the ICC." 497
U. S., at 131. We rejected that rationale because "§ 10761
requires the carrier to collect the filed rate." Ibid. Under
the reasoning the Court applies today, however, it appears
that the Commission merely chose the wrong remedy: It
should have promulgated a rule declaring a filed tariff
"void as a matter of law" upon negotiation of a different rate,
thereby rendering the filed rate unenforceable. Section
10761 and the filed rate doctrine would not stand in the way,
in the Court's view, because the carrier would have no effec-
tive rate on file. See ante, at 439Â443. In my view, the
Court's reasoning will permit the Commission to turn the
filed rate doctrine on its head.
For the foregoing reasons, I respectfully dissent.
Justice Ginsburg, dissenting.
The filed rate doctrine is an integral part of the Interstate
Commerce Act. See 49 U. S. C. § 10761(a) (a "carrier may
not charge or receive a different compensation . . . than the
rate specified in [its] tariff"). At least since 1915, this Court
has held that the doctrine entitles a carrier to collect the
rate on file with the Interstate Commerce Commission (Com-
mission or ICC), despite a contract, negotiated between ship-
per and carrier, setting a lower price. See Louisville &
Nashville R. Co. v. Maxwell, 237 U. S. 94, 97 (1915). The
main rule to which we have adhered requires enforcement of
the filed rate unless the Commission either rejects the tariff
because of a formal or substantive defect, before the rate
takes effect, 49 U. S. C. § 10762(e), or prospectively invali-
dates a tariff after initiating an investigation and finding the
filed rate unreasonable. § 10704(b)(1). See Keogh v. Chi-
cago & Northwestern R. Co., 260 U. S. 156, 163 (1922) ("The
legal rights of shipper as against carrier in respect to a rate
are measured by the published tariff. Unless and until
suspended or set aside, this rate is made, for all purposes,
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456 SECURITY SERVICES, INC. v. KMART CORP.
Ginsburg, J., dissenting
the legal rate, as between carrier and shipper.") (emphasis
added).
Under our filed rate doctrine decisions, even defective fil-
ings, including those containing substantively unlawful rates,
see Davis v. Portland Seed Co., 264 U. S. 403, 425 (1924),
normally control. See ICC v. American Trucking Assns.,
Inc., 467 U. S. 354, 363Â364, n. 7 (1984); Berwind-White Coal
Mining Co. v. Chicago & Erie R. Co., 235 U. S. 371, 375
(1914). A shipper's remedy, when a filed rate imposes an
unlawful charge, ordinarily is confined to actual damages.
See American Trucking, supra, at 364, n. 7 (citing Boren-
Stewart Co. v. Atchison, T. & S. F. R. Co., 196 I. C. C.
120 (1933), and Acme Peat Products, Ltd. v. Akron, C. & Y.
R. Co., 277 I. C. C. 641, 644 (1950)). The ICC may not re-
ject a tariff once accepted and in effect, American Trucking,
supra, at 360Â364, unless two conditions are satisfied: First,
the Commission's action must "further a specific statutory
mandate"; second, the action "must be directly and closely
tied to that mandate," 467 U. S., at 367.1
In the 1980's, as the Court recognizes, ante, at 438, many
carriers responded to competitive pressures by ignoring the
tariffs they had filed with the ICC and negotiating with ship-
pers rates for carriage lower than the filed rates. When car-
rier bankruptcies ensued, trustees asserted claims against
1 American Trucking itself is illustrative. There, the Court upheld the
ICC's authority to reject effective tariffs to deter violations of "rate bu-
reau agreements." Under such agreements, carriers may submit collec-
tive rates to the Commission without risking antitrust liability, provided
the agreements conform to specific guidelines set forth in 49 U. S. C.
§ 10706(b)(3). Reasoning that Congress intended the Commission to "play
a key role in holding carriers to the § 10706(b)(3) guidelines," and that the
nullification in question "is directly aimed at ensuring that motor carriers
comply with the [statutory] guidelines," the Court held the ICC's action
permissible. 467 U. S., at 369, 370. In so holding, the Court stressed that
its "concern over the harshness" of the remedy "is lessened by the signifi-
cant steps the Commission has taken to ensure that the penalty will not
be imposed unfairly." Id., at 370.
511us2$49P 11-08-97 20:03:45 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 457
Ginsburg, J., dissenting
shippers for the difference between the filed rates and the
negotiated rates. Reacting to these claims, the Commission
refused to enforce filed rates when it appeared inequitable
to exact from the shipper more than the negotiated lower
price. In Maislin Industries, U. S., Inc. v. Primary Steel,
Inc., 497 U. S. 116 (1990), this Court held the ICC's nonen-
forcement policy inconsistent with the Act, explaining:
"[T]he filed rate doctrine . . . forbids as discriminatory
the secret negotiation and collection of rates lower than
the filed rate. By refusing to order collection of the
filed rate solely because the parties had agreed to a
lower rate, the ICC has permitted the very price dis-
crimination that the Act by its terms seeks to prevent."
Id., at 130 (citation omitted).
Invoking the filed rate doctrine and case law elaborating
on it, petitioner Security Services seeks to recover under-
charges for shipments its predecessor, Riss International,
made between November 1986 and December 1989. During
the period for which recovery is sought, the ICC followed
the policy later declared unlawful in Maislin, i. e., the Com-
mission routinely refused to order collection of the filed rate
where the parties had agreed upon a lower rate. Newly
professing strict adherence to the filed rate doctrine, the
ICC now contends it may nonetheless void a carrier's tariff,
though valid when filed, and uphold, in place of the filed rate,
"secret" contract rates of the kind held invalid in Maislin.
The ICC asserts it may do so for this reason: The carrier
allowed a power of attorney to the Household Goods Carri-
ers' Bureau (HGCB) to lapse and neglected to pay a nominal
annual fee to maintain its membership participation in
HGCB's Mileage Guide.2 The Court upholds the ICC's posi-
tion, describing the carrier's tariff as "lack[ing] an essential
element," ante, at 440; "a carrier employing distance rates
without purporting to be bound by stated distances," the
2 The fee was approximately $83. Tr. of Oral Arg. 10.
511us2$49P 11-08-97 20:03:45 PAGES OPINPGT
458 SECURITY SERVICES, INC. v. KMART CORP.
Ginsburg, J., dissenting
Court reasons, "would be just as well placed to discriminate
among shippers by measuring with rubber instruments as it
would be by charging shippers for a stated distance at muta-
ble rates per mile." Ibid.; see also ante, at 443 ("We are
dealing . . . with an incomplete tariff insufficient to support
a reliable calculation of charges.").
It is difficult to regard the Commission's approach, and the
Court's approval of it, as anything other than an end-run
around the filed rate doctrine so recently and firmly upheld
in Maislin. For the distances put forward in the tariff at
issue are not genuinely in doubt. On the contrary, Riss' tar-
iff explicitly incorporated the mileage figures from HGCB's
Mileage Guide. A "close inspection of [HGCB's tariff sup-
plement] might have raised some uncertainty in a shipper's
mind about the propriety of [Riss'] reference to the Guide
[Riss not having paid its dues], but not any uncertainty over
the rate." Overland Express, Inc. v. ICC, 996 F. 2d 356, 361
(CADC 1993) (Silberman, J.), cert. pending, No. 93Â883. As
crisply stated in Brizendine v. Cotter & Co., 4 F. 3d 457,
463Â464 (CA7 1993) (Flaum, J.), cert. pending, No. 93Â1129:
"[S]urely [the carrier's] tariff provided sufficient infor-
mation about its rates to give notice to its customers
about the price of shipping. Any shipper who consulted
[the carrier's] tariff would find the rate per mile and
would know where to look-namely, to another tariff on
file with the ICC-to determine the distance. . . . [T]he
only way a curious shipper would ever know that [the
carrier] failed to submit a power of attorney to HGCB
would be if it looked up [the] filed rate; saw that the
tariff refers to HGCB's mileage guide; inspected the
mileage guide; noticed that page two of the guide states
that it applies only to participating carriers listed in a
supplement; turned to the supplement; and discovered
that [the carrier's] name was missing."
511us2$49P 11-08-97 20:03:45 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 459
Ginsburg, J., dissenting
Were the Commission in fact set on adherence to the filed
rate doctrine, carriers like Riss could employ no "rubber in-
struments." Riss' tariff clearly said that the carrier incor-
porated the distances in HGCB's guide. The Commission
could hold Riss to that representation, while imposing a
sanction for the HGCB membership lapse that did not negate
the filed rate. As Judge Flaum stated in Brizendine:
"Under the filed rate doctrine, even tariffs that contain
substantively unlawful rates or violate ICC filing rules
are not nullities. The shipper must pay the rate on file,
and may then sue for the harm, if any, caused by the
tariff's unlawfulness or irregularity. The enforceability
of published rates, however defective, discourages the
parties (especially shippers, who may face undercharge
suits later) from bargaining for other prices." 4 F. 3d,
at 463 (citations and footnote omitted).
The Court attempts to justify the Commission's application
of 49 CFR § 1312.4(d) (1993) as a "void-for-nonparticipation"
rule by equating that rule to a tariff's expiration date. Ante,
at 441Â442. But American Trucking held that the Commis-
sion generally lacks authority to reject a tariff "once that tariff
has gone into effect." 467 U. S., at 360; see id., at 363, n. 7;
Brizendine, supra, at 463 (American Trucking "makes clear
that a carrier's submitted rate becomes the legal, governing
rate when the ICC accepts it."). As Judge Silberman ex-
plained in Overland Express:
"A regulation that purports to make a tariff[, once effec-
tive,] `void' or `ineffective' if a carrier fails to follow a
procedural rule, . . . does not [escape] American Truck-
ing's holding. The Commission is restricted whenever
it attempts to invalidate (or alter the past effects of) a
tariff after [the tariff's effective date]. Otherwise,
shippers and carriers could not rely confidently on the
rate on file with the Commission, and . . . the filed rate
doctrine would be undermined." 996 F. 2d, at 359Â360.
511us2$49P 11-08-97 20:03:45 PAGES OPINPGT
460 SECURITY SERVICES, INC. v. KMART CORP.
Ginsburg, J., dissenting
Nor does the void-for-nonparticipation rule fit within
the limited exception described in American Trucking for
actions that directly and closely "further a specific statu-
tory mandate," 467 U. S., at 367. The Commission says
that its rule advances the ICC's "mandate to determine
the information that is required to be disclosed in a tariff"
to "ensure that tariffs reveal the applicable rates." Brief
for United States et al. as Amici Curiae 24 (citing 49
U. S. C. §§ 10762(a)(1) and (b)(2)).3 But as the Seventh Cir-
cuit observed:
"[I]t is difficult to see how failure to [maintain in effect]
a power of attorney [with the HGCB] would adversely
affect the uniformity of pricing. The true purpose of
the participation rule may be the facilitation of the ICC's
ability to monitor the shipping market. Requiring that
every publisher of a tariff list all the other carriers that
have also signed onto that tariff enables the ICC to see,
at a glance, how many carriers' rates are being con-
trolled by a single tariff. Publishing that list provides
no new information that is not available by inspecting
each carrier's tariff individually-it simply collects it in
one convenient place." Brizendine, supra, at 464.
Even if the Commission's action here furthered a statutory
mandate, voiding a tariff after its effective date would not
"be directly and closely tied to that mandate" under Ameri-
can Trucking. 467 U. S., at 367. Nullification of a rate can
be an extremely harsh remedy, for it "renders the tariff void
ab initio. As a result, whatever tariff was in effect prior to
the adoption of the rejected rate becomes the applicable tar-
3 Subsection 10762(a)(1) states that "[t]he Commission may prescribe
other information that motor common carriers shall include in their tar-
iffs"; subsection (b)(2) provides that "[t]he carriers that are parties to a
joint tariff, other than the carrier filing it, must file a concurrence or
acceptance of the tariff with the Commission but are not required to file
a copy of the tariff."
511us2$49P 11-08-97 20:03:45 PAGES OPINPGT
Cite as: 511 U. S. 431 (1994) 461
Ginsburg, J., dissenting
iff for the [relevant] period." Id., at 358 (citation omitted);
id., at 361.4 Accordingly, when the Court upheld the Com-
mission's action in American Trucking as "directly and
closely" tailored to a specific statutory mandate, see n. 1,
supra, it stressed that other less drastic remedies, like ac-
tual damages, would have been ineffective checks. See 467
U. S., at 369Â370. Here, by contrast, there is no sugges-
tion that relief of another kind would not do to check any
cognizable injury to shippers or mileage guide publishers.
See Overland Express, supra, at 362 ("[I]f shippers or mile-
age guide publishers were to show that they were injured,
damages presumably would be adequate to remedy the in-
jury."); see also Brizendine, supra, at 465.
* * *
It may be that "the Court stumbled badly in Maislin In-
dustries." See ante, at 444 (Stevens, J., concurring). But
the way to correct that error, if error it was, is to overrule
the unsatisfactory precedent, not to feign fidelity to it while
avoiding its essential meaning.
For the reasons stated here, and more fully developed in
Brizendine and Overland Express, I respectfully dissent.
4 Ironically, the Court's theory in this case-that Riss' tariff was valid
and effective until its participation in the HGCB Mileage Guide lapsed,
see ante, at 442-should result in application of Riss' "prior" effective
tariff, i. e., the same tariff, and not the contract rate, as the Court and the
Commission assume.
511us2$50Z 11-03-97 21:51:12 PAGES OPINPGT
462 OCTOBER TERM, 1993
Syllabus
DALTON, SECRETARY OF THE NAVY, et al. v.
SPECTER et al.
certiorari to the united states court of appeals for
the third circuit
No. 93Â289. Argued March 2, 1994-Decided May 23, 1994
Respondents filed this action under the Administrative Procedure Act
(APA) and the Defense Base Closure and Realignment Act of 1990 (1990
Act), seeking to enjoin the Secretary of Defense (Secretary) from carry-
ing out the President's decision, pursuant to the 1990 Act, to close the
Philadelphia Naval Shipyard. The District Court dismissed the com-
plaint on the alternative grounds that the 1990 Act itself precluded judi-
cial review and that the political question doctrine foreclosed judicial
intervention. In affirming in part and reversing in part, the Court of
Appeals held that judicial review of the closure decision was available
to ensure that the Secretary and the Defense Base Closure and Realign-
ment Commission (Commission), as participants in the selection process,
had complied with the procedural mandates specified by Congress. The
court also ruled that this Court's recent decision in Franklin v. Massa-
chusetts, 505 U. S. 788, did not affect the reviewability of respondents'
procedural claims because adjudging the President's actions for compli-
ance with the 1990 Act was a form of constitutional review sanctioned
by Franklin.
Held: Judicial review is not available for respondents' claims.
Pp. 468Â477.
(a) A straightforward application of Franklin demonstrates that
respondents' claims are not reviewable under the APA. The actions of
the Secretary and the Commission are not reviewable "final agency
actions" within the meaning of the APA, since their reports recommend-
ing base closings carry no direct consequences. See 505 U. S., at 798.
Rather, the action that "will directly affect" bases, id., at 797, is taken
by the President when he submits his certificate of approval of the rec-
ommendations to Congress. That the President cannot pick and choose
among bases, and must accept or reject the Commission's closure pack-
age in its entirety, is immaterial; it is nonetheless the President, not the
Commission, who takes the final action that affects the military installa-
tions. See id., at 799. The President's own actions, in turn, are not
reviewable under the APA because he is not an "agency" under that
Act. See id., at 801. Pp. 468Â471.
(b) The Court of Appeals erred in ruling that the President's base
closure decisions are reviewable for constitutionality. Every action by
511us2$50Z 11-03-97 21:51:12 PAGES OPINPGT
Cite as: 511 U. S. 462 (1994) 463
Syllabus
the President, or by another elected official, in excess of his statutory
authority is not ipso facto in violation of the Constitution, as the Court
of Appeals seemed to believe. On the contrary, this Court's decisions
have often distinguished between claims of constitutional violations and
claims that an official has acted in excess of his statutory authority.
See, e. g., Larson v. Domestic and Foreign Commerce Corp., 337 U. S.
682, 691, n. 11; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579,
585, 587, distinguished. Such decisions demonstrate that the claim at
issue here-that the President violated the 1990 Act's terms by accept-
ing flawed recommendations-is not a "constitutional" claim subject to
judicial review under the exception recognized in Franklin, but is sim-
ply a statutory claim. The 1990 Act does not limit the President's dis-
cretion in approving or disapproving the Commission's recommenda-
tions, require him to determine whether the Secretary or Commission
committed procedural violations in making recommendations, prohibit
him from approving recommendations that are procedurally flawed, or,
indeed, prevent him from approving or disapproving recommendations
for whatever reason he sees fit. Where, as here, a statute commits
decisionmaking to the President's discretion, judicial review of his deci-
sion is not available. See, e. g., Chicago & Southern Air Lines, Inc. v.
Waterman S. S. Corp., 333 U. S. 103, 113Â114. Pp. 471Â476.
(c) Contrary to respondents' contention, failure to allow judicial re-
view here does not result in the virtual repudiation of Marbury v. Madi-
son, 1 Cranch 137, and nearly two centuries of constitutional adjudica-
tion. The judicial power conferred by Article III is upheld just as
surely by withholding judicial relief where Congress has permissibly
foreclosed it, as it is by granting such relief where authorized by the
Constitution or by statute. Pp. 476Â477.
995 F. 2d 404, reversed.
Rehnquist, C. J., delivered the opinion of the Court, Part II of which
was unanimous, and in the remainder of which O'Connor, Scalia, Ken-
nedy, and Thomas, JJ., joined. Blackmun, J., filed an opinion concurring
in part and concurring in the judgment, post, p. 477. Souter, J., filed
an opinion concurring in part and concurring in the judgment, in which
Blackmun, Stevens, and Ginsburg, JJ., joined, post, p. 478.
Solicitor General Days argued the cause for petitioners.
With him on the briefs were Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, John F. Man-
ning, and Douglas N. Letter.
Senator Arlen Specter, pro se, argued the cause for re-
spondents. With him on the brief were Bruce W. Kauff-
511us2$50Z 11-03-97 21:51:12 PAGES OPINPGT
464 DALTON v. SPECTER
Opinion of the Court
man, Mark J. Levin, Camille Spinello Andrews, and Thomas
E. Groshens.*
Chief Justice Rehnquist delivered the opinion of the
Court.
Respondents sought to enjoin the Secretary of Defense
(Secretary) from carrying out a decision by the President to
close the Philadelphia Naval Shipyard.1 This decision was
made pursuant to the Defense Base Closure and Realignment
Act of 1990 (1990 Act or Act), 104 Stat. 1808, as amended,
note following 10 U. S. C. § 2687 (1988 ed., Supp. IV). The
Court of Appeals held that judicial review of the decision was
available to ensure that various participants in the selection
process had complied with procedural mandates specified by
Congress. We hold that such review is not available.
The decision to close the shipyard was the end result of
an elaborate selection process prescribed by the 1990 Act.
Designed "to provide a fair process that will result in the
timely closure and realignment of military installations in-
side the United States," § 2901(b),2 the Act provides for three
*Robert J. Cynkar, John B. Rhinelander, Alexander W. Joel, Bernard
Petrie, and Steven T. Walther filed a brief for Business Executives for
National Security as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of
New York by G. Oliver Koppell, Attorney General, Jerry Boone, Solicitor
General, Peter H. Schiff, Deputy Solicitor General, and Alan S. Kaufman,
Edward M. Scher, and Howard L. Zwickel, Assistant Attorneys General;
and for Public Citizen by Patti A. Goldman, Alan B. Morrison, and Paul
R. Q. Wolfson.
1 Respondents are shipyard employees and their unions; Members of
Congress from Pennsylvania and New Jersey; the States of Pennsylvania,
New Jersey, and Delaware, and officials of those States; and the city of
Philadelphia. Petitioners are the Secretary of Defense; the Secretary of
the Navy; and the Defense Base Closure and Realignment Commission
and its members.
2 For ease of reference, all citations to the 1990 Act are to the relevant
sections of the Act as it appears in note following 10 U. S. C. § 2687 (1988
ed., Supp. IV).
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
Cite as: 511 U. S. 462 (1994) 465
Opinion of the Court
successive rounds of base closings-in 1991, 1993, and 1995,
§ 2903(c)(1). For each round, the Secretary must prepare
closure and realignment recommendations, based on selec-
tion criteria he establishes after notice and an opportunity
for public comment. §§ 2903(b) and (c).
The Secretary submits his recommendations to Congress
and to the Defense Base Closure and Realignment Commis-
sion (Commission), an independent body whose eight mem-
bers are appointed by the President, with the advice and
consent of the Senate. §§ 2903(c)(1); 2902(a) and (c)(1)(A).
The Commission must then hold public hearings and prepare
a report, containing both an assessment of the Secretary's
recommendations and the Commission's own recommenda-
tions for base closures and realignments. §§ 2903(d)(1) and
(2). Within roughly three months of receiving the Secre-
tary's recommendations, the Commission has to submit its
report to the President. § 2903(d)(2)(A).
Within two weeks of receiving the Commission's report,
the President must decide whether to approve or disap-
prove, in their entirety, the Commission's recommendations.
§§ 2903(e)(1)Â(3). If the President disapproves, the Com-
mission has roughly one month to prepare a new report and
submit it to the President. § 2903(e)(3). If the President
again disapproves, no bases may be closed that year under
the Act. § 2903(e)(5). If the President approves the initial
or revised recommendations, the President must submit the
recommendations, along with his certification of approval,
to Congress. §§ 2903(e)(2) and (e)(4). Congress may, within
45 days of receiving the President's certification (or by the
date Congress adjourns for the session, whichever is ear-
lier), enact a joint resolution of disapproval. §§ 2904(b);
2908. If such a resolution is passed, the Secretary may not
carry out any closures pursuant to the Act; if such a reso-
lution is not passed, the Secretary must close all military
installations recommended for closure by the Commission.
§§ 2904(a) and (b)(1).
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
466 DALTON v. SPECTER
Opinion of the Court
In April 1991, the Secretary recommended the closure or
realignment of a number of military installations, including
the Philadelphia Naval Shipyard. After holding public
hearings in Washington, D. C., and Philadelphia, the Com-
mission recommended closure or realignment of 82 bases.
The Commission did not concur in all of the Secretary's rec-
ommendations, but it agreed that the Philadelphia Naval
Shipyard should be closed. In July 1991, President Bush
approved the Commission's recommendations, and the House
of Representatives rejected a proposed joint resolution of
disapproval by a vote of 364 to 60.
Two days before the President submitted his certifica-
tion of approval to Congress, respondents filed this action
under the Administrative Procedure Act (APA), 5 U. S. C.
§ 701 et seq., and the 1990 Act. Their complaint contained
three counts, two of which remain at issue.3 Count I alleged
that the Secretaries of Navy and Defense violated substan-
tive and procedural requirements of the 1990 Act in recom-
mending closure of the Philadelphia Naval Shipyard. Count
II made similar allegations regarding the Commission's rec-
ommendations to the President, asserting specifically that,
inter alia, the Commission used improper criteria, failed to
place certain information in the record until after the close
of public hearings, and held closed meetings with the Navy.
The United States District Court for the Eastern District
of Pennsylvania dismissed the complaint in its entirety, on
the alternative grounds that the 1990 Act itself precluded
3 Respondents' third count alleged that petitioners had violated the due
process rights of respondent shipyard employees and respondent unions.
In its initial decision, the United States Court of Appeals for the Third
Circuit held that the shipyard employees and unions had no protectible
property interest in the shipyard's continued operation and thus had failed
to state a claim under the Due Process Clause. Specter v. Garrett, 971
F. 2d 936, 955Â956 (1992). Respondents did not seek further review of
that ruling, and it is not at issue here.
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
Cite as: 511 U. S. 462 (1994) 467
Opinion of the Court
judicial review and that the political question doctrine fore-
closed judicial intervention. Specter v. Garrett, 777 F. Supp.
1226 (1991). A divided panel of the United States Court of
Appeals for the Third Circuit affirmed in part and reversed
in part. Specter v. Garrett, 971 F. 2d 936 (1992) (Specter I).
The Court of Appeals first acknowledged that the actions
challenged by respondents were not typical of the "agency
actions" reviewed under the APA, because the 1990 Act con-
templates joint decisionmaking among the Secretary, Com-
mission, President, and Congress. Id., at 944Â945. The
Court of Appeals then reasoned that because respondents
sought to enjoin the implementation of the President's deci-
sion, respondents (who had not named the President as a
defendant) were asking the Court of Appeals "to review a
presidential decision." Id., at 945. The Court of Appeals
decided that there could be judicial review of the President's
decision because the "actions of the President have never
been considered immune from judicial review solely because
they were taken by the President." Ibid. It held that cer-
tain procedural claims, such as respondents' claim that the
Secretary failed to transmit to the Commission all of the in-
formation he used in making his recommendations, and their
claim that the Commission did not hold public hearings as
required by the Act, were thus reviewable. Id., at 952Â953.
The dissenting judge took the view that the 1990 Act pre-
cluded judicial review of all statutory claims, procedural and
substantive. Id., at 956Â961.
Shortly after the Court of Appeals issued its opinion, we
decided Franklin v. Massachusetts, 505 U. S. 788 (1992), in
which we addressed the existence of "final agency action" in
a suit seeking APA review of the decennial reapportionment
of the House of Representatives. The Census Act requires
the Secretary of Commerce to submit a census report to the
President, who then certifies to Congress the number of
Representatives to which each State is entitled pursuant to
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
468 DALTON v. SPECTER
Opinion of the Court
a statutory formula. We concluded both that the Secre-
tary's report was not "final agency action" reviewable under
the APA, and that the APA does not apply to the President.
Id., at 796Â801. After we rendered our decision in Frank-
lin, petitioners sought our review in this case. Because of
the similarities between Franklin and this case, we granted
the petition for certiorari, vacated the judgment of the Court
of Appeals, and remanded for further consideration in light
of Franklin. O'Keefe v. Specter, 506 U. S. 969 (1992).
On remand, the same divided panel of the Court of Ap-
peals adhered to its earlier decision, and held that Franklin
did not affect the reviewability of respondents' procedural
claims. Specter v. Garrett, 995 F. 2d 404 (1993) (Specter II).
Although apparently recognizing that APA review was un-
available, the Court of Appeals felt that adjudging the Presi-
dent's actions for compliance with the 1990 Act was a "form
of constitutional review," and that Franklin sanctioned such
review. 995 F. 2d, at 408Â409. Petitioners again sought
our review, and we granted certiorari. 510 U. S. 930 (1993).
We now reverse.
I
We begin our analysis on common ground with the Court
of Appeals. In Specter II, that court acknowledged, at least
tacitly, that respondents' claims are not reviewable under
the APA. 995 F. 2d, at 406. A straightforward applica-
tion of Franklin to this case demonstrates why this is so.
Franklin involved a suit against the President, the Secre-
tary of Commerce, and various public officials, challenging
the manner in which seats in the House of Representatives
had been apportioned among the States. 505 U. S., at 790.
The plaintiffs challenged the method used by the Secretary
of Commerce in preparing her census report, particularly
the manner in which she counted federal employees work-
ing overseas. The plaintiffs raised claims under both the
APA and the Constitution. In reviewing the former, we
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
Cite as: 511 U. S. 462 (1994) 469
Opinion of the Court
first sought to determine whether the Secretary's action,
in submitting a census report to the President, was "final"
for purposes of APA review. (The APA provides for judi-
cial review only of "final agency action." 5 U. S. C. § 704
(emphasis added).) Because the President reviewed (and
could revise) the Secretary's report, made the apportion-
ment calculations, and submitted the final apportionment
report to Congress, we held that the Secretary's report was
"not final and therefore not subject to review." 505 U. S.,
at 798.
We next held that the President's actions were not review-
able under the APA, because the President is not an
"agency" within the meaning of the APA. Id., at 801 ("As
the APA does not expressly allow review of the President's
actions, we must presume that his actions are not subject to
its requirements"). We thus concluded that the reappor-
tionment determination was not reviewable under the stand-
ards of the APA. Ibid. In reaching our conclusion, we
noted that the "President's actions may still be reviewed for
constitutionality." Ibid. (citing Youngstown Sheet & Tube
Co. v. Sawyer, 343 U. S. 579 (1952), and Panama Refining Co.
v. Ryan, 293 U. S. 388 (1935)).
In this case, respondents brought suit under the APA,
alleging that the Secretary and the Commission did not
follow the procedural mandates of the 1990 Act. But here,
as in Franklin, the prerequisite to review under the APA-
"final agency action"-is lacking. The reports submitted by
the Secretary and the Commission, like the report of the
Secretary of Commerce in Franklin, "carr[y] no direct
consequences" for base closings. 505 U. S., at 798. The
action that "will directly affect" the military bases, id., at
797, is taken by the President, when he submits his certifica-
tion of approval to Congress. Accordingly, the Secretary's
and Commission's reports serve "more like a tentative rec-
ommendation than a final and binding determination." Id.,
at 798. The reports are, "like the ruling of a subordinate
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470 DALTON v. SPECTER
Opinion of the Court
official, not final and therefore not subject to review." Ibid.
(internal quotation marks and citation omitted). The ac-
tions of the President, in turn, are not reviewable under the
APA because, as we concluded in Franklin, the President is
not an "agency." See id., at 800Â801.
Respondents contend that the 1990 Act differs signifi-
cantly from the Census Act at issue in Franklin, and that
our decision in Franklin therefore does not control the
question whether the Commission's actions here are final.
Respondents appear to argue that the President, under the
1990 Act, has little authority regarding the closure of bases.
See Brief for Respondents 29 (pointing out that the 1990
Act does not allow "the President to ignore, revise or amend
the Commission's list of closures. He is only permitted to
accept or reject the Commission's closure package in its
entirety"). Consequently, respondents continue, the Com-
mission's report must be regarded as final. This argument
ignores the ratio decidendi of Franklin. See 505 U. S., at
800Â801.
First, respondents underestimate the President's author-
ity under the Act, and the importance of his role in the base
closure process. Without the President's approval, no bases
are closed under the Act, see § 2903(e)(5); the Act, in turn,
does not by its terms circumscribe the President's discretion
to approve or disapprove the Commission's report. Cf. id.,
at 799. Second, and more fundamentally, respondents' argu-
ment ignores "[t]he core question" for determining finality:
"whether the agency has completed its decisionmaking proc-
ess, and whether the result of that process is one that will
directly affect the parties." Id., at 797. That the President
cannot pick and choose among bases, and must accept or re-
ject the entire package offered by the Commission, is imma-
terial. What is crucial is the fact that "[t]he President, not
the [Commission], takes the final action that affects" the mili-
tary installations. Id., at 799. Accordingly, we hold that
the decisions made pursuant to the 1990 Act are not review-
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Cite as: 511 U. S. 462 (1994) 471
Opinion of the Court
able under the APA. Accord, Cohen v. Rice, 992 F. 2d 376
(CA1 1993).
Although respondents apparently sought review exclu-
sively under the APA,4 the Court of Appeals nevertheless
sought to determine whether non-APA review, based on
either common law or constitutional principles, was available.
It focused, moreover, on whether the President's actions
under the 1990 Act were reviewable, even though respond-
ents did not name the President as a defendant. The Court
of Appeals reasoned that because respondents sought to en-
join the implementation of the President's decision, the legal-
ity of that decision would determine whether an injunction
should issue. See Specter II, 995 F. 2d, at 407; Specter I,
971 F. 2d, at 936. In this rather curious fashion, the case
was transmuted into one concerning the reviewability of
Presidential decisions.
II
Seizing upon our statement in Franklin that Presidential
decisions are reviewable for constitutionality, the Court of
Appeals asserted that "there is a constitutional aspect to the
exercise of judicial review in this case-an aspect grounded
in the separation of powers doctrine." Specter II, supra,
at 408. It reasoned, relying primarily on Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), that when-
ever the President acts in excess of his statutory authority,
he also violates the constitutional separation-of-powers doc-
trine. Thus, judicial review must be available to determine
whether the President has statutory authority "for whatever
action" he takes. 995 F. 2d, at 409. In terms of this case,
the Court of Appeals concluded that the President's statu-
tory authority to close and realign bases would be lacking
if the Secretary and Commission violated the procedural
4 See Specter v. Garrett, 995 F. 2d 404, 412 (1993) (Alito, J., dissenting);
see also Specter v. Garrett, 777 F. Supp. 1226, 1227 (ED Pa. 1991) (respond-
ents "have asserted that their right to judicial review . . . arises under the
Administrative Procedure Act").
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
472 DALTON v. SPECTER
Opinion of the Court
requirements of the Act in formulating their recommenda-
tions. Ibid.
Accepting for purposes of decision here the propriety of
examining the President's actions, we nonetheless believe
that the Court of Appeals' analysis is flawed. Our cases do
not support the proposition that every action by the Presi-
dent, or by another executive official, in excess of his statu-
tory authority is ipso facto in violation of the Constitution.
On the contrary, we have often distinguished between claims
of constitutional violations and claims that an official has
acted in excess of his statutory authority. See, e. g., Wheel-
din v. Wheeler, 373 U. S. 647, 650Â652 (1963) (distinguishing
between "rights which may arise under the Fourth Amend-
ment" and "a cause of action for abuse of the [statutory] sub-
poena power by a federal officer"); Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388, 396Â397 (1971) (dis-
tinguishing between "actions contrary to [a] constitutional
prohibition," and those "merely said to be in excess of the
authority delegated . . . by the Congress").
In Larson v. Domestic and Foreign Commerce Corp., 337
U. S. 682, 691, n. 11 (1949), for example, we held that sover-
eign immunity would not shield an executive officer from suit
if the officer acted either "unconstitutionally or beyond his
statutory powers." (Emphasis added.) If all executive ac-
tions in excess of statutory authority were ipso facto uncon-
stitutional, as the Court of Appeals seemed to believe, there
would have been little need in Larson for our specifying un-
constitutional and ultra vires conduct as separate categories.
See also Dugan v. Rank, 372 U. S. 609, 621Â622 (1963); Har-
mon v. Brucker, 355 U. S. 579, 581 (1958) ("In keeping with
our duty to avoid deciding constitutional questions presented
unless essential to proper disposition of a case, we look first
to petitioners' non-constitutional claim that respondent
[Secretary of the Army] acted in excess of powers granted
him by Congress" (emphasis added)).
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Opinion of the Court
Our decision in Youngstown, supra, does not suggest a
different conclusion. In Youngstown, the Government dis-
claimed any statutory authority for the President's seizure
of steel mills. See 343 U. S., at 585 ("[W]e do not under-
stand the Government to rely on statutory authorization for
this seizure"). The only basis of authority asserted was the
President's inherent constitutional power as the Executive
and the Commander in Chief of the Armed Forces. Id., at
587. Because no statutory authority was claimed, the case
necessarily turned on whether the Constitution authorized
the President's actions. Youngstown thus involved the con-
ceded absence of any statutory authority, not a claim that
the President acted in excess of such authority. The case
cannot be read for the proposition that an action taken by
the President in excess of his statutory authority necessarily
violates the Constitution.5
The decisions cited above establish that claims simply al-
leging that the President has exceeded his statutory author-
ity are not "constitutional" claims, subject to judicial review
5 Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), the other case
(along with Youngstown) cited in Franklin v. Massachusetts, 505 U. S. 788
(1992), as an example of when we have reviewed the constitutionality
of the President's actions, likewise did not involve a claim that the Presi-
dent acted in excess of his statutory authority. Panama Refining in-
volved the National Industrial Recovery Act, which delegated to the Pres-
ident the authority to ban interstate transportation of oil produced in
violation of state production and marketing limits. See 293 U. S., at 406.
We struck down an Executive Order promulgated under that Act not be-
cause the President had acted beyond his statutory authority, but rather
because the Act unconstitutionally delegated Congress' authority to the
President. See id., at 430. As the Court pointed out, we were "not deal-
ing with action which, appropriately belonging to the executive province,
is not the subject of judicial review, or with the presumptions attach-
ing to executive action. To repeat, we are concerned with the question
of the delegation of legislative power." Id., at 432 (footnote omitted).
Respondents have not alleged that the 1990 Act in itself amounts to an
unconstitutional delegation of authority to the President.
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
474 DALTON v. SPECTER
Opinion of the Court
under the exception recognized in Franklin.6 As this case
demonstrates, if every claim alleging that the President ex-
ceeded his statutory authority were considered a constitu-
tional claim, the exception identified in Franklin would be
broadened beyond recognition. The distinction between
claims that an official exceeded his statutory authority, on
the one hand, and claims that he acted in violation of the
Constitution, on the other, is too well established to permit
this sort of evisceration.
So the claim raised here is a statutory one: The President
is said to have violated the terms of the 1990 Act by accept-
ing procedurally flawed recommendations. The exception
identified in Franklin for review of constitutional claims
thus does not apply in this case. We may assume for the
sake of argument that some claims that the President has
violated a statutory mandate are judicially reviewable out-
side the framework of the APA. See Dames & Moore v.
Regan, 453 U. S. 654, 667 (1981). But longstanding author-
ity holds that such review is not available when the statute
in question commits the decision to the discretion of the
President.
As we stated in Dakota Central Telephone Co. v. South
Dakota ex rel. Payne, 250 U. S. 163, 184 (1919), where a claim
"concerns not a want of [Presidential] power, but a mere
excess or abuse of discretion in exerting a power given,
it is clear that it involves considerations which are be-
yond the reach of judicial power. This must be since,
as this court has often pointed out, the judicial may not
invade the legislative or executive departments so as to
correct alleged mistakes or wrongs arising from as-
serted abuse of discretion."
6 As one commentator has observed, in cases in which the President
concedes, either implicitly or explicitly, that the only source of his au-
thority is statutory, no "constitutional question whatever" is raised.
J. Choper, Judicial Review and the National Political Process 316 (1980).
Rather, "the cases concern only issues of statutory interpretation." Ibid.
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
Cite as: 511 U. S. 462 (1994) 475
Opinion of the Court
In a case analogous to the present one, Chicago & South-
ern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103
(1948), an airline denied a certificate from the Civil Aeronau-
tics Board to establish an international air route sought judi-
cial review of the denial. Although the Civil Aeronautics
Act, 49 U. S. C. § 646 (1946 ed.), generally allowed for judicial
review of the Board's decisions, and did not explicitly exclude
judicial review of decisions involving international routes of
domestic airlines, we nonetheless held that review was un-
available. 333 U. S., at 114.
In reasoning pertinent to this case, we first held that the
Board's certification was not reviewable because it was not
final until approved by the President. See id., at 112Â114
("[O]rders of the Board as to certificates for overseas or for-
eign air transportation are not mature and are therefore not
susceptible of judicial review at any time before they are
finalized by Presidential approval"). We then concluded
that the President's decision to approve or disapprove the
orders was not reviewable, because "the final orders embody
Presidential discretion as to political matters beyond the
competence of the courts to adjudicate." See id., at 114.
We fully recognized that the consequence of our decision was
to foreclose judicial review:
"The dilemma faced by those who demand judicial re-
view of the Board's order is that before Presidential
approval it is not a final determination . . . and after
Presidential approval the whole order, both in what
is approved without change as well as in amendments
which he directs, derives its vitality from the exercise
of unreviewable Presidential discretion." Id., at 113
(emphasis added).
Although the President's discretion in Waterman S. S. Corp.
derived from the Constitution, we do not believe the result
should be any different when the President's discretion de-
rives from a valid statute. See Dakota Central Telephone
511us2$50H 11-03-97 21:51:12 PAGES OPINPGT
476 DALTON v. SPECTER
Opinion of the Court
Co., supra, at 184; United States v. George S. Bush & Co.,
310 U. S. 371, 380 (1940).
The 1990 Act does not at all limit the President's discre-
tion in approving or disapproving the Commission's recom-
mendations. See § 2903(e); see also Specter II, 995 F. 2d,
at 413 (Alito, J., dissenting). The Third Circuit seemed to
believe that the President's authority to close bases de-
pended on the Secretary's and Commission's compliance with
statutory procedures. This view of the statute, however,
incorrectly conflates the duties of the Secretary and Commis-
sion with the authority of the President. The President's
authority to act is not contingent on the Secretary's and
Commission's fulfillment of all the procedural requirements
imposed upon them by the 1990 Act. Nothing in § 2903(e)
requires the President to determine whether the Secretary
or Commission committed any procedural violations in mak-
ing their recommendations, nor does § 2903(e) prohibit the
President from approving recommendations that are proce-
durally flawed. Indeed, nothing in § 2903(e) prevents the
President from approving or disapproving the recommenda-
tions for whatever reason he sees fit. See § 2903(e); Specter
II, 995 F. 2d, at 413 (Alito, J., dissenting).
How the President chooses to exercise the discretion Con-
gress has granted him is not a matter for our review. See
Waterman S. S. Corp., supra; Dakota Central Telephone Co.,
supra, at 184. As we stated in George S. Bush & Co., supra,
at 380, "[n]o question of law is raised when the exercise of
[the President's] discretion is challenged."
III
In sum, we hold that the actions of the Secretary and the
Commission cannot be reviewed under the APA because they
are not "final agency actions." The actions of the President
cannot be reviewed under the APA because the President is
not an "agency" under that Act. The claim that the Presi-
dent exceeded his authority under the 1990 Act is not a con-
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Cite as: 511 U. S. 462 (1994) 477
Opinion of Blackmun, J.
stitutional claim, but a statutory one. Where a statute, such
as the 1990 Act, commits decisionmaking to the discretion
of the President, judicial review of the President's decision
is not available.
Respondents tell us that failure to allow judicial review
here would virtually repudiate Marbury v. Madison, 1
Cranch 137 (1803), and nearly two centuries of constitutional
adjudication. But our conclusion that judicial review is not
available for respondents' claim follows from our inter-
pretation of an Act of Congress, by which we and all fed-
eral courts are bound. The judicial power of the United
States conferred by Article III of the Constitution is upheld
just as surely by withholding judicial relief where Congress
has permissibly foreclosed it, as it is by granting such relief
where authorized by the Constitution or by statute.
The judgment of the Court of Appeals is
Reversed.
Justice Blackmun, concurring in part and concurring in
the judgment.
I did not join the majority opinion in Franklin v. Massa-
chusetts, 505 U. S. 788 (1992), and would not extend that un-
fortunate holding to the facts of this case. I nevertheless
agree that the Defense Base Closure and Realignment Act
of 1990 "preclud[es] judicial review of a base-closing deci-
sion," post, at 484, and accordingly join Justice Souter's
opinion.
I write separately to underscore what I understand to be
the limited reach of today's decision. The majority and con-
curring opinions conclude that the President acts within his
unreviewable discretion in accepting or rejecting a recom-
mended base-closing list, and that an aggrieved party may
not enjoin closure of a duly selected base as a result of al-
leged error in the decisionmaking process. This conclusion,
however, does not foreclose judicial review of a claim, for
example, that the President added a base to the Defense
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478 DALTON v. SPECTER
Opinion of Souter, J.
Base Closure and Realignment Commission's (Commission's)
list in contravention of his statutory authority. Nor does
either opinion suggest that judicial review would be unavail-
able for a timely claim seeking direct relief from a procedural
violation, such as a suit claiming that a scheduled meeting of
the Commission should be public, see § 2903(d), note follow-
ing 10 U. S. C. § 2687 (1988 ed., Supp. IV), or that the Secre-
tary of Defense should publish the proposed selection crite-
ria and provide an opportunity for public comment, §§ 2903(b)
and (c). Such a suit could be timely brought and adjudicated
without interfering with Congress' intent to preclude judicial
"cherry pick[ing]" or frustrating the statute's expedited deci-
sionmaking schedule. See post, at 481. I also do not under-
stand the majority's Franklin analysis to foreclose such a
suit, since a decision to close the Commission's hearing, for
example, would " `directly affect' " the rights of interested
parties independent of any ultimate Presidential review.
See ante, at 470; cf. FCC v. ITT World Communications,
Inc., 466 U. S. 463 (1984).
With the understanding that neither a challenge to ultra
vires exercise of the President's statutory authority nor a
timely procedural challenge is precluded, I join Justice Sou-
ter's concurrence and Part II of the opinion of the Court.
Justice Souter, with whom Justice Blackmun, Jus-
tice Stevens, and Justice Ginsburg join, concurring in
part and concurring in the judgment.
I join Part II of the Court's opinion because I think it is
clear that the President acted wholly within the discretion
afforded him by the Defense Base Closure and Realignment
Act of 1990 (Act), and because respondents pleaded no consti-
tutional claim against the President, indeed, no claim against
the President at all. As the Court explains, the Act grants
the President unfettered discretion to accept the Commis-
sion's base-closing report or to reject it, for a good reason,
a bad reason, or no reason. See ante, at 476.
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Opinion of Souter, J.
It is not necessary to reach the question the Court answers
in Part I, whether the Defense Base Closure and Realign-
ment Commission's (Commission's) report is final agency ac-
tion, because the text, structure, and purpose of the Act com-
pel the conclusion that judicial review of the Commission's
or the Secretary's compliance with it is precluded. There
is, to be sure, a "strong presumption that Congress did not
mean to prohibit all judicial review." Bowen v. Michigan
Academy of Family Physicians, 476 U. S. 667, 672 (1986)
(internal quotation marks and citation omitted). But al-
though no one feature of the Act, taken alone, is enough to
overcome that strong presumption, I believe that the combi-
nation present in this unusual legislative scheme suffices.
In adopting the Act, Congress was intimately familiar with
repeated, unsuccessful, efforts to close military bases in a
rational and timely manner. See generally Defense Base
Closure and Realignment Commission, Report to the Presi-
dent 1991.1 That history of frustration is reflected in the
Act's text and intricate structure, which plainly express con-
gressional intent that action on a base-closing package be
quick and final, or no action be taken at all.
At the heart of the distinctive statutory regime, Congress
placed a series of tight and rigid deadlines on administrative
review and Presidential action, embodied in provisions for
three biennial rounds of base closings, in 1991, 1993, and 1995
(the "base-closing years"), §§ 2903(b) and (c), note following
10 U. S. C. § 2687 (1988 ed., Supp. IV), with unbending dead-
lines prescribed for each round. The Secretary is obliged to
forward base-closing recommendations to the Commission,
1 See also H. R. Conf. Rep. No. 101Â923, p. 705 (1990) (Earlier base clo-
sures had "take[n] a considerable period of time and involve[d] numerous
opportunities for challenges in court"); id., at 707 (Act "would considerably
enhance the ability of the Department of Defense . . . promptly [to] imple-
ment proposals for base closures and realignment"); H. R. Rep. No. 101Â
665, p. 384 (1990) ("Expedited procedures . . . are essential to make the
base closure process work").
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480 DALTON v. SPECTER
Opinion of Souter, J.
no later, respectively, than April 15, 1991, March 15, 1993,
and March 15, 1995. § 2903(c). The Comptroller General
must submit a report to Congress and the Commission eval-
uating the Secretary's recommendations by April 15 of each
base-closing year. § 2903(d)(5). The Commission must then
transmit a report to the President setting out its own recom-
mendations by July 1 of each of those years. § 2903(d)(2).
And in each such year, the President must, no later than
July 15, either approve or disapprove the Commission's rec-
ommendations. § 2903(e)(1). If the President disapproves
the Commission's report, the Commission must send the
President a revised list of recommended base closings, no
later than August 15. § 2903(e)(3). In that event, the Presi-
dent will have until September 1 to approve the Commis-
sion's revised report; if the President fails to approve the
report by that date, then no bases will be closed that year.
§ 2903(e)(5). If, however, the President approves a Commis-
sion report within either of the times allowed, the report
becomes effective unless Congress disapproves the Presi-
dent's decision by joint resolution (passed according to provi-
sions for expedited and circumscribed internal procedures)
within 45 days. §§ 2904(b)(1)(A), 2908.2
The Act requires that a decision about a base-closing pack-
age, once made, be implemented promptly. Once Congress
has declined to disapprove the President's base-closing de-
cision, the Secretary of Defense "shall . . . close all mil-
itary installations recommended for closure." § 2904(a).
The Secretary is given just two years after the President's
transmittal to Congress to begin the complicated process of
closing the listed bases and must complete each base-closing
round within six years of the President's transmittal. See
§§ 2904, 2905.
2 To enable Congress to perform this prompt review, the Act requires
the Secretary, the Comptroller General, and the Commission to provide
Congress with information prior to the completion of Executive Branch
review. See §§ 2903(a)(1), (b)(2), (c)(1), and (d)(3).
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Opinion of Souter, J.
It is unlikely that Congress would have insisted on such a
timetable for decision and implementation if the base-closing
package would be subject to litigation during the periods
allowed, in which case steps toward closing would either
have to be delayed in deference to the litigation, or the litiga-
tion might be rendered moot by completion of the closing
process. That unlikelihood is underscored by the provision
for disbanding the Commission at the end of each base-
closing decision round, and for terminating it automatically
at the end of 1995, whether or not any bases have been se-
lected to be closed. If Congress intended judicial review of
individual base-closing decisions, it would be odd indeed to
disband biennially, and at the end of three rounds to termi-
nate, the only entity authorized to provide further review
and recommendations.
The point that judicial review was probably not intended
emerges again upon considering the linchpin of this unusual
statutory scheme, which is its all-or-nothing feature. The
President and Congress must accept or reject the biennial
base-closing recommendations as a single package. See
§§ 2903(e)(2), (e)(3), (e)(4) (as to the President); §§ 2908(a)(2)
and (d)(2) (as to Congress). Neither the President nor Con-
gress may add a base to the list or "cherry pick" one from
it. This mandate for prompt acceptance or rejection of the
entire package of base closings can only represent a con-
sidered allocation of authority between the Executive and
Legislative Branches to enable each to reach important, but
politically difficult, objectives. Indeed, the wisdom and ulti-
mate political acceptability of a decision to close any one base
depends on the other closure decisions joined with it in a
given package, and the decisions made in the second and
third rounds just as surely depend (or will depend) on the
particular content of the package or packages of closings that
will have preceded them. If judicial review could eliminate
one base from a package, the political resolution embodied in
that package would be destroyed; if such review could elimi-
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482 DALTON v. SPECTER
Opinion of Souter, J.
nate an entire package, or leave its validity in doubt when
a succeeding one had to be devised, the political resolution
necessary to agree on the succeeding package would be ren-
dered the more difficult, if not impossible. The very reasons
that led Congress by this enactment to bind its hands from
untying a package, once assembled, go far to persuade me
that Congress did not mean the courts to have any such
power through judicial review.
When combined with these strict timetables for decision,
the temporary nature of the Commission, the requirement
for prompt implementation, and the all-or-nothing base-
closing requirement at the core of the Act, two secondary
features of the legislation tend to reinforce my conclusion
that judicial review was not intended. First, the Act pro-
vides nonjudicial opportunities to assess any procedural
(or other) irregularities. The Commission and the Comp-
troller General review the Secretary's recommendations, see
§§ 2903(d)(5), 2903(d)(3), and each can determine whether
the Secretary has provided adequate information for re-
viewing the soundness of his recommendations.3 The Presi-
dent may, of course, also take procedural irregularities
into account in deciding whether to seek new recommenda-
tions from the Commission, or in deciding not to approve
the Commission's recommendations altogether. And, ulti-
mately, Congress may decide during its 45-day review period
whether procedural failings call the Presidentially approved
recommendations so far into question as to justify their sub-
stantive rejection.4
3 Petitioners represent, indeed, that as to the round in question, the
Comptroller General reported to Congress on procedural irregularities
(as well as substantive differences of opinion) and requested additional
information from the Secretary (which was provided). See Reply Brief
for Petitioners 16, n. 12.
4 In approving the base closings for 1991, Congress was apparently well
aware of claims of procedural shortcomings, but nonetheless chose not
to disapprove the list. See Department of Defense Appropriations Act,
1992, Pub. L. 102Â172, § 8131, 105 Stat. 1208.
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Opinion of Souter, J.
Second, the Act does make express provision for judicial
review, but only of objections under the National Environ-
mental Policy Act of 1969 (NEPA), 83 Stat. 852, as amended,
42 U. S. C. § 4321 et seq., to implementation plans for a base
closing, and only after the process of selecting a package of
bases for closure is complete. Because NEPA review dur-
ing the base-closing decision process had stymied or delayed
earlier efforts,5 the Act, unlike prior legislation addressed
to base closing, provides that NEPA has no application at
all until after the President has submitted his decision to
Congress and the process of selecting bases for closure has
been completed. See § 2905(c)(1). NEPA then applies only
to claims arising out of actual disposal or relocation of base
property, not to the prior decision to choose one base or
another for closing. § 2905(c)(2). The Act by its terms al-
lows for "judicial review, with respect to any requirement of
[NEPA]" made applicable to the Act by § 2905(c)(2), but re-
quires the action to be initiated within 60 days of the Defense
Department's act or omission as to the closing of a base.
§ 2905(c)(3). This express provision for judicial review of
certain NEPA claims within a narrow time frame supports
the conclusion that the Act precludes judicial review of other
matters, not simply because the Act fails to provide ex-
pressly for such review, but because Congress surely would
have prescribed similar time limits to preserve its considered
schedules if review of other claims had been intended.
In sum, the text, structure, and purpose of the Act clearly
manifest congressional intent to confine the base-closing se-
lection process within a narrow time frame before inevitable
political opposition to an individual base closing could be-
come overwhelming, to ensure that the decisions be imple-
mented promptly, and to limit acceptance or rejection to a
package of base closings as a whole, for the sake of political
feasibility. While no one aspect of the Act, standing alone,
5 See, e. g., H. R. Conf. Rep. No. 100Â1071, p. 23 (1988).
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484 DALTON v. SPECTER
Opinion of Souter, J.
would suffice to overcome the strong presumption in favor
of judicial review, this structure (combined with the Act's
provision for Executive and congressional review, and its
requirement of time-constrained judicial review of implemen-
tation under NEPA) can be understood no other way than as
precluding judicial review of a base-closing decision under
the scheme that Congress, out of its doleful experience, chose
to enact. I conclude accordingly that the Act forecloses such
judicial review.
I thus join in Part II of the opinion of the Court, and in
its judgment.
511us2$51z 11-05-97 14:06:49 PAGES OPINPGT
OCTOBER TERM, 1993 485
Syllabus
CUSTIS v. UNITED STATES
certiorari to the united states court of appeals for
the fourth circuit
No. 93Â5209. Argued February 28, 1994-Decided May 23, 1994
After the jury convicted petitioner Custis of possession of a firearm by a
felon and another federal crime, the Government relied on his prior
state-court convictions for robbery in Pennsylvania and for burglary and
attempted burglary in Maryland to support a motion under the Armed
Career Criminal Act of 1984, 18 U. S. C. § 924(e) (ACCA), which provides
for enhancement of the sentence of a convicted firearms possessor who
"has three previous convictions . . . for a violent felony or a serious
drug offense." Custis challenged the use for this purpose of the two
Maryland convictions on the ground, among others, of ineffective assist-
ance of counsel during the state prosecutions, but the District Court
held that § 924(e)(1) provides no statutory right to challenge such convic-
tions and that the Constitution bars the use of a prior conviction for
enhancement only when there was a complete denial of counsel in the
prior proceeding. Custis was sentenced to an enhanced term of 235
months in prison, and the Court of Appeals affirmed.
Held:1. With the sole exception of convictions obtained in violation of the
right to counsel, a defendant in a federal sentencing proceeding has no
right to collaterally attack the validity of previous state convictions that
are used to enhance his sentence under the ACCA. Pp. 490Â497.
(a) Congress did not intend to permit collateral attacks on prior
convictions under § 924(e). The statute's language-which applies to a
defendant who has "three previous convictions" of the type specified-
focuses on the fact of the conviction, and nothing therein suggests that
the prior final conviction may be subject to attack for potential constitu-
tional errors before it may be counted. That there is no implied right
of collateral attack under § 924(e) is strongly supported by § 921(a)(20),
which provides that a court may not count a conviction "which has been
. . . set aside" by the jurisdiction in which the proceedings were held,
and thereby creates a clear negative implication that courts may count
a conviction that has not been so set aside; by the contrast between
§ 924(e) and other related statutes that expressly permit repeat offend-
ers to challenge prior convictions that are used for enhancement pur-
poses, see, e. g., 21 U. S. C. § 851(c); and by Lewis v. United States, 445
U. S. 55, in which this Court held that one of the predecessors to the
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486 CUSTIS v. UNITED STATES
Syllabus
current felon-in-possession-of-a-firearm statute did not allow collateral
attack on the predicate conviction. Pp. 490Â493.
(b) The right, recognized in Burgett v. Texas, 389 U. S. 109, and
United States v. Tucker, 404 U. S. 443, to collaterally attack prior convic-
tions used for sentence enhancement purposes cannot be extended be-
yond the right, established in Gideon v. Wainwright, 372 U. S. 335, to
have appointed counsel. Since Johnson v. Zerbst, 304 U. S. 458, and
running through Burgett and Tucker, there has been a theme that fail-
ure to appoint counsel for an indigent defendant was a unique constitu-
tional defect. None of the constitutional violations alleged by Custis,
including the claimed denial of effective assistance of counsel, rises to
the level of a jurisdictional defect resulting from the failure to appoint
counsel at all. This conclusion is supported by the interest in promot-
ing the finality of judgments and avoiding delay and protraction of the
federal sentencing process, and by the relative ease of administering a
claim of failure to appoint counsel, as opposed to other constitutional
challenges. Pp. 493Â497.
2. However, Custis, who was still "in custody" for purposes of his
state convictions at the time of his federal sentencing under § 924(e),
may attack his state sentences in Maryland or through federal habeas
corpus review. See Maleng v. Cook, 490 U. S. 488, 492. If he is suc-
cessful in attacking these state sentences, he may then apply for reopen-
ing of any federal sentence enhanced by the state sentences. The
Court expresses no opinion on the appropriate disposition of such an
application. P. 497.
988 F. 2d 1355, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Con-
nor, Scalia, Kennedy, Thomas, and Ginsburg, JJ., joined. Souter, J.,
filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined,
post, p. 498.
Mary M. French argued the cause for petitioner. With
her on the briefs were James K. Bredar and Beth M. Farber.
Deputy Solicitor General Bryson argued the cause for
the United States. With him on the brief were Solicitor
General Days, Assistant Attorney General Harris, John F.
Manning, and Joseph C. Wyderko.*
*Briefs of amici curiae urging affirmance were filed for the State of
Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A. Cordray,
State Solicitor, Simon B. Karas, and Donald R. Jilisky and Donald Gary
511us2$51H 11-05-97 14:06:49 PAGES OPINPGT
Cite as: 511 U. S. 485 (1994) 487
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
The Armed Career Criminal Act of 1984, 18 U. S. C.
§ 924(e) (ACCA), raises the penalty for possession of a fire-
arm by a felon from a maximum of 10 years in prison to a
mandatory minimum sentence of 15 years and a maximum of
life in prison without parole if the defendant "has three pre-
vious convictions . . . for a violent felony or a serious drug
offense." We granted certiorari to determine whether a de-
fendant in a federal sentencing proceeding may collaterally
attack the validity of previous state convictions that are used
to enhance his sentence under the ACCA. We hold that a
defendant has no such right (with the sole exception of con-
victions obtained in violation of the right to counsel) to col-
laterally attack prior convictions.
Baltimore City Police arrested petitioner Darren J. Custis
on July 1, 1991. A federal grand jury indicted him on three
counts: (1) possession of cocaine with intent to distribute in
violation of 21 U. S. C. § 841(a)(1); (2) use of a firearm in con-
nection with a drug trafficking offense in violation of 18
U. S. C. § 924(c); and (3) possession of a firearm by a convicted
felon in violation of 18 U. S. C. § 922(g)(1). Before trial in
the United States District Court for the District of Mary-
land, the Government notified Custis that it would seek an
enhanced penalty for the § 922(g)(1) offense under �� 924(e)(1).
The notice charged that he had three prior felony convic-
Keyser, Assistant Attorneys General, and by the Attorneys General for
their respective States as follows: Grant Woods of Arizona, Winston Bry-
ant of Arkansas, Larry EchoHawk of Idaho, Chris Gorman of Kentucky,
Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Joseph
P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa
of Nevada, Frank DeVesa of New Jersey, Heidi Heitkamp of North Da-
kota, Susan B. Loving of Oklahoma, Theodore R. Kulongoski of Oregon,
Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Caro-
lina, Mark Barnett of South Dakota, Jeffrey L. Amestoy of Vermont, Ste-
phen D. Rosenthal of Virginia, and Joseph B. Myer of Wyoming; and for
the Criminal Justice Legal Foundation by Kent S. Scheidegger.
511us2$51H 11-05-97 14:06:49 PAGES OPINPGT
488 CUSTIS v. UNITED STATES
Opinion of the Court
tions: (1) a 1985 Pennsylvania state-court conviction for rob-
bery; (2) a 1985 Maryland state-court conviction for burglary;
and (3) a 1989 Maryland state-court conviction for at-
tempted burglary.
The jury found Custis not guilty of possession with intent
to distribute and not guilty of use of a firearm during a drug
offense, but convicted him of possession of a firearm and sim-
ple cocaine possession, a lesser included offense in the charge
of possession with intent to distribute cocaine. At the sen-
tencing hearing, the Government moved to have Custis' sen-
tence enhanced under § 924(e)(1), based on the prior convic-
tions included in the notice of sentence enhancement.
Custis challenged the use of the two Maryland convictions
for sentence enhancement. He argued that his lawyer for
his 1985 burglary conviction rendered unconstitutionally in-
effective assistance and that his guilty plea was not knowing
and intelligent as required by Boykin v. Alabama, 395 U. S.
238 (1969). He claimed that his attorney had failed to advise
him of the defense of voluntary intoxication, and that he
would have gone to trial, rather than pleaded guilty, had he
been aware of that defense. He challenged his 1989 convic-
tion on the ground that it had been based upon a "stipulated
facts" trial. He claimed that such a "stipulated facts" trial
was tantamount to a guilty plea and that his conviction was
fundamentally unfair because he had not been adequately
advised of his rights. Custis further asserts that he had
been denied effective assistance of counsel in that case be-
cause the stipulated facts established only attempted break-
ing and entering rather than attempted burglary under
state law.
The District Court initially rejected Custis' collateral
attacks on his two Maryland state-court convictions. The
District Court's letter ruling determined that the perform-
ance of Custis' attorney in the 1985 case did not fall below
the standard of professional competence required under
Strickland v. Washington, 466 U. S. 668 (1984). Order in
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Cite as: 511 U. S. 485 (1994) 489
Opinion of the Court
No. S 91Â0334 (D. Md., Feb. 27, 1992), p. 1. It found that
counsel's recommendation of a guilty plea was not unreason-
able under the circumstances. Id., at 2. The District Court
also rejected Custis' claim that the 1989 "stipulated facts"
trial was the functional equivalent of a guilty plea. Id., at
2Â3.
The District Court later reversed field and determined
that it could not entertain Custis' challenges to his prior con-
victions at all. It noted that "[u]nlike the statutory scheme
for enhancement of sentences in drug cases, [§ 924(e)(1)] pro-
vides no statutory right to challenge prior convictions relied
upon by the Government for enhancement." 786 F. Supp.
533, 535Â536 (Md. 1992). The District Court went on to
state that the Constitution bars the use of a prior conviction
for sentence enhancement only when there was a complete
denial of counsel in the prior proceeding. Id., at 536, citing
Gideon v. Wainwright, 372 U. S. 335 (1963); United States v.
Tucker, 404 U. S. 443 (1972); and Burgett v. Texas, 389 U. S.
109 (1967). Based on Custis' offense level of 33 and his crim-
inal history category of VI, the District Court imposed a
sentence of 235 months in prison.
The Court of Appeals affirmed. 988 F. 2d 1355 (CA4
1993). It recognized the right of a defendant who had been
completely deprived of counsel to assert a collateral attack
on his prior convictions since such a defendant "has lost his
ability to assert all his other constitutional rights." Id., at
1360, citing Johnson v. Zerbst, 304 U. S. 458, 465 (1938). Cit-
ing the "substantial burden" on prosecutors and the district
courts, the Court of Appeals dismissed all of Custis' chal-
lenges to his prior convictions as the "fact-intensive" type
that pose a risk of unduly delaying and protracting the entire
sentencing process. 988 F. 2d, at 1361. The prospect of
such fact-intensive inquiries led it to express great reluc-
tance at forcing district courts to overcome the " `inadequacy
or unavailability of state court records and witnesses' " in
trying to determine the validity of prior sentences. Ibid.,
511us2$51H 11-05-97 14:06:49 PAGES OPINPGT
490 CUSTIS v. UNITED STATES
Opinion of the Court
quoting United States v. Jones, 977 F. 2d 105, 109 (CA4 1992).
In addition to the practical hurdles, the Court of Appeals
specified concerns over comity and federalism as other fac-
tors weighing against permitting collateral attacks. " `Fed-
eral courts are not forums in which to relitigate state
trials.' " 988 F. 2d, at 1361, quoting Barefoot v. Estelle, 463
U. S. 880, 887 (1983). We granted certiorari, 510 U. S. 913
(1993), because the Court of Appeals' decision conflicted with
recent decisions from other Courts of Appeals that permitted
defendants to challenge prior convictions that are used in
sentencing under § 924(e)(1).1
Custis argues that the ACCA should be read to permit
defendants to challenge the constitutionality of convictions
used for sentencing purposes. Looking to the language of
the statute, we do not believe § 924(e) authorizes such collat-
eral attacks. The ACCA provides an enhanced sentence for
any person who unlawfully possesses a firearm in violation
of 18 U. S. C. § 922(g) 2 and "has three previous convictions
by any court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense . . . ." Section
924(e) applies whenever a defendant is found to have suffered
"three previous convictions" of the type specified. The stat-
1 See, e. g., United States v. Paleo, 967 F. 2d 7, 11 (CA1 1992); United
States v. Merritt, 882 F. 2d 916, 918 (CA5 1989); United States v. Mc-
Glocklin, 8 F. 3d 1037 (CA6 1993) (en banc); United States v. Gallman, 907
F. 2d 639, 642Â645 (CA7 1990); United States v. Day, 949 F. 2d 973, 981Â983
(CA8 1991); United States v. Clawson, 831 F. 2d 909, 914Â915 (CA9 1987);
and United States v. Franklin, 972 F. 2d 1253, 1257Â1258 (CA11 1992).
2 Title 18 U. S. C. § 922 provides in pertinent part as follows:
"(g) It shall be unlawful for any person-
"(1) who has been convicted in any court of, a crime punishable by im-
prisonment for a term exceeding one year;
. . . . .
"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."
511us2$51H 11-05-97 14:06:49 PAGES OPINPGT
Cite as: 511 U. S. 485 (1994) 491
Opinion of the Court
ute focuses on the fact of the conviction and nothing suggests
that the prior final conviction may be subject to collateral
attack for potential constitutional errors before it may be
counted.
Absent specific statutory authorization, Custis contends
that an implied right to challenge the constitutionality of
prior convictions exists under § 924(e). Again we disagree.
The Gun Control Act of 1968, of which § 924(e) is a part,
strongly indicates that unchallenged prior convictions may
be used for purposes of § 924(e). At least for prior violent
felonies, § 921(a)(20) describes the circumstances in which a
prior conviction may be counted for sentencing purposes
under § 924(e):
"What constitutes a conviction of . . . a crime shall be
determined in accordance with the law of the jurisdic-
tion in which the proceedings were held. Any convic-
tion which has been expunged, or set aside or for which
a person has been pardoned or has had civil rights re-
stored shall not be considered a conviction for purposes
of this chapter [18 U. S. C. §§ 921Â930]."
The provision that a court may not count a conviction "which
has been . . . set aside" creates a clear negative implication
that courts may count a conviction that has not been set
aside.
Congress' passage of other related statutes that expressly
permit repeat offenders to challenge prior convictions that
are used for enhancement purposes supports this negative
implication. For example, 21 U. S. C. § 851(c), which Con-
gress enacted as part of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, sets forth specific proce-
dures allowing a defendant to challenge the validity of a
prior conviction used to enhance the sentence for a federal
drug offense. Section 851(c)(1) states that "[i]f the person
denies any allegation of the information of prior conviction,
or claims that any conviction alleged is invalid, he shall file
511us2$51H 11-05-97 14:06:49 PAGES OPINPGT
492 CUSTIS v. UNITED STATES
Opinion of the Court
a written response to the information." Section 851(c)(2)
goes on to provide:
"A person claiming that a conviction alleged in the
information was obtained in violation of the Constitution
of the United States shall set forth his claim, and the
factual basis therefor, with particularity in his response
to the information. The person shall have the burden
of proof by a preponderance of the evidence on any issue
of fact raised by the response. Any challenge to a prior
conviction, not raised by response to the information
before an increased sentence is imposed in reliance
thereon, shall be waived unless good cause be shown for
failure to make a timely challenge."
The language of § 851(c) shows that when Congress intended
to authorize collateral attacks on prior convictions at the
time of sentencing, it knew how to do so. Congress' omis-
sion of similar language in § 924(e) indicates that it did not
intend to give defendants the right to challenge the validity
of prior convictions under this statute. Cf. Gozlon-Peretz v.
United States, 498 U. S. 395, 404 (1991) (" `[W]here 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' "), quoting Russello v.
United States, 464 U. S. 16, 23 (1983) (internal quotation
marks omitted).
Our decision in Lewis v. United States, 445 U. S. 55 (1980),
also supports the conclusion that prior convictions used for
sentence enhancement purposes under § 924(e) are not sub-
ject to collateral attack in the sentence proceeding. Lewis
interpreted 18 U. S. C. App. § 1202(a)(1) (1982 ed.), one of the
predecessors to the current felon-in-possession-of-a-firearm
statute. Section 1202(a)(1) was aimed at any person who
"has been convicted by a court of the United States or of a
State . . . of a felony." We concluded that " `[n]othing on the
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Cite as: 511 U. S. 485 (1994) 493
Opinion of the Court
face of the statute suggests a congressional intent to limit
its coverage to persons [whose convictions are not subject to
collateral attack].' " 445 U. S., at 60, quoting United States
v. Culbert, 435 U. S. 371, 373 (1978). This lack of such intent
in § 1202(a)(1) also contrasted with other federal statutes
that explicitly permitted a defendant to challenge the valid-
ity or constitutionality of the predicate felony. See, e. g., 18
U. S. C. § 3575(e) (note following ch. 227) (dangerous special
offender) and 21 U. S. C. § 851(c)(2) (recidivism under the
Comprehensive Drug Abuse Prevention and Control Act of
1970). The absence of expressed intent, and the contrast
with other federal statutes, led us to determine that "the
firearms prosecution [under § 1202(a)(1)] does not open the
predicate conviction to a new form of collateral attack." 445
U. S., at 67.
Similarly, § 924(e) lacks any indication that Congress in-
tended to permit collateral attacks on prior convictions used
for sentence enhancement purposes. The contrast between
§ 924(e) and statutes that expressly provide avenues for col-
lateral attacks, as well as our decision in Lewis, supra, point
strongly to the conclusion that Congress did not intend to
permit collateral attacks on prior convictions under § 924(e).
Custis argues that regardless of whether § 924(e) permits
collateral challenges to prior convictions, the Constitution
requires that they be allowed. He relies upon our decisions
in Burgett v. Texas, 389 U. S. 109 (1967), and United States
v. Tucker, 404 U. S. 443 (1972), in support of this argument.
Both of these decisions relied upon our earlier decision in
Gideon v. Wainwright, 372 U. S. 335 (1963), holding that the
Sixth Amendment of the United States Constitution re-
quired that an indigent defendant in state-court proceedings
have counsel appointed for him. Gideon, in turn, overruled
our earlier decision in Betts v. Brady, 316 U. S. 455 (1942),
which had held that the Sixth Amendment right to counsel,
long applied in federal-court proceedings, was not itself made
applicable to the States by the Due Process Clause. The
511us2$51H 11-05-97 14:06:49 PAGES OPINPGT
494 CUSTIS v. UNITED STATES
Opinion of the Court
Due Process Clause, Betts had held, required the appoint-
ment of counsel for an indigent defendant in state courts only
upon a showing of special circumstances. Id., at 473.
But even before Betts v. Brady was decided, this Court
had held that the failure to appoint counsel for an indigent
defendant in a federal proceeding not only violated the Sixth
Amendment, but was subject to collateral attack in federal
habeas corpus. Johnson v. Zerbst, 304 U. S. 458 (1938). At
a time when the underlying habeas statute was construed to
allow collateral attacks on final judgments of conviction only
where the rendering court lacked "jurisdiction"-albeit a
somewhat expansive notion of "jurisdiction," see Moore v.
Dempsey, 261 U. S. 86 (1923)-this Court attributed a juris-
dictional significance to the failure to appoint counsel. The
Court said:
"If the accused, however, is not represented by counsel
and has not competently and intelligently waived his
constitutional right, the Sixth Amendment stands as a
jurisdictional bar to a valid conviction and sentence de-
priving him of his life or his liberty. . . . The judgment
of conviction pronounced by a court without jurisdiction
is void, and one imprisoned thereunder may obtain re-
lease by habeas corpus." 304 U. S., at 468.
When the Court later expanded the availability of federal
habeas to other constitutional violations, it did so by frankly
stating that the federal habeas statute made such relief
available for them, without claiming that the denial of these
constitutional rights by the trial court would have denied
it jurisdiction. See, e. g., Waley v. Johnston, 316 U. S. 101,
104Â105 (1942) (coerced confession); Brown v. Allen, 344 U. S.
443 (1953). There is thus a historical basis in our jurispru-
dence of collateral attacks for treating the right to have
counsel appointed as unique, perhaps because of our oft-
stated view that "[t]he right to be heard would be, in many
511us2$51H 11-05-97 14:06:50 PAGES OPINPGT
Cite as: 511 U. S. 485 (1994) 495
Opinion of the Court
cases, of little avail if it did not comprehend the right to be
heard by counsel." Powell v. Alabama, 287 U. S. 45, 68Â69
(1932).
Following our decision in Gideon, the Court decided Bur-
gett v. Texas, supra. There the defendant was charged
under a Texas recidivist statute with having been the subject
of four previous felony convictions. 389 U. S., at 111. The
prosecutor introduced certified records of one of the defend-
ant's earlier convictions in Tennessee. Id., at 112. The de-
fendant objected to the admission of this conviction on the
ground that he had not been represented by counsel and had
not waived his right to counsel, but his objection was over-
ruled by the trial court. Id., at 113. This Court reversed,
finding that the certified records of the Tennessee conviction
on their face raised a "presumption that petitioner was de-
nied his right to counsel . . . , and therefore that his convic-
tion was void." Id., at 114. The Court held that the admis-
sion of a prior criminal conviction that is constitutionally
infirm under the standards of Gideon is inherently preju-
dicial and to permit use of such a tainted prior conviction
for sentence enhancement would undermine the principle of
Gideon. 389 U. S., at 115.
A similar situation arose in Tucker, supra. The defendant
had been convicted of bank robbery in California in 1953.
At sentencing, the District Court conducted an inquiry into
the defendant's background, and, the record shows, gave ex-
plicit attention to the three previous felony convictions that
the defendant had acknowledged at trial. The District
Court sentenced him to 25 years in prison-the stiffest term
authorized by the applicable federal statute, 18 U. S. C.
§ 2113(d). 404 U. S., at 444. Several years later, after hav-
ing obtained a judicial determination that two of his prior
convictions were constitutionally invalid, the defendant filed
a writ of habeas corpus in the District Court in which he had
been convicted of bank robbery. He challenged the use at
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496 CUSTIS v. UNITED STATES
Opinion of the Court
his 1953 bank robbery trial of his three previous felony con-
victions. This Court sustained his challenge insofar as his
sentence was concerned, saying "Gideon . . . established an
unequivocal rule `making it unconstitutional to try a person
for a felony in a state court unless he had a lawyer or had
validly waived one.' " Id., at 449, quoting Burgett v. Texas,
supra, at 114. The Court held that "[e]rosion of the Gideon
principle can be prevented here only by affirming the judg-
ment of the Court of Appeals remanding this case to the trial
court for reconsideration of the [defendant's] sentence." 404
U. S., at 449.
Custis invites us to extend the right to attack collaterally
prior convictions used for sentence enhancement beyond the
right to have appointed counsel established in Gideon. We
decline to do so. We think that since the decision in John-
son v. Zerbst more than half a century ago, and running
through our decisions in Burgett and Tucker, there has been
a theme that failure to appoint counsel for an indigent de-
fendant was a unique constitutional defect. Custis attacks
his previous convictions claiming the denial of the effective
assistance of counsel, that his guilty plea was not knowing
and intelligent, and that he had not been adequately advised
of his rights in opting for a "stipulated facts" trial. None of
these alleged constitutional violations rises to the level of
a jurisdictional defect resulting from the failure to appoint
counsel at all. Johnson v. Zerbst, supra.
Ease of administration also supports the distinction. As
revealed in a number of the cases cited in this opinion, failure
to appoint counsel at all will generally appear from the judg-
ment roll itself, or from an accompanying minute order. But
determination of claims of ineffective assistance of counsel,
and failure to assure that a guilty plea was voluntary, would
require sentencing courts to rummage through frequently
nonexistent or difficult to obtain state-court transcripts or
records that may date from another era, and may come from
any one of the 50 States.
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Opinion of the Court
The interest in promoting the finality of judgments pro-
vides additional support for our constitutional conclusion.
As we have explained, "[i]nroads on the concept of finality
tend to undermine confidence in the integrity of our proce-
dures" and inevitably delay and impair the orderly adminis-
tration of justice. United States v. Addonizio, 442 U. S. 178,
184, n. 11 (1979). We later noted in Parke v. Raley, 506 U. S.
20 (1992), that principles of finality associated with habeas
corpus actions apply with at least equal force when a defend-
ant seeks to attack a previous conviction used for sentencing.
By challenging the previous conviction, the defendant is ask-
ing a district court "to deprive [the] [state-court judgment]
of [its] normal force and effect in a proceeding that ha[s] an
independent purpose other than to overturn the prior judg-
men[t]." Id., at 30. These principles bear extra weight in
cases in which the prior convictions, such as one challenged
by Custis, are based on guilty pleas, because when a guilty
plea is at issue, "the concern with finality served by the limi-
tation on collateral attack has special force." United States
v. Timmreck, 441 U. S. 780, 784 (1979) (footnote omitted).
We therefore hold that § 924(e) does not permit Custis to
use the federal sentencing forum to gain review of his state
convictions. Congress did not prescribe and the Constitu-
tion does not require such delay and protraction of the fed-
eral sentencing process. We recognize, however, as did the
Court of Appeals, see 988 F. 2d, at 1363, that Custis, who
was still "in custody" for purposes of his state convictions at
the time of his federal sentencing under § 924(e), may attack
his state sentences in Maryland or through federal habeas
review. See Maleng v. Cook, 490 U. S. 488, 492 (1989). If
Custis is successful in attacking these state sentences, he
may then apply for reopening of any federal sentence en-
hanced by the state sentences. We express no opinion on
the appropriate disposition of such an application.
The judgment of the Court of Appeals is accordingly
Affirmed.
511us2$51M 11-05-97 14:06:50 PAGES OPINPGT
498 CUSTIS v. UNITED STATES
Souter, J., dissenting
Justice Souter, with whom Justice Blackmun and
Justice Stevens join, dissenting.
The Court answers a difficult constitutional question that
I believe the underlying statute does not pose. Because in
my judgment the Armed Career Criminal Act of 1984, 18
U. S. C. § 924(e) (ACCA), does not authorize sentence en-
hancement based on prior convictions that a defendant can
show at sentencing to have been unlawfully obtained, I
respectfully dissent.
I
A
The ACCA mandatory minimum sentence applies to de-
fendants with "three previous convictions . . . for a violent
felony or a serious drug offense." 18 U. S. C. § 924(e). The
Court construes "convictio[n]" to refer to the "fact of the
conviction," ante, at 491 (emphasis in original), and concludes
that "Congress did not intend to permit collateral attacks
[during sentencing] on prior convictions under § 924(e),"
ante, at 493.1 This interpretation of the ACCA will come as
a surprise to the Courts of Appeals, which (with the one
exception of the court below) have understood "convictio[n]"
in the ACCA to mean "lawful conviction," and have permit-
ted defendants to show at sentencing that a prior conviction
offered for enhancement was unconstitutionally obtained,
whether as violative of the right to have appointed counsel,
see Gideon v. Wainwright, 372 U. S. 335 (1963), the right to
effective assistance of counsel, see Strickland v. Washing-
ton, 466 U. S. 668 (1984), the right against conviction based
on an unknowing or involuntary guilty plea, see Boykin v.
1 The Court's opinion makes clear that it uses the phrase "collateral at-
tack" to refer to an attack during sentencing. See, e. g., ante, at 487 ("We
granted certiorari to determine whether a defendant in a federal sentenc-
ing proceeding may collaterally attack the validity of previous state con-
victions that are used to enhance his sentence under the ACCA").
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Souter, J., dissenting
Alabama, 395 U. S. 238 (1969), or other constitutional rights.2
The weight of appellate authority, in my opinion, reflects the
proper construction of the ACCA.
The Court's contrary reading ignores the legal framework
within which Congress drafted the ACCA, a framework with
which we presume Congress was familiar. See, e. g., Can-
non v. University of Chicago, 441 U. S. 677, 696Â698 (1979).
When the language that became the ACCA was first pro-
posed in 1982, when it was enacted in 1984 (codified at
§ 1202(a)(1)) and when it was reenacted in 1986 (codified at
§ 924(e)), this Court's decisions in Burgett v. Texas, 389 U. S.
109 (1967), and United States v. Tucker, 404 U. S. 443 (1972),
were on the books. Even under the narrow reading the
Court accords those decisions today, they recognize at least
a right to raise during sentencing Gideon challenges to prior
convictions used for enhancement. See ante, at 495Â496.
Unless Congress intended to snub that constitutional right
(and we ordinarily indulge a "strong presumption . . . that
Congress legislated in accordance with the Constitution,"
Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 477
(1957) (Frankfurter, J., dissenting)), "convictio[n]" in § 924(e)
simply cannot refer to the mere fact of conviction, and the
provision must have been meant to allow during sentencing
at least some challenges to prior convictions offered for
enhancement.
Nor is it likely that Congress's intent was informed by as
narrow a reading of Burgett and Tucker as the Court adopts
2 See United States v. Paleo, 967 F. 2d 7, 11Â13 (Breyer, C. J.), rehearing
denied, 9 F. 3d 988, 988Â989 (CA1 1992) (containing additional discussion
of statutory issue); United States v. Preston, 910 F. 2d 81, 87Â89 (CA3
1990); United States v. Taylor, 882 F. 2d 1018, 1031 (CA6 1989); United
States v. Gallman, 907 F. 2d 639, 642Â643 (CA7 1990); United States v.
Day, 949 F. 2d 973, 981Â984 (CA8 1991); United States v. Clawson, 831
F. 2d 909, 914Â915 (CA9 1987) (interpreting 18 U. S. C. § 1202(a)(1) (1982
ed.), the predecessor of § 924(e)); United States v. Wicks, 995 F. 2d 964,
974Â979 (CA10 1993); United States v. Ruo, 943 F. 2d 1274, 1275Â1277
(CA11 1991).
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500 CUSTIS v. UNITED STATES
Souter, J., dissenting
today. In the legal environment of the ACCA's enactment,
Burgett and Tucker were thought to stand for the broader
proposition that "[n]o consideration can be given [at sentenc-
ing] to a conviction that was unconstitutionally obtained," 3
C. Wright, Federal Practice and Procedure § 526, p. 102
(1982), and Courts of Appeals consistently read the decisions
as requiring courts to entertain claims that prior convictions
relied upon for enhancement were unconstitutional for rea-
sons other than Gideon violations.3 The Congress that
enacted the ACCA against this backdrop must be presumed
to have intended to permit defendants to attempt to show at
sentencing that prior convictions were "unconstitutionally
obtained."
That presumption is strongly bolstered by the fact that
Congress, despite the consistent interpretation of the ACCA
as permitting attacks on prior convictions during sentencing,
and despite amending the law several times since its enact-
ment (see note following 18 U. S. C. § 924 (1988 ed. and Supp.
V) (listing amendments)), left the language relevant here un-
touched. Congress's failure to express legislative disagree-
ment with the appellate courts' reading of the ACCA cannot be
disregarded, especially since Congress has acted in this area in
response to other Courts of Appeals decisions that it thought
revealed statutory flaws requiring "correct[ion]." S. Rep.
No. 98Â583, p. 7, and n. 17 (1984); see id., at 8, and n. 18, 14,
and n. 31; see also Herman & MacLean v. Huddleston, 459
U. S. 375, 385Â386 (1983) ("In light of [a] well-established ju-
dicial interpretation [of a statutory provision], Congress' de-
cision to leave [the provision] intact suggests that Congress
3 See, e. g., United States v. Mancusi, 442 F. 2d 561 (CA2 1971) (Confron-
tation Clause); Jefferson v. United States, 488 F. 2d 391, 393 (CA5 1974)
(self-incrimination); United States v. Martinez, 413 F. 2d 61 (CA7 1969)
(unknowing and involuntary guilty plea); Taylor v. United States, 472 F. 2d
1178, 1179Â1180 (CA8 1973) (self-incrimination); Brown v. United States,
610 F. 2d 672, 674Â675 (CA9 1980) (ineffective assistance of counsel);
Martinez v. United States, 464 F. 2d 1289 (CA10 1972) (self-incrimination).
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Souter, J., dissenting
ratified" the interpretation). Accordingly, absent clear indi-
cation that Congress intended to preclude all challenges dur-
ing sentencing to prior convictions relied upon for enhance-
ment, the ACCA must be read as permitting such challenges.
B
The Court fails to identify any language in the ACCA af-
firmatively precluding collateral attacks on prior convictions
during sentencing, as there is none. Instead, the Court
hears a clear message in the statutory silence, but I find none
of its arguments persuasive. The Court first invokes 18
U. S. C. § 921(a)(20), under which a conviction "which has
been expunged, or set aside or for which a person has been
pardoned or has had civil rights restored shall not be consid-
ered a conviction for purposes of this chapter." According
to the Court, this "exemption clause" (as we have elsewhere
called it, see Beecham v. United States, ante, at 369, "creates
a clear negative implication that courts may count a convic-
tion that has not been set aside," ante, at 491. Expressio
unius, in other words, est exclusio alterius.
Even if the premise of the Court's argument is correct,4
the bridge the Court crosses to reach its conclusion is notori-
ously unreliable and does not bear the weight here. While
"often a valuable servant," the maxim that the inclusion of
something negatively implies the exclusion of everything
else (expressio unius, etc.) is "a dangerous master to follow
in the construction of statutes." Ford v. United States, 273
U. S. 593, 612 (1927) (internal quotation marks and citation
omitted). It rests on the assumption that all omissions in
4 Despite the Court's unstated assumption to the contrary, a sentencing
court that finds a prior conviction to have been unconstitutionally obtained
can be said to have "set aside" the conviction for purposes of the sentenc-
ing, a reading that squares better than the Court's with the evident pur-
pose of the exemption clause (as well as the statute that added it to
§ 921(a)(20), the "Firearm Owner's Protection Act") of disregarding convic-
tions that do not fairly and reliably demonstrate a person's bad character.
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502 CUSTIS v. UNITED STATES
Souter, J., dissenting
legislative drafting are deliberate, an assumption we know
to be false. See Posner, Statutory Interpretation-in the
Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 813
(1983); Radin, Statutory Interpretation, 43 Harv. L. Rev. 863,
873Â874 (1930). As a result, "[s]cholars have long savaged
the expressio canon," Cheney R. Co. v. ICC, 902 F. 2d 66, 68
(CADC 1990) (Williams, J.), at least when it is made to do
the work of a conclusive presumption, and our decisions sup-
port the proposition that "[s]ometimes [the canon] applies and
sometimes it does not, and whether it does or does not
depends largely on context." R. Dickerson, Interpretation
and Application of Statutes 47 (1975); see also id., at 234Â235.
In this case, the "contemporary legal context," Cannon v.
University of Chicago, 441 U. S., at 699, in which Congress
drafted the ACCA requires rejecting the negative implica-
tion on which the Court relies. That context, as I have de-
scribed, understood defendants to have a constitutional right
to attack at sentencing prior convictions that had not pre-
viously been invalidated, and in that legal setting it would
have been very odd for Congress to have intended to estab-
lish a constitutionally controversial rule by mere implication.
See Lowe v. SEC, 472 U. S. 181, 206, n. 50 (1985) ("In areas
where legislation might intrude on constitutional guarantees,
we believe that Congress, which has always sworn to protect
the Constitution, would err on the side of fundamental con-
stitutional liberties when its legislation implicates those lib-
erties") (internal quotation marks and citation omitted).
And in fact the legislative history indicates that quite a dif-
ferent intention informed the addition to § 921(a)(20) in 1986,
two years after the ACCA's enactment, of the exemption
clause (and the related "choice-of-law clause," Beecham v.
United States, ante, at 369. Congress simply intended to
clarify that the law of the convicting jurisdiction should be
the principal reference point in determining what counts as
a "conviction" for purposes of the federal "felon in posses-
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Souter, J., dissenting
sion" law, and to correct an oversight that had resulted in
the omission of exemption language from one of two parallel
provisions. See S. Rep. No. 98Â583, supra, at 7; H. R. Rep.
No. 99Â495, p. 20 (1986). In amending § 921(a)(20), Congress
was not addressing the question of where, in the course of
federal litigation, a conviction could be challenged. Indeed,
the legislative history of the amendment reveals no hint of
any intention at all with respect to § 924(e)'s sentence-
enhancement provision, but rather an exclusive focus on the
federal firearms disability in § 922. Cf. Miles v. Illinois
Central R. Co., 315 U. S. 698, 714Â715 (1942) (Frankfurter, J.,
dissenting) (relying on legislative history to counter a nega-
tive implication from a statute's text). As a result, the
Court's argument by negative implication from § 921(a)(20)'s
exemption clause must fail. The fact that Congress in the
exemption clause expressly precluded reliance upon uncon-
stitutional convictions that have been set aside simply does
not reveal an intent with respect to § 924(e) to require reli-
ance at sentencing on unconstitutional convictions that have
not yet been set aside.
The Court's second statutory argument also seeks to es-
tablish congressional intent through negative implication,
but is no more successful. The Court observes that Con-
gress in other statutes expressly permitted challenges to
prior convictions during sentencing, see ante, at 491Â493 (cit-
ing 21 U. S. C. § 851(c)(2) and 18 U. S. C. § 3575(e)), which is
said to show that "when Congress intended to authorize col-
lateral attacks on prior convictions at the time of sentencing,
it knew how to do so," ante, at 492. But surely the Court
does not believe that, if Congress intended to preclude collat-
eral attacks on prior convictions at the time of sentencing, it
did not know how to do that. And again, the Court's effort
to infer intent from the statutory silence runs afoul of the
context of the statute's enactment; within a legal framework
forbidding sentencing on the basis of prior convictions a de-
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504 CUSTIS v. UNITED STATES
Souter, J., dissenting
fendant can show to be invalid, a Congress that intended to
require sentencing on the basis of such convictions can be
expected to have made its intention explicit.
Finally, the Court turns for support to Lewis v. United
States, 445 U. S. 55 (1980), which held that the federal "felon
in possession" law does not permit a defendant, during his
prosecution, to challenge the constitutional validity of the
predicate felony conviction. The Court's reliance on Lewis,
however, assumes an equivalence between two different
types of laws that Lewis itself disclaimed: between a law
disabling convicted felons from possessing firearms (at issue
in Lewis), and a law requiring sentence enhancement based
on prior convictions (at issue here, as well as in Burgett and
Tucker). Lewis explained that the "felon in possession" law
is "a sweeping prophylaxis" designed "to keep firearms away
from potentially dangerous persons," 445 U. S., at 63, 67,
whereas a sentence-enhancement law "depend[s] upon the
reliability of a past . . . conviction," id., at 67. While the
unlawfulness of a past conviction is irrelevant to the former,
it is not to the latter, or so the Lewis Court thought in ex-
pressly distinguishing Burgett and Tucker: "[e]nforcement of
[the federal gun disability] does not `support guilt or enhance
punishment' . . . on the basis of a conviction that is unre-
liable." 445 U. S., at 67 (quoting Burgett, 389 U. S., at 115).
Because of the material way in which a "felon in posses-
sion" law differs from a sentence-enhancement law, Burgett
and Tucker were not part of the relevant legal backdrop
against which Congress enacted the law interpreted in
Lewis, and the Lewis Court could thus fairly presume that
"conviction" in the statute before it was used as shorthand
for "the fact of a felony conviction." 445 U. S., at 60, 67.
As Lewis itself recognized, however, Burgett and Tucker are
part of the backdrop against which sentence-enhancement
laws are enacted, and against that backdrop Congress must
be presumed to have used "conviction" in § 924(e) to mean
"lawful conviction," and to have permitted defendants to
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Souter, J., dissenting
show at sentencing that prior convictions offered for en-
hancement were unconstitutionally obtained.
II
A
Even if I thought the ACCA was ambiguous (the most the
Court's statutory arguments could establish), I would re-
solve the ambiguity in petitioner's favor in accordance with
the " `cardinal principle' " of statutory construction that
" `this Court will first ascertain whether a construction of
the statute is fairly possible by which [a constitutional] ques-
tion may be avoided.' " Ashwander v. TVA, 297 U. S. 288,
348 (1936) (Brandeis, J., concurring) (quoting Crowell v. Ben-
son, 285 U. S. 22, 62 (1932)); see also Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U. S. 568, 575 (1988); NLRB v. Catholic Bishop
of Chicago, 440 U. S. 490, 499Â501, 504 (1979); Blodgett v.
Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring in
result). The Ashwander principle, to be sure, comes into
play only when the constitutional question to be avoided is a
difficult one, but that designation easily fits the question that
the Court's reading of the ACCA requires it to decide, the
question whether the Constitution permits courts to enhance
a defendant's sentence on the basis of a prior conviction the
defendant can show was obtained in violation of his right to
effective assistance of counsel, see Strickland v. Washing-
ton, 466 U. S. 668 (1984), or that the defendant can show was
based on an unknowing or involuntary guilty plea, see Boy-
kin v. Alabama, 395 U. S. 238 (1969).
This is a difficult question, for one thing, because the lan-
guage and logic of Burgett and Tucker are hard to limit to
claimed violations of the right, recognized in Gideon v. Wain-
wright, to have a lawyer appointed if necessary. As indi-
cated by the uniformity of lower court decisions interpreting
them, see supra, at 500, and n. 3, Burgett and Tucker are
easily (if not best) read as announcing the broader principle
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506 CUSTIS v. UNITED STATES
Souter, J., dissenting
that a sentence may not be enhanced by a conviction the
defendant can show was obtained in violation of any " `spe-
cific federal right' " (or, as Tucker put it, that a sentence may
not be "founded [even] in part upon misinformation of consti-
tutional magnitude," 404 U. S., at 447) because to do so would
be to allow the underlying right to be "denied anew" and
to "suffer serious erosion," Burgett, supra, at 116 (citation
omitted); see also Tucker, supra, at 449. The Court's refer-
ences in both Burgett and Tucker to the right discussed in
Gideon is hardly surprising; that was the "specific federal
right" (and the record of the conviction obtained in viola-
tion of it the "misinformation of constitutional magnitude")
that the defendants before it invoked. The opinions in both
cases, moreover, made it quite clear that the discussion of
Gideon was not meant to supply a limitation. Burgett de-
scribed Gideon not as unique but as "illustrative of the limi-
tations which the Constitution places on state criminal pro-
cedures," and it recounted as supportive of its holding cases
involving coerced confessions, denials of the confrontation
right, and illegal searches and seizures, 389 U. S., at 114; and
Tucker made it clear that "the real question" before the
Court was whether the defendant's sentence might have
been different if the sentencing judge had known that the
defendant's "previous convictions had been unconstitution-
ally obtained," 404 U. S., at 448.5
5 The notion that Burgett and Tucker stand for the narrow principle
today's majority describes has escaped the Court twice before. In Parke
v. Raley, 506 U. S. 20, 31 (1992), the Court rejected the argument that
Burgett requires States to place the burden on the government during
sentencing to prove the validity of prior convictions offered for enhance-
ment. Though the underlying claim in Raley was the same as one of the
claims here (that a prior conviction resulted from an invalid guilty plea),
the Court did not hold Burgett inapposite as involving a violation of Gid-
eon v. Wainwright, 372 U. S. 355 (1963), but rather accepted Burgett's ap-
plicability and distinguished the case on different grounds. See 506 U. S.,
at 31. And in Zant v. Stephens, 462 U. S. 862 (1983), the Court described
Tucker as holding that a "sentence must be set aside if the trial court
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Souter, J., dissenting
Even if, consistently with principles of stare decisis, Bur-
gett and Tucker could be read as applying only to some class
of cases defined to exclude claimed violations of Strickland
or Boykin, the question whether to confine them so is not
easily answered for purposes of the Ashwander rule. Bur-
gett and Tucker deal directly with claimed violations of Gid-
eon, and distinguishing for these purposes between viola-
tions of Gideon and Strickland would describe a very fine
line. To establish a violation of the Sixth Amendment under
Strickland, a defendant must show that "counsel's perform-
ance was deficient," and that "the deficient performance
prejudiced the defense" in that "counsel's errors were so se-
rious as to deprive the defendant of a fair trial, a trial whose
result is reliable." 466 U. S., at 687. It is hard to see how
such a defendant is any better off than one who has been
denied counsel altogether, and why the conviction of such
a defendant may be used for sentence enhancement if the
conviction of one who has been denied counsel altogether
may not. The Sixth Amendment guarantees no mere for-
mality of appointment, but the "assistance" of counsel, cf.
Strickland, supra, at 685, 686 ("That a person who happens
to be a lawyer is present at trial alongside the accused . . .
is not enough to satisfy the [Sixth Amendment]" because
" `the right to counsel is the right to the effective assistance
of counsel' "), and whether the violation is of Gideon or
Strickland, the defendant has been denied that constitu-
tional right.
It is also difficult to see why a sentencing court that must
entertain a defendant's claim that a prior conviction was ob-
tained in violation of the Sixth Amendment's right to counsel
need not entertain a defendant's claim that a prior conviction
was based on an unknowing or involuntary guilty plea.
relied at least in part on `misinformation of constitutional magnitude' such
as prior uncounseled convictions that were unconstitutionally imposed,"
462 U. S., at 887, n. 23 (quoting Tucker, 404 U. S., at 447), clearly indicating
an understanding that Tucker was not limited to Gideon violations.
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508 CUSTIS v. UNITED STATES
Souter, J., dissenting
That claim, if meritorious, would mean that the defendant
was convicted despite invalid waivers of at least one of two
Sixth Amendment rights (to trial by jury and to confront
adverse witnesses) or of a Fifth Amendment right (against
compulsory self-incrimination). See Boykin, 395 U. S., at
243. It is, to be sure, no simple task to prove that a guilty
plea was the result of "[i]gnorance, incomprehension, coer-
cion, terror, inducements, [or] subtle or blatant threats," id.,
at 242Â243, but it is certainly at least a difficult question
whether a defendant who can make such a showing ought
to receive less favorable treatment than the defendants in
Burgett and Tucker.
Though the Court offers a theory for drawing a line be-
tween the right claimed to have been violated in Burgett and
Tucker and the rights claimed to have been violated here,
the Court's theory is itself fraught with difficulty. In the
Court's view, the principle of Burgett and Tucker reaches
only "constitutional violations ris[ing] to the level of a juris-
dictional defect resulting from the failure to appoint counsel
at all." Ante, at 496 (citing Johnson v. Zerbst, 304 U. S. 458
(1938)). But nowhere in Burgett or Tucker is a distinc-
tion drawn between "jurisdictional" and "nonjurisdictional"
rights, a fact giving no cause for surprise since long before
(in Waley v. Johnston, 316 U. S. 101 (1942)) "the Court
openly discarded the concept of jurisdiction-by then more
a fiction than anything else-as a touchstone of the availabil-
ity of federal habeas review." Wainwright v. Sykes, 433
U. S. 72, 79 (1977). Nor was Johnson v. Zerbst, on which the
Court today places much reliance, a ringing endorsement of
a jurisdiction theory. For many years prior to that case,
"the concept of jurisdiction . . . was subjected to considerable
strain," Fay v. Noia, 372 U. S. 391, 450 (1963) (Harlan, J.,
dissenting), and Johnson v. Zerbst was actually the very last
case to mention the idea, offering just "token deference
to the old concept that the [habeas] writ could only reach
jurisdictional defects," Wechsler, Habeas Corpus and the
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Souter, J., dissenting
Supreme Court: Reconsidering the Reach of the Great Writ,
59 U. Colo. L. Rev. 167, 174 (1988).
In reviving the "jurisdiction" theory, the Court skips over
the very difficulty that led to its abandonment, of devising a
standard to tell whether or not a flaw in the proceedings
leading to a conviction counts as a "jurisdictional defect."
"Once the concept of `jurisdiction' is taken beyond the ques-
tion of the court's competence to deal with the class of of-
fenses charged and the person of the prisoner" (as it must
be if the concept is to reach Gideon violations) "it becomes
a less than luminous beacon." Bator, Finality in Criminal
Law and Federal Habeas Corpus for State Prisoners, 76
Harv. L. Rev. 441, 470 (1963). Thus, if being denied ap-
pointed counsel is a "jurisdictional defect," why not being
denied effective counsel (treated as an equivalent in Strick-
land)? If a conviction obtained in violation of the right to
have appointed counsel suffers from a "jurisdictional defect"
because the right's "purpose . . . is to protect an accused from
conviction resulting from his own ignorance of his legal and
constitutional rights," Johnson v. Zerbst, supra, at 465, how
distinguish a conviction based on a guilty plea resulting from
a defendant's own ignorance of his legal and constitutional
rights? 6 It was precisely due to the futility of providing
principled answers to these questions that more than 50
years ago, and a quarter of a century before Burgett and
Tucker, "[t]he Court finally abandoned the kissing of the
jurisdictional book." P. Bator, D. Meltzer, P. Mishkin, & D.
Shapiro, Hart and Wechsler's The Federal Courts and the
Federal System 1502 (3d ed. 1988). The Court nevertheless
finds itself compelled to reembrace the concept of "jurisdic-
6 Judge Friendly suggested that a convicting court lacks jurisdiction if
"the criminal process itself has broken down [and] the defendant has not
had the kind of trial the Constitution guarantees." Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev.
142, 151 (1970). Would not this definition easily cover the Strickland and
Boykin claims Custis sought to raise at sentencing?
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510 CUSTIS v. UNITED STATES
Souter, J., dissenting
tional defect," fraught as it is with difficulties, in order to
answer the constitutional question raised by its reading of
the ACCA. Because it is "fairly possible," Ashwander, 297
U. S., at 348, to construe the ACCA to avoid these difficulties
and those associated with the other constitutional questions
I have discussed, the Ashwander rule of restraint provides
sufficient reason to reject the Court's construction of the
ACCA.
B
The rule of lenity, "which applies not only to interpre-
tations of the substantive ambit of criminal prohibitions,
but also to the penalties they impose," Albernaz v. United
States, 450 U. S. 333, 342 (1981), drives me to the same con-
clusion. Though lenity is usually invoked when there is
doubt about whether a legislature has criminalized particular
conduct, "[the] policy of lenity [also] means that the Court
will not interpret a federal criminal statute so as to increase
the penalty that it places on an individual when such an in-
terpretation can be based on no more than a guess as to what
Congress intended." Ibid. (internal quotation marks and ci-
tation omitted); cf. Bell v. United States, 349 U. S. 81, 83
(1955) ("It may fairly be said to be a presupposition of our
law to resolve doubts in the enforcement of a penal code
against the imposition of a harsher punishment"). Because
I "cannot say with assurance," United States v. Granderson,
ante, at 53, that Congress intended to require courts to en-
hance sentences on the basis of prior convictions a defendant
can show to be invalid, the rule of lenity independently re-
quires interpreting the ACCA to permit defendants to pre-
sent such challenges to the sentencing judge before sentence
is imposed.
C
The Court invokes "[e]ase of administration" to support
its constitutional holding. Ante, at 496. While I doubt that
even a powerful argument of administrative convenience
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Souter, J., dissenting
would suffice to displace the Ashwander rule, cf. Stanley v.
Illinois, 405 U. S. 645, 656 (1972), the burden argument here
is not a strong one. The burdens of allowing defendants to
challenge prior convictions at sentencing are not so severe,
and are likely less severe than those associated with the al-
ternative avenues for raising the very same claims.
For more than 20 years, as required by 21 U. S. C.
§§ 851(c)(1) and (2), federal courts have entertained claims
during sentencing under the drug laws that prior convictions
offered for enhancement are "invalid" or were "obtained in
violation of the Constitution," the unamended statute re-
flecting a continuing congressional judgment that any associ-
ated administrative burdens are justified and tolerable. For
almost a decade, federal courts have done the same under the
ACCA, see n. 2, supra, again without congressional notice of
any judicial burden thought to require relief. See also
Parke v. Raley, 506 U. S., at 32 ("In recent years state courts
have permitted various challenges to prior convictions" dur-
ing sentencing). As against this, the Court sees administra-
tive burdens arising because "sentencing courts [would be
required] to rummage through frequently nonexistent or dif-
ficult to obtain state-court transcripts or records that may
date from another era, and may come from any of the 50
States." Ante, at 496. It would not be sentencing courts
that would have to do this rummaging, however, but defend-
ants seeking to avoid enhancement, for no one disagrees that
the burden of showing the invalidity of prior convictions
would rest on the defendants.
Whatever administrative benefits may flow from insulating
sentencing courts from challenges to prior convictions will
likely be offset by the administrative costs of the alternative
means of raising the same claims. The Court acknowledges
that an individual still in custody for a state conviction relied
upon for enhancement may attack that conviction through
state or federal habeas review and, if successful, "may . . .
apply for reopening any federal sentence enhanced by the
511us2$51M 11-05-97 14:06:50 PAGES OPINPGT
512 CUSTIS v. UNITED STATES
Souter, J., dissenting
state sentences." Ante, at 497. And the Court does not
disturb uniform appellate case law holding that an individual
serving an enhanced sentence may invoke federal habeas
to reduce the sentence to the extent it was lengthened by
a prior unconstitutional conviction. See J. Liebman & R.
Hertz, Federal Habeas Corpus Practice and Procedure § 8.2,
pp. 62Â64, and n. 13.2, and § 8.4, p. 89, n. 27 (1993 Supp.)
(collecting cases).7 From the perspective of administrabil-
ity, it strikes me as entirely sensible to resolve any chal-
lenges to the lawfulness of a predicate conviction in the sin-
gle sentencing proceeding, especially since defendants there
will normally be represented by counsel, who bring efficiency
to the litigation (as well as equitable benefits).
III
Because I cannot agree that Congress has required federal
courts to impose enhanced sentences on the basis of prior
convictions a defendant can show to be constitutionally in-
valid, I respectfully dissent.
7 Maleng v. Cook, 490 U. S. 488 (1989), holding that a federal habeas
court has jurisdiction to entertain a defendant's attack on a sentence to the
extent it was enhanced by a prior, allegedly unconstitutional conviction,
"express[ed] no view on the extent to which the [prior] conviction itself
may be subject to challenge in the attack upon the . . . sentenc[e] which it
was used to enhance." Id., at 494 (citing 28 U. S. C. § 2254 Rule 9(a)).
Court of Appeals decisions postdating Maleng have uniformly read it as
consistent with the view that federal habeas courts may review prior con-
victions relied upon for sentence enhancement and grant appropriate re-
lief. See Collins v. Hesse, 957 F. 2d 746, 748 (CA10 1992) (discussing Ma-
leng and citing cases). In addition, depending on the circumstances, the
writ of coram nobis may be available to challenge a prior conviction relied
upon at sentencing, see United States v. Morgan, 346 U. S. 502 (1954);
Crank v. Duckworth, 905 F. 2d 1090, 1091 (CA7 1990); Lewis v. United
States, 902 F. 2d 576, 577 (CA7 1990), and, if successful, the defendant may
petition the sentencing court for reconsideration of the enhanced sentence,
see Restatement (Second) of Judgments § 16 (1982).
511US2 Unit: $U52 [07-11-99 18:27:03] PAGES PGT: OPIN
OCTOBER TERM, 1993 513
Syllabus
POSTERS `N' THINGS, LTD., et al. v.
UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 92Â903. Argued October 5, 1993-Decided May 23, 1994
Upon searching petitioner Acty's residence and the premises of her busi-
ness, petitioner Posters `N' Things, Ltd., officers seized, among other
things, pipes, "bongs," scales, "roach clips," drug diluents, and adver-
tisements describing various drug-related products sold by petitioners.
Petitioners were indicted on, and convicted in the District Court of, a
number of charges, including the use of an interstate conveyance as part
of a scheme to sell drug paraphernalia in violation of former 21 U. S. C.
§ 857(a)(1), a provision of the Mail Order Drug Paraphernalia Control
Act. In affirming, the Court of Appeals held, inter alia, that § 857 re-
quires proof of scienter and that the Act is not unconstitutionally vague.
Held:1. Section 857 requires proof of scienter. Section §857(d)-which,
among other things, defines "drug paraphernalia" as any equipment
"primarily intended or designed for use" with illegal drugs-does not
serve as the basis for a subjective-intent requirement on the part of the
defendant, but merely establishes objective standards for determining
what constitutes drug paraphernalia: The "designed for use" element
refers to the manufacturer's design, while the "primarily intended . . .
for use" standard refers generally to an item's likely use. However,
neither this conclusion nor the absence of the word "knowingly" in
§ 857(d)'s text means that Congress intended to dispense entirely with a
scienter requirement. Rather, § 857(a)(1) is properly construed under
this Court's decisions as requiring the Government to prove that the
defendant knowingly made use of an interstate conveyance as part of a
scheme to sell items that he knew were likely to be used with illegal
drugs. It need not prove specific knowledge that the items are "drug
paraphernalia" within the statute's meaning. Pp. 516Â525.
2. Section 857 is not unconstitutionally vague as applied to petition-
ers, since § 857(d) is sufficiently determinate with respect to the items
it lists as constituting per se drug paraphernalia, including many of the
items involved in this case; since § 857(e) sets forth objective criteria for
assessing whether items constitute drug paraphernalia; and since the
scienter requirement herein inferred assists in avoiding any vagueness
problem. Because petitioners operated a full-scale "head shop" devoted
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514 POSTERS `N' THINGS, LTD. v. UNITED STATES
Opinion of the Court
substantially to the sale of drug paraphernalia, the Court need not ad-
dress § 857's possible application to a legitimate merchant selling only
items-such as scales, razor blades, and mirrors-that may be used for
legitimate as well as illegitimate purposes. Pp. 525Â526.
3. Petitioner Acty's other contentions are not properly before the
Court. P. 527.
969 F. 2d 652, affirmed.
Blackmun, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O'Connor, Souter, and Ginsburg, JJ., joined.
Scalia, J., filed an opinion concurring in the judgment, in which Kennedy
and Thomas, JJ., joined, post, p. 527.
Alfredo Parrish argued the cause for petitioners. With
him on the brief was Elizabeth Kruidenier.
Deputy Solicitor General Bryson argued the cause for
the United States. With him on the brief were Solicitor
General Days, Acting Assistant Attorney General Keeney,
Robert A. Long, Jr., and Joel M. Gershowitz.
Justice Blackmun delivered the opinion of the Court.
In this case we must address the scienter requirement of
the Mail Order Drug Paraphernalia Control Act, Pub. L. 99Â
570, Tit. I, § 1822, 100 Stat. 3207Â51, formerly codified, as
amended, at 21 U. S. C. § 857, and the question whether the
Act is unconstitutionally vague as applied to petitioners.
I
In 1977, petitioner Lana Christine Acty formed petitioner
Posters `N' Things, Ltd. (Posters), an Iowa corporation.
The corporation operated three businesses, a diet-aid store,
an art gallery, and a general merchandise outlet originally
called "Forbidden Fruit," but later renamed "World Wide
Imports." Law enforcement authorities received com-
plaints that the merchandise outlet was selling drug para-
phernalia. Other officers investigating drug cases found
drug diluents (chemicals used to "cut" or dilute illegal drugs)
and other drug paraphernalia that had been purchased from
Forbidden Fruit.
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Cite as: 511 U. S. 513 (1994) 515
Opinion of the Court
In March 1990, officers executed warrants to search pe-
titioners' business premises and Acty's residence. They
seized various items, including pipes, bongs,1 scales, roach
clips,2 and drug diluents including mannitol and inositol.
The officers also seized cash, business records, and catalogs
and advertisements describing products sold by petitioners.
The advertisements offered for sale such products as "Coke
Kits," "Free Base Kits," 3 and diluents sold under the names
"PseudoCaine" and "Procaine."
Indictments on a number of charges relating to the sale of
drug paraphernalia eventually were returned against peti-
tioners and George Michael Moore, Acty's husband. A joint
trial took place before a jury in the United States District
Court for the Southern District of Iowa.
Petitioners were convicted of using an interstate convey-
ance as part of a scheme to sell drug paraphernalia, in viola-
tion of former 21 U. S. C. § 857(a)(1), and of conspiring to
commit that offense, in violation of 18 U. S. C. § 371. Peti-
tioner Acty also was convicted of aiding and abetting the
manufacture and distribution of cocaine, in violation of 21
U. S. C. § 841(a)(1); investing income derived from a drug
offense, in violation of 21 U. S. C. § 854; money laundering,
in violation of 18 U. S. C. § 1956(a)(1); and engaging in mone-
tary transactions with the proceeds of unlawful activity, in
violation of 18 U. S. C. § 1957. Acty was sentenced to im-
prisonment for 108 months, to be followed by a 5-year term
1 A "bong" is a "water pipe that consists of a bottle or a vertical tube
partially filled with liquid and a smaller tube ending in a bowl, used often
in smoking narcotic substances." American Heritage Dictionary 215 (3d
ed. 1992).
2 The statute defines "roach clips" as "objects used to hold burning mate-
rial, such as a marihuana cigarette, that has become too small or too short
to be held in the hand." 21 U. S. C. § 857(d)(5).
3 The term "freebase" means "[t]o purify (cocaine) by dissolving it in
a heated solvent and separating and drying the precipitate" or "[t]o use
(cocaine purified in this way) by burning it and inhaling the fumes."
American Heritage Dictionary 723 (3d ed. 1992).
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516 POSTERS `N' THINGS, LTD. v. UNITED STATES
Opinion of the Court
of supervised release, and was fined $150,000. Posters was
fined $75,000.
The United States Court of Appeals for the Eighth Circuit
affirmed the convictions. 969 F. 2d 652 (1992). Because of
an apparent conflict among the Courts of Appeals as to the
nature of the scienter requirement of former 21 U. S. C.
§ 857,4 we granted certiorari. 507 U. S. 971 (1993).
II
Congress enacted the Mail Order Drug Paraphernalia
Control Act as part of the Anti-Drug Abuse Act of 1986,
Pub. L. 99Â570, 100 Stat. 3207. As originally enacted, and
as applicable in this case, the statute, 21 U. S. C. § 857(a),5
provides:
"It is unlawful for any person-
"(1) to make use of the services of the Postal Service
or other interstate conveyance as part of a scheme to
sell drug paraphernalia;
"(2) to offer for sale and transportation in interstate
or foreign commerce drug paraphernalia; or
"(3) to import or export drug paraphernalia."
Section 857(b) provides that anyone convicted under the
statute shall be imprisoned for not more than three years
and fined not more than $100,000.
4 Compare the decision of the Eighth Circuit in this case with United
States v. Mishra, 979 F. 2d 301 (CA3 1992); United States v. Murphy, 977
F. 2d 503 (CA10 1992); United States v. Schneiderman, 968 F. 2d 1564
(CA2 1992), cert. denied, 507 U. S. 921 (1993); and United States v. 57,261
Items of Drug Paraphernalia, 869 F. 2d 955 (CA6), cert. denied, 493 U. S.
933 (1989).
5 In 1990, Congress repealed § 857 and replaced it with 21 U. S. C. § 863
(1988 ed., Supp. IV). See Crime Control Act of 1990, Pub. L. 101Â647,
§ 2401, 104 Stat. 4858. The language of § 863 is identical to that of former
§ 857 except in the general description of the offense. Section 863(a)
makes it unlawful for any person "(1) to sell or offer for sale drug para-
phernalia; (2) to use the mails or any other facility of interstate com-
merce to transport drug paraphernalia; or (3) to import or export drug
paraphernalia."
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Opinion of the Court
A
Section 857(a) does not contain an express scienter re-
quirement. Some courts, however, have located a scienter
requirement in the statute's definitional provision, § 857(d),
which defines the term "drug paraphernalia" as "any equip-
ment, product, or material of any kind which is primarily
intended or designed for use" with illegal drugs.6 Petition-
ers argue that the term "primarily intended" in this provi-
sion establishes a subjective-intent requirement on the part
of the defendant. We disagree, and instead adopt the Gov-
6 Section 857(d) provides in full:
"The term `drug paraphernalia' means any equipment, product, or mate-
rial of any kind which is primarily intended or designed for use in manu-
facturing, compounding, converting, concealing, producing, processing,
preparing, injecting, ingesting, inhaling, or otherwise introducing into the
human body a controlled substance, possession of which is unlawful under
the Controlled Substances Act (title II of Public Law 91Â513) [21 U. S. C.
§§ 801 et seq.]. It includes items primarily intended or designed for use in
ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish,
hashish oil, PCP, or amphetamines into the human body, such as-
"(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with
or without screens, permanent screens, hashish heads, or punctured
metal bowls;
"(2) water pipes;
"(3) carburetion tubes and devices;
"(4) smoking and carburetion masks;
"(5) roach clips: meaning objects used to hold burning material, such as
a marihuana cigarette, that has become too small or too short to be held
in the hand;
"(6) miniature spoons with level capacities of one-tenth cubic centimeter
or less;
"(7) chamber pipes;
"(8) carburetor pipes;
"(9) electric pipes;
"(10) air-driven pipes;
"(11) chillums;
"(12) bongs;
"(13) ice pipes or chillers;
"(14) wired cigarette papers; or
"(15) cocaine freebase kits."
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518 POSTERS `N' THINGS, LTD. v. UNITED STATES
Opinion of the Court
ernment's position that § 857(d) establishes objective stand-
ards for determining what constitutes drug paraphernalia.
Section 857(d) identifies two categories of drug parapher-
nalia: items "primarily intended . . . for use" with controlled
substances and items "designed for use" with such sub-
stances. This Court's decision in Hoffman Estates v. Flip-
side, Hoffman Estates, Inc., 455 U. S. 489, 500 (1982), gov-
erns the "designed for use" prong of § 857(d). In that case,
the Court considered an ordinance requiring a license for the
sale of items "designed or marketed for use with illegal can-
nabis or drugs," and concluded that the alternative "de-
signed . . . for use" standard referred to "the design of the
manufacturer, not the intent of the retailer or customer."
Id., at 501. An item is "designed for use," this Court ex-
plained, if it "is principally used with illegal drugs by virtue
of its objective features, i. e., features designed by the manu-
facturer." Ibid.
The objective characteristics of some items establish that
they are designed specifically for use with controlled sub-
stances. Such items, including bongs, cocaine freebase kits,
and certain kinds of pipes, have no other use besides con-
trived ones (such as use of a bong as a flower vase). Items
that meet the "designed for use" standard constitute drug
paraphernalia irrespective of the knowledge or intent of one
who sells or transports them. See United States v. Mishra,
979 F. 2d 301, 308 (CA3 1992); United States v. Schneider-
man, 968 F. 2d 1564, 1567 (CA2 1992), cert. denied, 507 U. S.
921 (1993). Accordingly, the "designed for use" element of
§ 857(d) does not establish a scienter requirement with re-
spect to sellers such as petitioners.
The "primarily intended . . . for use" language of § 857(d)
presents a more difficult problem. The language might be
understood to refer to the state of mind of the defendant
(here, the seller), and thus to require an intent on the part
of the defendant that the items at issue be used with drugs.
Some Courts of Appeals have adopted this construction, see
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Opinion of the Court
Mishra, 979 F. 2d, at 307; United States v. Murphy, 977 F. 2d
503, 506 (CA10 1992); Schneiderman, 968 F. 2d, at 1567;
United States v. 57,261 Items of Drug Paraphernalia, 869
F. 2d 955, 957 (CA6), cert. denied, 493 U. S. 933 (1989), and
this Court in Hoffman Estates interpreted the arguably par-
allel phrase "marketed for use" as describing "a retailer's
intentional display and marketing of merchandise," 455 U. S.,
at 502, and thus requiring scienter. On the other hand,
there is greater ambiguity in the phrase "primarily intended
. . . for use" than in the phrase "marketed for use." The
term "primarily intended" could refer to the intent of non-
defendants, including manufacturers, distributors, retailers,
buyers, or users. Several considerations lead us to conclude
that "primarily intended . . . for use" refers to a product's
likely use rather than to the defendant's state of mind.
First, the structure of the statute supports an objective
interpretation of the "primarily intended . . . for use" stand-
ard. Section 857(d) states that drug paraphernalia "includes
items primarily intended or designed for use in" consuming
specified illegal drugs, "such as . . . ," followed by a list of 15
items constituting per se drug paraphernalia. The inclusion
of the "primarily intended" term along with the "designed
for use" term in the introduction to the list of per se para-
phernalia suggests that at least some of the per se items
could be "primarily intended" for use with illegal drugs irre-
spective of a particular defendant's intent-that is, as an
objective matter. Moreover, § 857(e) lists eight objective
factors that may be considered "in addition to all other
logically relevant factors" in "determining whether an item
constitutes drug paraphernalia." 7 These factors generally
7 Section 857(e) provides:
"In determining whether an item constitutes drug paraphernalia, in
addition to all other logically relevant factors, the following may be
considered:
"(1) instructions, oral or written, provided with the item concerning
its use;
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520 POSTERS `N' THINGS, LTD. v. UNITED STATES
Opinion of the Court
focus on the actual use of the item in the community. Con-
gress did not include among the listed factors a defendant's
statements about his intent or other factors directly estab-
lishing subjective intent. This omission is significant in
light of the fact that the parallel list contained in the Drug
Enforcement Administration's Model Drug Paraphernalia
Act, on which § 857 was based,8 includes among the relevant
factors "[s]tatements by an owner . . . concerning [the ob-
ject's] use" and "[d]irect or circumstantial evidence of the
intent of an owner . . . to deliver it to persons whom he
knows, or should reasonably know, intend to use the object
to facilitate a violation of this Act." 9
An objective construction of the definitional provision also
finds support in § 857(f), which establishes an exemption for
items "traditionally intended for use with tobacco prod-
ucts." 10 An item's "traditional" use is not based on the sub-
"(2) descriptive materials accompanying the item which explain or de-
pict its use;
"(3) national and local advertising concerning its use;
"(4) the manner in which the item is displayed for sale;
"(5) whether the owner, or anyone in control of the item, is a legitimate
supplier of like or related items to the community, such as a licensed dis-
tributor or dealer of tobacco products;
"(6) direct or circumstantial evidence of the ratio of sales of the item(s)
to the total sales of the business enterprise;
"(7) the existence and scope of legitimate uses of the item in the commu-
nity; and
"(8) expert testimony concerning its use."
8 See Schneiderman, 968 F. 2d, at 1566.
9 See Brief for United States 6aÂ7a. The Model Act lists 14 factors to
be considered in addition to all other logically relevant factors in determin-
ing whether an object is drug paraphernalia. Several of the factors are
similar or identical to those listed in § 857(e).
10 Section 857(f) provides:
"This section shall not apply to-
"(1) any person authorized by local, State, or Federal law to manufac-
ture, possess, or distribute such items; or
"(2) any item that, in the normal lawful course of business, is imported,
exported, transported, or sold through the mail or by any other means,
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Opinion of the Court
jective intent of a particular defendant. In 1988, Congress
added the word "traditionally" in place of "primarily" in the
§ 857(f) exemption in order to "clarif[y]" the meaning of the
exemption. Pub. L. 100Â690, Tit. VI, § 6485, 102 Stat. 4384.
Congress' characterization of the amendment as merely
"clarifying" the law suggests that the original phrase-"pri-
marily intended"-was not a reference to the fundamentally
different concept of a defendant's subjective intent.
Finally, an objective construction of the phrase "primarily
intended" is consistent with the natural reading of similar
language in definitional provisions of other federal criminal
statutes. See 18 U. S. C. § 921(a)(17)(B) ("armor piercing
ammunition" excludes any projectile that is "primarily in-
tended" to be used for sporting purposes, as found by the
Secretary of the Treasury); 21 U. S. C. § 860(d)(2) (1988 ed.,
Supp. V) ("youth center" means a recreational facility "in-
tended primarily for use by persons under 18 years of age").
We conclude that the term "primarily intended . . . for use"
in § 857(d) is to be understood objectively and refers gen-
erally to an item's likely use.11 Rather than serving as the
and traditionally intended for use with tobacco products, including any
pipe, paper, or accessory."
11 Although we describe the definition of "primarily intended" as "objec-
tive," we note that it is a relatively particularized definition, reaching be-
yond the category of items that are likely to be used with drugs by virtue
of their objective features. Among the factors that are relevant to
whether an item constitutes drug paraphernalia are "instructions, oral or
written, provided with the item concerning its use," § 857(e)(1), and "the
manner in which the item is displayed for sale," § 857(e)(4). Thus, while
scales or razor blades as a general class may not be designed specifically
for use with drugs, a subset of those items in a particular store may be
"primarily intended" for use with drugs by virtue of the circumstances of
their display and sale.
We disagree with Justice Scalia insofar as he would hold that a box
of paper clips is converted into drug paraphernalia by the mere fact that
a customer mentions to the seller that the paper clips will make excellent
roach clips. Section 857(d) states that items "primarily intended" for use
with drugs constitute drug paraphernalia, indicating that it is the likely
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522 POSTERS `N' THINGS, LTD. v. UNITED STATES
Opinion of the Court
basis for a subjective scienter requirement, the phrase "pri-
marily intended or designed for use" in the definitional pro-
vision establishes objective standards for determining what
constitutes drug paraphernalia.12
B
Neither our conclusion that Congress intended an objec-
tive construction of the "primarily intended" language in
§ 857(d), nor the fact that Congress did not include the word
"knowingly" in the text of § 857, justifies the conclusion that
Congress intended to dispense entirely with a scienter re-
quirement. This Court stated in United States v. United
States Gypsum Co., 438 U. S. 422, 438 (1978): "Certainly far
more than the simple omission of the appropriate phrase
from the statutory definition is necessary to justify dispens-
ing with an intent requirement." Even statutes creating
public welfare offenses generally require proof that the
defendant had knowledge of sufficient facts to alert him to
the probability of regulation of his potentially dangerous
conduct. See Staples v. United States, post, at 607, and n. 3;
use of customers generally, not any particular customer, that can render a
multiple-use item drug paraphernalia.
12 The legislative history of the Mail Order Drug Paraphernalia Control
Act consists of one House subcommittee hearing. See Hearing on H. R.
1625 before the Subcommittee on Crime of the House Committee on the
Judiciary, 99th Cong., 2d Sess. (1986). We recognize that a colloquy with
the principal House sponsor of the Act during this hearing lends some
support to a subjective interpretation of the "primarily intended" lan-
guage of § 857(d). When asked to whose intent this language referred,
Rep. Levine initially stated: "The purpose of the language . . . is to identify
as clearly as possible the intent of manufacturer and the seller to market
a particular item as drug paraphernalia, subject to the interpretation of a
trial court." Id., at 48. When pressed further, he stated: "[I]t would be
the intent on the part of the defendant in a particular trial." Ibid. Given
the language and structure of the statute, we are not persuaded that these
comments of a single member at a subcommittee hearing are sufficient to
show a desire on the part of Congress to locate a scienter requirement in
the definitional provision of § 857.
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Opinion of the Court
United States v. Dotterweich, 320 U. S. 277, 281 (1943). We
conclude that § 857 is properly construed as containing a
scienter requirement.
We turn to the nature of that requirement in this statute.
In United States v. Bailey, 444 U. S. 394, 404 (1980), this
Court distinguished between the mental states of " `pur-
pose' " and " `knowledge,' " explaining, id., at 408, that, "ex-
cept in narrow classes of offenses, proof that the defendant
acted knowingly is sufficient to support a conviction." In
Bailey, the Court read into the federal escape statute, 18
U. S. C. § 751(a), a requirement that "an escapee knew his
actions would result in his leaving physical confinement
without permission," rejecting a heightened mens rea that
would have required " `an intent to avoid confinement.' "
444 U. S., at 408. Similarly, in United States v. United
States Gypsum Co., 438 U. S., at 444, the Court addressed
the question whether a criminal violation of the Sherman
Act "requires, in addition to proof of anticompetitive effects,
a demonstration that the disputed conduct was undertaken
with the `conscious object' of producing such effects, or
whether it is sufficient that the conduct is shown to have
been undertaken with knowledge that the proscribed effects
would most likely follow." The Court concluded that "action
undertaken with knowledge of its probable consequences . . .
can be a sufficient predicate for a finding of criminal liability
under the antitrust laws." Ibid.
As in Bailey and United States Gypsum, we conclude that
a defendant must act knowingly in order to be liable under
§ 857. Requiring that a seller of drug paraphernalia act
with the "purpose" that the items be used with illegal drugs
would be inappropriate. The purpose of a seller of drug par-
aphernalia is to sell his product; the seller is indifferent as
to whether that product ultimately is used in connection with
illegal drugs or otherwise. If § 857 required a purpose that
the items be used with illegal drugs, individuals could avoid
liability for selling bongs and cocaine freebase kits simply by
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524 POSTERS `N' THINGS, LTD. v. UNITED STATES
Opinion of the Court
establishing that they lacked the "conscious object" that the
items be used with illegal drugs.
Further, we do not think that the knowledge standard in
this context requires knowledge on the defendant's part that
a particular customer actually will use an item of drug para-
phernalia with illegal drugs. It is sufficient that the defend-
ant be aware that customers in general are likely to use the
merchandise with drugs. Therefore, the Government must
establish that the defendant knew that the items at issue
are likely to be used with illegal drugs. Cf. United States
Gypsum, 438 U. S., at 444 (knowledge of "probable conse-
quences" sufficient for conviction).13 A conviction under
§ 857(a)(1), then, requires the Government to prove that the
defendant knowingly made use of an interstate conveyance
as part of a scheme to sell items that he knew were likely to
be used with illegal drugs.
Finally, although the Government must establish that the
defendant knew that the items at issue are likely to be used
with illegal drugs, it need not prove specific knowledge that
the items are "drug paraphernalia" within the meaning of
the statute. Cf. Hamling v. United States, 418 U. S. 87
(1974) (statute prohibiting mailing of obscene materials does
13 The knowledge standard that we adopt parallels the standard applied
by those courts that have based § 857's scienter requirement on the "pri-
marily intended" language of the definitional provision. See Mishra, 979
F. 2d, at 307 (Government must prove that defendant "contemplated, or
reasonably expected under the circumstances, that the item sold or offered
for sale would be used with illegal drugs"); Schneiderman, 968 F. 2d, at
1567 (Government must prove that defendant "knew there was a strong
probability the items would be so used"); 57,261 Items of Drug Parapher-
nalia, 869 F. 2d, at 957 (Government must prove defendant's "knowledge
that there is a strong probability that the items will be used" with illegal
drugs). The scienter requirement that we have inferred applies with re-
spect to all items of drug paraphernalia, while at least some of the lower
courts appear to have confined their scienter requirement to those items
"primarily intended" (but not "designed") for use with illegal drugs. See,
e. g., Schneiderman, 968 F. 2d, at 1567.
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Opinion of the Court
not require proof that defendant knew the materials at issue
met the legal definition of "obscenity"). As in Hamling, it
is sufficient for the Government to show that the defendant
"knew the character and nature of the materials" with which
he dealt. Id., at 123.
In light of the above, we conclude that the jury instruc-
tions given by the District Court adequately conveyed the
legal standards for petitioners' convictions under § 857.14
III
Petitioners argue that § 857 is unconstitutionally vague as
applied to them in this case. "[T]he void-for-vagueness doc-
trine requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can under-
stand what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement."
Kolender v. Lawson, 461 U. S. 352, 357 (1983); see also
Grayned v. Rockford, 408 U. S. 104, 108Â109 (1972). What-
ever its status as a general matter, we cannot say that § 857
is unconstitutionally vague as applied in this case.
First, the list of items in § 857(d) constituting per se drug
paraphernalia provides individuals and law enforcement of-
ficers with relatively clear guidelines as to prohibited con-
duct. With respect to the listed items, there can be little
14 The District Court instructed the jury that, in order to find petitioners
guilty, it was required to find that they "made use of [an] interstate con-
veyance knowingly as part of a scheme to sell drug paraphernalia," that
"the items in question constitute drug paraphernalia," defined as items
"primarily intended or designed for use" with illegal drugs, and that peti-
tioners "knew the nature and character of the items." The District Court
elaborated on the knowledge requirement, describing it as "knowledge of
the defendants as to the nature, character, and use of the items being
sold or offered for sale at the store." App. 16Â35. We think that the
instructions adequately informed the jury that it could convict petitioners
only if it found that they knew that the items at issue were likely to be
used with illegal drugs.
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526 POSTERS `N' THINGS, LTD. v. UNITED STATES
Opinion of the Court
doubt that the statute is sufficiently determinate to meet
constitutional requirements. Many items involved in this
case-including bongs, roach clips, and pipes designed for
use with illegal drugs-are among the items specifically
listed in § 857(d).
Second, § 857(e) sets forth objective criteria for assessing
whether items constitute drug paraphernalia. These factors
minimize the possibility of arbitrary enforcement and assist
in defining the sphere of prohibited conduct under the stat-
ute. See Mishra, 979 F. 2d, at 309; Schneiderman, 968 F. 2d,
at 1568. Section 857(f)'s exemption for tobacco-related
products further limits the scope of the statute and precludes
its enforcement against legitimate sellers of lawful products.
Finally, the scienter requirement that we have inferred
in § 857 assists in avoiding any vagueness problem. "[T]he
Court has recognized that a scienter requirement may miti-
gate a law's vagueness, especially with respect to the ade-
quacy of notice . . . that [the] conduct is proscribed." Hoff-
man Estates, 455 U. S., at 499.
Section 857's application to multiple-use items-such as
scales, razor blades, and mirrors-may raise more serious
concerns. Such items may be used for legitimate as well
as illegitimate purposes, and "a certain degree of ambiguity
necessarily surrounds their classification." Mishra, 979
F. 2d, at 309. This case, however, does not implicate vague-
ness or other due process concerns with respect to such
items. Petitioners operated a full-scale "head shop," a busi-
ness devoted substantially to the sale of products that clearly
constituted drug paraphernalia. The Court stated in Hoff-
man Estates: "The theoretical possibility that the village will
enforce its ordinance against a paper clip placed next to Roll-
ing Stone magazine . . . is of no due process significance un-
less the possibility ripens into a prosecution." 455 U. S., at
503Â504, n. 21. Similarly here, we need not address the pos-
sible application of § 857 to a legitimate merchant engaging
in the sale of only multiple-use items.
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Scalia, J., concurring in judgment
IV
Petitioner Acty's other contentions are not properly before
the Court. First, she argues that she was improperly con-
victed of aiding and abetting the manufacture and distribu-
tion of cocaine because the jury instructions created a "pre-
sumption" that certain items of drug paraphernalia "were
intended for manufacturing with a controlled substance."
Brief for Petitioners 17. This argument was neither raised
in nor addressed by the Court of Appeals. See Lawn v.
United States, 355 U. S. 339, 362Â363, n. 16 (1958). Second,
Acty asserts that her convictions for money laundering, in-
vesting income derived from a drug offense, and engaging in
monetary transactions with the proceeds of unlawful activity
must be reversed. These contentions were not presented in
the petition for writ of certiorari, and therefore they are not
properly raised here. See this Court's Rule 14.1(a). Fi-
nally, the petition presented the question whether the proof
was adequate to support Acty's conviction for aiding and
abetting the manufacture and distribution of cocaine; but
petitioners' brief on the merits fails to address the issue and
therefore abandons it. See Russell v. United States, 369
U. S. 749, 754, n. 7 (1962).
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
Justice Scalia, with whom Justice Kennedy and
Justice Thomas join, concurring in the judgment.
I agree with the Court that the sale of items likely to be
used for drug purposes, with knowledge of such likely use,
violates former 21 U. S. C. § 857; and that a subjective intent
on the part of the defendant that the items sold be used for
drug purposes is not necessary for conviction. That is all
the scienter analysis necessary to decide the present case.
The Court goes further, however, and says, ante, at 518Â522,
that such a subjective intent is not only not necessary for
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528 POSTERS `N' THINGS, LTD. v. UNITED STATES
Scalia, J., concurring in judgment
conviction but is not sufficient for conviction-i. e., that the
sale of an item with the intent that it be used for drug pur-
poses does not constitute a violation. I disagree. In my
view, the statutory language "primarily intended . . . for use"
causes a sale to be a sale of drug paraphernalia where the
seller intends the item to be used for drug purposes. A re-
jection of that view, if consistently applied, would cause "pri-
marily intended or designed for use" to mean nothing more
than "designed for use." While redundancy is not unheard
of in statutory draftsmanship, neither is it favored in statu-
tory interpretation. Kungys v. United States, 485 U. S. 759,
778 (1988).
Some of the provisions of § 857(e), which describes factors
that may be considered in determining whether an item con-
stitutes drug paraphernalia, clearly suggest that what is not
covered paraphernalia by nature can be made such by the
seller's intent.* Section 857(e)(1) lists as one of the relevant
factors "instructions, oral or written, provided with the item
concerning its use." This envisions, I think, that a drug-
store owner who instructs the purchaser how to use the pur-
chased drinking straw or razor blade in the ingestion of
drugs converts what would otherwise be a lawful sale into a
sale of drug paraphernalia. Section 857(e)(4) lists as a rele-
vant factor "the manner in which the item is displayed for
sale." That would surely not change the nature of the item,
but it would cast light upon the use intended by the person
who is selling and displaying it. And § 857(e)(5) lists as a
relevant factor "whether the owner . . . is a legitimate sup-
*For purposes of the present case, all we need decide is that the seller's
intent will qualify. It would also seem true, however (since the statute
contains no limitation on whose intent-manufacturer's, seller's, or buy-
er's-can qualify), that the buyer's intended use will cause an otherwise
harmless item to be drug paraphernalia. To convict a seller on such a
basis, of course, the scienter requirement of the statute would require that
the seller have known of such intended use.
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Scalia, J., concurring in judgment
plier of like or related items." Again, that casts light upon
nothing but the seller's intent regarding use.
On first glance, the Court's claim that "primarily intended"
does not refer to the defendant's state of mind seems to be
supported by § 857(f)(2), which exempts from the entire sec-
tion the sale, "in the normal lawful course of business," of
items "traditionally intended for use with tobacco products."
This might be thought to suggest that the section applies
only to categories of items, and not at all to items sold with
a particular intent. On further consideration, however, it is
apparent that § 857(f)(2) militates against, rather than in
favor of, the Court's view. Unless unlawful intent could
have produced liability, there would have been no need for
the exception. Tobacco pipes are tobacco pipes, and ciga-
rette paper is cigarette paper; neither could possibly meet
the Court's test of being "items . . . likely to be used with
illegal drugs," ante, at 524. Only the criminalizing effect
of an unlawful intent to sell for drug use puts tobacconists
at risk. Because of the ready (though not ordinary) use of
items such as cigarette paper and tobacco pipes for drug pur-
poses, tobacconists would have been in constant danger of
being accused of having an unlawful intent in their sales-so
Congress gave them what amounts to a career exception.
Through most of the Court's opinion, an item's "likely use"
seems to refer to the objective features of the item that ren-
der it usable for one purpose or another. At the very end
of the relevant discussion, however, in apparent response to
the difficulties presented by the factors listed in § 857(e), one
finds, in a footnote, the following:
"Although we describe the definition of `primarily in-
tended' as `objective,' we note that it is a relatively par-
ticularized definition, reaching beyond the category of
items that are likely to be used with drugs by virtue of
their objective features. . . . Thus, while scales or razor
blades as a general class may not be designed specifi-
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530 POSTERS `N' THINGS, LTD. v. UNITED STATES
Scalia, J., concurring in judgment
cally for use with drugs, a subset of those items in a
particular store may be `primarily intended' for use with
drugs by virtue of the circumstances of their display and
sale." Ante, at 521, n. 11.
If by the "circumstances of . . . sale" the Court means to
include the circumstance that the seller says, "You will find
these scales terrific for weighing drugs," or that the buyer
asks, "Do you have any scales suitable for weighing
drugs?"-then there is really very little, if any, difference
between the Court's position and mine. Intent can only be
known, of course, through objective manifestations. If what
the Court means by "a relatively particularized objective
definition" is that all objective manifestations of the seller's
intent are to be considered part of the "circumstances of
sale," then there is no difference whatever between us
(though I persist in thinking it would be simpler to say that
"intended for sale" means "intended for sale" than to invent
the concept of "a relatively particularized objective intent").
If, on the other hand, only some and not all objective mani-
festations of the seller's intent are to be considered part of
the "circumstances of sale" (manner of display, for example,
but not manner of oral promotion), then the Court ought to
provide some description of those that do and those that
do not, and (if possible) some reason for the distinction.
Finally, I cannot avoid noting that the only available legis-
lative history-statements by the very Congressman who in-
troduced the text in question, see ante, at 522, n. 12-unam-
biguously supports my view. I point that out, not because
I think those statements are pertinent to our analysis, but
because it displays once again that our acceptance of the sup-
posed teachings of legislative history is more sporadic than
our professions of allegiance to it. See Thunder Basin Coal
Co. v. Reich, 510 U. S. 200, 219 (1994) (Scalia, J., concur-
ring in part and concurring in judgment); Wisconsin Public
Intervenor v. Mortier, 501 U. S. 597, 617 (1991) (Scalia, J.,
concurring in judgment).
511us2$53z 11-03-97 22:06:57 PAGES OPINPGT
OCTOBER TERM, 1993 531
Syllabus
BFP v. RESOLUTION TRUST CORPORATION, as
receiver of IMPERIAL FEDERAL SAVINGS
ASSOCIATION, et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 92Â1370. Argued December 7, 1993-Decided May 23, 1994
Petitioner BFP took title to a California home subject to, inter alia, a
deed of trust in favor of Imperial Savings Association. After Imperial
entered a notice of default because its loan was not being serviced, the
home was purchased by respondent Osborne for $433,000 at a properly
noticed foreclosure sale. BFP soon petitioned for bankruptcy and, act-
ing as a debtor in possession, filed a complaint to set aside the sale to
Osborne as a fraudulent transfer, claiming that the home was worth
over $725,000 when sold and thus was not exchanged for a "reasonably
equivalent value" under 11 U. S. C. § 548(a)(2). The Bankruptcy Court
granted summary judgment to Imperial. The District Court affirmed
the dismissal, and a bankruptcy appellate panel affirmed the judgment,
holding that consideration received in a noncollusive and regularly con-
ducted nonjudicial foreclosure sale establishes "reasonably equivalent
value" as a matter of law. The Court of Appeals affirmed.
Held: A "reasonably equivalent value" for foreclosed real property is
the price in fact received at the foreclosure sale, so long as all the
requirements of the State's foreclosure law have been complied with.
Pp. 535Â549.
(a) Contrary to the positions taken by some Courts of Appeals, fair
market value is not necessarily the benchmark against which determina-
tion of reasonably equivalent value is to be measured. It may be pre-
sumed that Congress acted intentionally when it used the term "fair
market value" elsewhere in the Bankruptcy Code but not in § 548, par-
ticularly when the omission entails replacing standard legal terminology
with a neologism. Moreover, fair market value presumes market condi-
tions that, by definition, do not obtain in the forced-sale context, since
property sold within the time and manner strictures of state-prescribed
foreclosure is simply worth less than property sold without such restric-
tions. "Reasonably equivalent value" also cannot be read to mean a
"reasonable" or "fair" forced-sale price, such as a percentage of fair mar-
ket value. To specify a federal minimum sale price beyond what state
foreclosure law requires would extend bankruptcy law well beyond the
traditional field of fraudulent transfers and upset the coexistence that
511us2$53z 11-03-97 22:06:57 PAGES OPINPGT
532 BFP v. RESOLUTION TRUST CORPORATION
Syllabus
fraudulent transfer law and foreclosure law have enjoyed for over 400
years. While, under fraudulent transfer law, a "grossly inadequate
price" raises a rebuttable presumption of actual fraudulent intent, it is
black letter foreclosure law that, when a State's procedures are followed,
the mere inadequacy of a foreclosure sale price is no basis for setting
the sale aside. Absent clearer textual guidance than the phrase "rea-
sonably equivalent value"-a phrase entirely compatible with pre-
existing practice-the Court will not presume that Congress intended
to displace traditional state regulation with an interpretation that would
profoundly affect the important state interest in the security and stabil-
ity of title to real property. Pp. 535Â545.
(b) The conclusion reached here does not render § 548(a)(2) superflu-
ous. The "reasonably equivalent value" criterion will continue to have
independent meaning outside the foreclosure context, and § 548(a)(2) will
continue to be an exclusive means of invalidating foreclosure sales that,
while not intentionally fraudulent, nevertheless fail to comply with all
governing state laws. Pp. 545Â546.
974 F. 2d 1144, affirmed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Souter, J.,
filed a dissenting opinion, in which Blackmun, Stevens, and Ginsburg,
JJ., joined, post, p. 549.
Roy B. Woolsey argued the cause for petitioner. With
him on the briefs was Ronald B. Coulombe.
Ronald J. Mann argued the cause for respondent Resolu-
tion Trust Corporation. With him on the brief were Solici-
tor General Days, Assistant Attorney General Hunger, Jef-
frey P. Minear, Joseph Patchan, Jeffrey Ehrlich, and Janice
Lynn Green.
Michael R. Sment argued the cause and filed a brief for
respondent Osborne et al.*
*Marian C. Nowell, Henry J. Sommer, Gary Klein, Neil Fogarty, and
Philip Shuchman filed a brief for Frank Allen et al. as amici curiae urg-
ing reversal.
Briefs of amici curiae urging affirmance were filed for the American
Council of Life Insurance et al. by Christopher F. Graham, James L. Cun-
ningham, and Richard E. Barnsback; for the California Trustee's Associa-
tion et al. by Phillip M. Adleson, Patric J. Kelly, and Duane W. Shewaga;
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Cite as: 511 U. S. 531 (1994) 533
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
This case presents the question whether the consideration
received from a noncollusive, real estate mortgage foreclo-
sure sale conducted in conformance with applicable state law
conclusively satisfies the Bankruptcy Code's requirement
that transfers of property by insolvent debtors within one
year prior to the filing of a bankruptcy petition be in ex-
change for "a reasonably equivalent value." 11 U. S. C.
§ 548(a)(2).
I
Petitioner BFP is a partnership, formed by Wayne and
Marlene Pedersen and Russell Barton in 1987, for the pur-
pose of buying a home in Newport Beach, California, from
Sheldon and Ann Foreman. Petitioner took title subject to
a first deed of trust in favor of Imperial Savings Association
(Imperial) 1 to secure payment of a loan of $356,250 made to
the Pedersens in connection with petitioner's acquisition of
the home. Petitioner granted a second deed of trust to the
Foremans as security for a $200,000 promissory note. Subse-
quently, Imperial, whose loan was not being serviced, en-
tered a notice of default under the first deed of trust and
scheduled a properly noticed foreclosure sale. The foreclo-
sure proceedings were temporarily delayed by the filing of
an involuntary bankruptcy petition on behalf of petitioner.
After the dismissal of that petition in June 1989, Imperial's
for the Council of State Governments et al. by Richard Ruda; for the
Federal Home Loan Mortgage Corporation et al. by Dean S. Cooper, Roger
M. Whelan, David F. B. Smith, and William E. Cumberland; and for Jim
Walter Homes, Inc., by Lawrence A. G. Johnson.
1 Respondent Resolution Trust Corporation (RTC) acts in this case as
receiver of Imperial Federal Savings Association (Imperial Federal),
which was organized pursuant to a June 22, 1990, order of the Director of
the Office of Thrift Supervision, and into which RTC transferred certain
assets and liabilities of Imperial. The Director previously had appointed
RTC as receiver of Imperial. For convenience we refer to all respondents
other than RTC and Imperial as the private respondents.
511us2$53K 11-03-97 22:06:57 PAGES OPINPGT
534 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
foreclosure proceeding was completed at a foreclosure sale
on July 12, 1989. The home was purchased by respondent
Paul Osborne for $433,000.
In October 1989, petitioner filed for bankruptcy under
Chapter 11 of the Bankruptcy Code, 11 U. S. C. §§ 1101Â1174.
Acting as a debtor in possession, petitioner filed a complaint
in Bankruptcy Court seeking to set aside the conveyance of
the home to respondent Osborne on the grounds that the
foreclosure sale constituted a fraudulent transfer under § 548
of the Code, 11 U. S. C. § 548. Petitioner alleged that the
home was actually worth over $725,000 at the time of the
sale to Osborne. Acting on separate motions, the Bank-
ruptcy Court dismissed the complaint as to the private
respondents and granted summary judgment in favor of
Imperial. The Bankruptcy Court found, inter alia, that the
foreclosure sale had been conducted in compliance with Cali-
fornia law and was neither collusive nor fraudulent. In an
unpublished opinion, the District Court affirmed the Bank-
ruptcy Court's granting of the private respondents' motion
to dismiss. A divided bankruptcy appellate panel affirmed
the Bankruptcy Court's entry of summary judgment for Im-
perial. 132 B. R. 748 (1991). Applying the analysis set
forth in In re Madrid, 21 B. R. 424 (Bkrtcy. App. Pan. CA9
1982), affirmed on other grounds, 725 F. 2d 1197 (CA9), cert.
denied, 469 U. S. 833 (1984), the panel majority held that a
"non-collusive and regularly conducted nonjudicial foreclo-
sure sale . . . cannot be challenged as a fraudulent conveyance
because the consideration received in such a sale establishes
`reasonably equivalent value' as a matter of law." 132 B. R.,
at 750.
Petitioner sought review of both decisions in the Court of
Appeals for the Ninth Circuit, which consolidated the ap-
peals. The Court of Appeals affirmed. In re BFP, 974
F. 2d 1144 (1992). BFP filed a petition for certiorari, which
we granted. 508 U. S. 938 (1993).
511us2$53K 11-03-97 22:06:57 PAGES OPINPGT
Cite as: 511 U. S. 531 (1994) 535
Opinion of the Court
II
Section 548 of the Bankruptcy Code, 11 U. S. C. § 548, sets
forth the powers of a trustee in bankruptcy (or, in a Chapter
11 case, a debtor in possession) to avoid fraudulent trans-
fers.2 It permits to be set aside not only transfers infected
by actual fraud but certain other transfers as well-so-called
constructively fraudulent transfers. The constructive fraud
provision at issue in this case applies to transfers by insol-
vent debtors. It permits avoidance if the trustee can estab-
lish (1) that the debtor had an interest in property; (2) that
a transfer of that interest occurred within one year of the
filing of the bankruptcy petition; (3) that the debtor was in-
solvent at the time of the transfer or became insolvent as a
result thereof; and (4) that the debtor received "less than a
reasonably equivalent value in exchange for such transfer."
11 U. S. C. § 548(a)(2)(A). It is the last of these four ele-
ments that presents the issue in the case before us.
Section 548 applies to any "transfer," which includes "fore-
closure of the debtor's equity of redemption." 11 U. S. C.
§ 101(54) (1988 ed., Supp. IV). Of the three critical terms
"reasonably equivalent value," only the last is defined:
"value" means, for purposes of § 548, "property, or satisfac-
tion or securing of a . . . debt of the debtor," 11 U. S. C.
2 Title 11 U. S. C. § 548 provides in relevant part:
"(a) The trustee may avoid any transfer of an interest of the debtor in
property, or any obligation incurred by the debtor, that was made or in-
curred on or within one year before the date of the filing of the petition,
if the debtor voluntarily or involuntarily-
"(1) made such transfer or incurred such obligation with actual intent
to hinder, delay, or defraud any entity to which the debtor was or became,
on or after the date that such transfer was made or such obligation was
incurred, indebted; or
"(2)(A) received less than a reasonably equivalent value in exchange for
such transfer or obligation; and
"(B)(i) was insolvent on the date that such transfer was made or such
obligation was incurred, or became insolvent as a result of such transfer
or obligation . . . ."
511us2$53K 11-03-97 22:06:57 PAGES OPINPGT
536 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
§ 548(d)(2)(A). The question presented here, therefore, is
whether the amount of debt (to the first and second lienhold-
ers) satisfied at the foreclosure sale (viz., a total of $433,000)
is "reasonably equivalent" to the worth of the real estate
conveyed. The Courts of Appeals have divided on the
meaning of those undefined terms. In Durrett v. Washing-
ton Nat. Ins. Co., 621 F. 2d 201 (1980), the Fifth Circuit,
interpreting a provision of the old Bankruptcy Act analogous
to § 548(a)(2), held that a foreclosure sale that yielded 57% of
the property's fair market value could be set aside, and indi-
cated in dicta that any such sale for less than 70% of fair
market value should be invalidated. Id., at 203Â204. This
"Durrett rule" has continued to be applied by some courts
under § 548 of the new Bankruptcy Code. See In re Little-
ton, 888 F. 2d 90, 92, n. 5 (CA11 1989). In In re Bundles,
856 F. 2d 815, 820 (1988), the Seventh Circuit rejected the
Durrett rule in favor of a case-by-case, "all facts and circum-
stances" approach to the question of reasonably equivalent
value, with a rebuttable presumption that the foreclosure
sale price is sufficient to withstand attack under § 548(a)(2).
856 F. 2d, at 824Â825; see also In re Grissom, 955 F. 2d 1440,
1445Â1446 (CA11 1992). In this case the Ninth Circuit,
agreeing with the Sixth Circuit, see In re Winshall Settler's
Trust, 758 F. 2d 1136, 1139 (CA6 1985), adopted the position
first put forward in In re Madrid, 21 B. R. 424 (Bkrtcy. App.
Pan. CA9 1982), affirmed on other grounds, 725 F. 2d 1197
(CA9), cert. denied, 469 U. S. 833 (1984), that the consider-
ation received at a noncollusive, regularly conducted real es-
tate foreclosure sale constitutes a reasonably equivalent
value under § 548(a)(2)(A). The Court of Appeals acknowl-
edged that it "necessarily part[ed] from the positions taken
by the Fifth Circuit in Durrett . . . and the Seventh Circuit
in Bundles." 974 F. 2d, at 1148.
In contrast to the approach adopted by the Ninth Circuit
in the present case, both Durrett and Bundles refer to fair
market value as the benchmark against which determination
511us2$53K 11-03-97 22:06:57 PAGES OPINPGT
Cite as: 511 U. S. 531 (1994) 537
Opinion of the Court
of reasonably equivalent value is to be measured. In the
context of an otherwise lawful mortgage foreclosure sale of
real estate,3 such reference is in our opinion not consistent
with the text of the Bankruptcy Code. The term "fair mar-
ket value," though it is a well-established concept, does not
appear in § 548. In contrast, § 522, dealing with a debtor's
exemptions, specifically provides that, for purposes of that
section, " `value' means fair market value as of the date of
the filing of the petition." 11 U. S. C. § 522(a)(2). "Fair
market value" also appears in the Code provision that de-
fines the extent to which indebtedness with respect to an
equity security is not forgiven for the purpose of determin-
ing whether the debtor's estate has realized taxable income.
§ 346(j)(7)(B). Section 548, on the other hand, seemingly
goes out of its way to avoid that standard term. It might
readily have said "received less than fair market value in
exchange for such transfer or obligation," or perhaps "less
than a reasonable equivalent of fair market value." Instead,
it used the (as far as we are aware) entirely novel phrase
"reasonably equivalent value." "[I]t is generally presumed
that Congress acts intentionally and purposely when it
includes particular language in one section of a statute
but omits it in another," Chicago v. Environmental Defense
Fund, ante, at 338 (internal quotation marks omitted),
and that presumption is even stronger when the omission
entails the replacement of standard legal terminology with a
neologism. One must suspect the language means that fair
market value cannot-or at least cannot always-be the
benchmark.
That suspicion becomes a certitude when one considers
that market value, as it is commonly understood, has no ap-
plicability in the forced-sale context; indeed, it is the very
antithesis of forced-sale value. "The market value of . . . a
3 We emphasize that our opinion today covers only mortgage foreclo-
sures of real estate. The considerations bearing upon other foreclosures
and forced sales (to satisfy tax liens, for example) may be different.
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538 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
piece of property is the price which it might be expected to
bring if offered for sale in a fair market; not the price which
might be obtained on a sale at public auction or a sale forced
by the necessities of the owner, but such a price as would be
fixed by negotiation and mutual agreement, after ample time
to find a purchaser, as between a vendor who is willing (but
not compelled) to sell and a purchaser who desires to buy but
is not compelled to take the particular . . . piece of property."
Black's Law Dictionary 971 (6th ed. 1990). In short, "fair
market value" presumes market conditions that, by defini-
tion, simply do not obtain in the context of a forced sale.
See, e. g., East Bay Municipal Utility District v. Kieffer, 99
Cal. App. 240, 255, 278 P. 476, 482 (1929), overruled on other
grounds by County of San Diego v. Miller, 13 Cal. 3d 684,
532 P. 2d 139 (1975) (in bank); Nevada Nat. Leasing Co. v.
Hereford, 36 Cal. 3d 146, 152, 680 P. 2d 1077, 1080 (1984) (in
bank); Guardian Loan Co. v. Early, 47 N. Y. 2d 515, 521, 392
N. E. 2d 1240, 1244 (1979).
Neither petitioner, petitioner's amici, nor any federal
court adopting the Durrett or the Bundles analysis has come
to grips with this glaring discrepancy between the factors
relevant to an appraisal of a property's market value, on
the one hand, and the strictures of the foreclosure process
on the other. Market value cannot be the criterion of equiv-
alence in the foreclosure-sale context.4 The language of
§ 548(a)(2)(A) ("received less than a reasonably equivalent
4 Our discussion assumes that the phrase "reasonably equivalent" means
"approximately equivalent," or "roughly equivalent." One could, we sup-
pose, torture it into meaning "as close to equivalent as can reasonably be
expected"-in which event even a vast divergence from equivalent value
would be permissible so long as there is good reason for it. On such an
analysis, fair market value could be the criterion of equivalence, even in
a forced-sale context; the forced sale would be the reason why gross in-
equivalence is nonetheless reasonable equivalence. Such word-gaming
would deprive the criterion of all meaning. If "reasonably equivalent
value" means only "as close to equivalent value as is reasonable," the stat-
ute might as well have said "reasonably infinite value."
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Opinion of the Court
value in exchange") requires judicial inquiry into whether
the foreclosed property was sold for a price that approxi-
mated its worth at the time of sale. An appraiser's recon-
struction of "fair market value" could show what similar
property would be worth if it did not have to be sold within
the time and manner strictures of state-prescribed foreclo-
sure. But property that must be sold within those stric-
tures is simply worth less. No one would pay as much to
own such property as he would pay to own real estate that
could be sold at leisure and pursuant to normal marketing
techniques. And it is no more realistic to ignore that char-
acteristic of the property (the fact that state foreclosure law
permits the mortgagee to sell it at forced sale) than it is to
ignore other price-affecting characteristics (such as the fact
that state zoning law permits the owner of the neighboring
lot to open a gas station).5 Absent a clear statutory require-
ment to the contrary, we must assume the validity of this
state-law regulatory background and take due account of its
effect. "The existence and force and function of established
5 We are baffled by the dissent's perception of a "patent" difference be-
tween zoning and foreclosure laws insofar as impact upon property value
is concerned, post, at 557Â558, n. 10. The only distinction we perceive is
that the former constitute permanent restrictions upon use of the subject
property, while the latter apply for a brief period of time and restrict only
the manner of its sale. This difference says nothing about how signifi-
cantly the respective regimes affect the property's value when they are
operative. The dissent characterizes foreclosure rules as "merely proce-
dural," and asserts that this renders them, unlike "substantive" zoning
regulations, irrelevant in bankruptcy. We are not sure we agree with the
characterization. But in any event, the cases relied on for this distinction
all address creditors' attempts to claim the benefit of state rules of law
(whether procedural or substantive) as property rights, in a bankruptcy
proceeding. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest
Associates, Ltd., 484 U. S. 365, 370Â371 (1988); Owen v. Owen, 500 U. S.
305, 313 (1991); United States v. Whiting Pools, Inc., 462 U. S. 198, 206Â
207, and nn. 14, 15 (1983). None of them declares or even intimates that
state laws, procedural or otherwise, are irrelevant to prebankruptcy valu-
ation questions such as that presented by § 548(a)(2)(A).
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540 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
institutions of local government are always in the conscious-
ness of lawmakers and, while their weight may vary, they
may never be completely overlooked in the task of interpre-
tation." Davies Warehouse Co. v. Bowles, 321 U. S. 144, 154
(1944). Cf. Gregory v. Ashcroft, 501 U. S. 452, 460Â462
(1991).
There is another artificially constructed criterion we
might look to instead of "fair market price." One might
judge there to be such a thing as a "reasonable" or "fair"
forced-sale price. Such a conviction must lie behind the
Bundles inquiry into whether the state foreclosure proceed-
ings "were calculated . . . to return to the debtor-mortgagor
his equity in the property." 856 F. 2d, at 824. And perhaps
that is what the courts that follow the Durrett rule have in
mind when they select 70% of fair market value as the outer
limit of "reasonably equivalent value" for forecloseable prop-
erty (we have no idea where else such an arbitrary percent-
age could have come from). The problem is that such judg-
ments represent policy determinations that the Bankruptcy
Code gives us no apparent authority to make. How closely
the price received in a forced sale is likely to approximate
fair market value depends upon the terms of the forced
sale-how quickly it may be made, what sort of public notice
must be given, etc. But the terms for foreclosure sale are
not standard. They vary considerably from State to State,
depending upon, among other things, how the particular
State values the divergent interests of debtor and creditor.
To specify a federal "reasonable" foreclosure-sale price is to
extend federal bankruptcy law well beyond the traditional
field of fraudulent transfers, into realms of policy where it
has not ventured before. Some sense of history is needed
to appreciate this.
The modern law of fraudulent transfers had its origin in
the Statute of 13 Elizabeth, which invalidated "covinous and
fraudulent" transfers designed "to delay, hinder or defraud
creditors and others." 13 Eliz., ch. 5 (1570). English courts
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Opinion of the Court
soon developed the doctrine of "badges of fraud": proof by a
creditor of certain objective facts (for example, a transfer to
a close relative, a secret transfer, a transfer of title without
transfer of possession, or grossly inadequate consideration)
would raise a rebuttable presumption of actual fraudulent
intent. See Twyne's Case, 3 Coke Rep. 80b, 76 Eng. Rep.
809 (K. B. 1601); O. Bump, Fraudulent Conveyances: A Trea-
tise upon Conveyances Made by Debtors to Defraud Credi-
tors 31Â60 (3d ed. 1882). Every American bankruptcy law
has incorporated a fraudulent transfer provision; the 1898
Act specifically adopted the language of the Statute of 13
Elizabeth. Bankruptcy Act of July 1, 1898, ch. 541, § 67(e),
30 Stat. 564Â565.
The history of foreclosure law also begins in England,
where courts of chancery developed the "equity of redemp-
tion"-the equitable right of a borrower to buy back, or re-
deem, property conveyed as security by paying the secured
debt on a later date than "law day," the original due date.
The courts' continued expansion of the period of redemption
left lenders in a quandary, since title to forfeited property
could remain clouded for years after law day. To meet this
problem, courts created the equitable remedy of foreclosure:
after a certain date the borrower would be forever foreclosed
from exercising his equity of redemption. This remedy was
called strict foreclosure because the borrower's entire inter-
est in the property was forfeited, regardless of any accumu-
lated equity. See G. Glenn, 1 Mortgages 3Â18, 358Â362, 395Â
406 (1943); G. Osborne, Mortgages 144 (2d ed. 1970). The
next major change took place in 19th-century America, with
the development of foreclosure by sale (with the surplus over
the debt refunded to the debtor) as a means of avoiding the
draconian consequences of strict foreclosure. Id., at 661Â
663; Glenn, supra, at 460Â462, 622. Since then, the States
have created diverse networks of judicially and legislatively
crafted rules governing the foreclosure process, to achieve
what each of them considers the proper balance between the
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542 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
needs of lenders and borrowers. All States permit judicial
foreclosure, conducted under direct judicial oversight; about
half of the States also permit foreclosure by exercising a pri-
vate power of sale provided in the mortgage documents.
See Zinman, Houle, & Weiss, Fraudulent Transfers Accord-
ing to Alden, Gross and Borowitz: A Tale of Two Circuits, 39
Bus. Law. 977, 1004Â1005 (1984). Foreclosure laws typically
require notice to the defaulting borrower, a substantial lead
time before the commencement of foreclosure proceedings,
publication of a notice of sale, and strict adherence to pre-
scribed bidding rules and auction procedures. Many States
require that the auction be conducted by a government offi-
cial, and some forbid the property to be sold for less than a
specified fraction of a mandatory presale fair-market-value
appraisal. See id., at 1002, 1004Â1005; Osborne, supra, at
683, 733Â735; G. Osborne, G. Nelson, & D. Whitman, Real
Estate Finance Law 9, 446Â447, 475Â477 (1979). When
these procedures have been followed, however, it is "black
letter" law that mere inadequacy of the foreclosure sale price
is no basis for setting the sale aside, though it may be set
aside (under state foreclosure law, rather than fraudulent
transfer law) if the price is so low as to "shock the conscience
or raise a presumption of fraud or unfairness." Osborne,
Nelson, & Whitman, supra, at 469; see also Gelfert v. Na-
tional City Bank of N. Y., 313 U. S. 221, 232 (1941); Ballen-
tyne v. Smith, 205 U. S. 285, 290 (1907).
Fraudulent transfer law and foreclosure law enjoyed over
400 years of peaceful coexistence in Anglo-American juris-
prudence until the Fifth Circuit's unprecedented 1980 deci-
sion in Durrett. To our knowledge no prior decision had
ever applied the "grossly inadequate price" badge of fraud
under fraudulent transfer law to set aside a foreclosure sale.6
To say that the "reasonably equivalent value" language in
6 The only case cited by Durrett in support of its extension of fraudulent
transfer doctrine, Schafer v. Hammond, 456 F. 2d 15 (CA10 1972), involved
a direct sale, not a foreclosure.
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Opinion of the Court
the fraudulent transfer provision of the Bankruptcy Code
requires a foreclosure sale to yield a certain minimum price
beyond what state foreclosure law requires, is to say, in es-
sence, that the Code has adopted Durrett or Bundles.
Surely Congress has the power pursuant to its constitutional
grant of authority over bankruptcy, U. S. Const., Art. I, § 8,
cl. 4, to disrupt the ancient harmony that foreclosure law and
fraudulent conveyance law, those two pillars of debtor-
creditor jurisprudence, have heretofore enjoyed. But ab-
sent clearer textual guidance than the phrase "reasonably
equivalent value"-a phrase entirely compatible with pre-
existing practice-we will not presume such a radical depar-
ture. See United Sav. Assn. of Tex. v. Timbers of Inwood
Forest Associates, Ltd., 484 U. S. 365, 380 (1988); Midlantic
Nat. Bank v. New Jersey Dept. of Environmental Protec-
tion, 474 U. S. 494, 501 (1986); cf. United States v. Texas, 507
U. S. 529, 534 (1993) (statutes that invade common law must
be read with presumption favoring retention of long-
established principles absent evident statutory purpose to
the contrary).7
7 We are unpersuaded by petitioner's argument that the 1984 amend-
ments to the Bankruptcy Code codified the Durrett rule. Those amend-
ments expanded the definition of "transfer" to include "foreclosure of the
debtor's equity of redemption," 11 U. S. C. § 101(54) (1988 ed., Supp. IV),
and added the words "voluntarily or involuntarily" as modifiers of the
term "transfer" in § 548(a). The first of these provisions establishes that
foreclosure sales fall within the general definition of "transfers" that may
be avoided under several statutory provisions, including (but not limited
to) § 548. See § 522(h) (transfers of exempt property), § 544 (transfers
voidable under state law), § 547 (preferential transfers), § 549 (postpetition
transfers). The second of them establishes that a transfer may be avoided
as fraudulent even if it was against the debtor's will. See In re Madrid,
725 F. 2d 1197, 1199 (CA9 1984) (preamendment decision holding that a
foreclosure sale is not a "transfer" under § 548). Neither of these conse-
quences has any bearing upon the meaning of "reasonably equivalent
value" in the context of a foreclosure sale.
Nor does our reading render these amendments "superfluous," as the
dissent contends, post, at 555. Prior to 1984, it was at least open to ques-
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544 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
Federal statutes impinging upon important state interests
"cannot . . . be construed without regard to the implications
of our dual system of government. . . . [W]hen the Federal
Government takes over . . . local radiations in the vast net-
work of our national economic enterprise and thereby radi-
cally readjusts the balance of state and national authority,
those charged with the duty of legislating [must be] reason-
ably explicit." Frankfurter, Some Reflections on the Read-
ing of Statutes, 47 Colum. L. Rev. 527, 539Â540 (1947), quoted
in Kelly v. Robinson, 479 U. S. 36, 49Â50, n. 11 (1986). It is
beyond question that an essential state interest is at issue
here: We have said that "the general welfare of society is
involved in the security of the titles to real estate" and the
power to ensure that security "inheres in the very nature of
[state] government." American Land Co. v. Zeiss, 219 U. S.
47, 60 (1911). Nor is there any doubt that the interpretation
urged by petitioner would have a profound effect upon that
interest: The title of every piece of realty purchased at fore-
closure would be under a federally created cloud. (Already,
title insurers have reacted to the Durrett rule by including
specially crafted exceptions from coverage in many policies
issued for properties purchased at foreclosure sales. See,
e. g., L. Cherkis & L. King, Collier Real Estate Transactions
and the Bankruptcy Code, pp. 5Â18 to 5Â19 (1992).) To dis-
place traditional state regulation in such a manner, the fed-
eral statutory purpose must be "clear and manifest," English
v. General Elec. Co., 496 U. S. 72, 79 (1990). Cf. Gregory v.
Ashcroft, 501 U. S., at 460Â461.8 Otherwise, the Bankruptcy
tion whether § 548 could be used to invalidate even a collusive foreclosure
sale, see Madrid, supra, at 1204 (Farris, J., concurring). It is no super-
fluity for Congress to clarify what had been at best unclear, which is what
it did here by making the provision apply to involuntary as well as volun-
tary transfers and by including foreclosures within the definition of "trans-
fer." See infra, at 545Â546.
8 The dissent criticizes our partial reliance on Gregory because the
States' authority to "defin[e] and adjus[t] the relations between debtors
and creditors . . . [cannot] fairly be called essential to their indepen-
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Cite as: 511 U. S. 531 (1994) 545
Opinion of the Court
Code will be construed to adopt, rather than to displace,
pre-existing state law. See Kelly, supra, at 49; Butner v.
United States, 440 U. S. 48, 54Â55 (1979); Vanston Bondhold-
ers Protective Comm. v. Green, 329 U. S. 156, 171 (1946)
(Frankfurter, J., concurring).
For the reasons described, we decline to read the phrase
"reasonably equivalent value" in § 548(a)(2) to mean, in its
application to mortgage foreclosure sales, either "fair market
value" or "fair foreclosure price" (whether calculated as a
percentage of fair market value or otherwise). We deem, as
the law has always deemed, that a fair and proper price, or
a "reasonably equivalent value," for foreclosed property, is
the price in fact received at the foreclosure sale, so long as
all the requirements of the State's foreclosure law have been
complied with.
This conclusion does not render § 548(a)(2) superfluous,
since the "reasonably equivalent value" criterion will con-
tinue to have independent meaning (ordinarily a meaning
similar to fair market value) outside the foreclosure context.
Indeed, § 548(a)(2) will even continue to be an exclusive
means of invalidating some foreclosure sales. Although col-
lusive foreclosure sales are likely subject to attack under
§ 548(a)(1), which authorizes the trustee to avoid transfers
"made . . . with actual intent to hinder, delay, or defraud"
creditors, that provision may not reach foreclosure sales that,
while not intentionally fraudulent, nevertheless fail to com-
ply with all governing state laws. Cf. 4 L. King, Collier on
Bankruptcy ¶ 548.02, p. 548Â35 (15th ed. 1993) (contrasting
subsections (a)(1) and (a)(2)(A) of § 548). Any irregularity
in the conduct of the sale that would permit judicial invalida-
tion of the sale under applicable state law deprives the sale
dence." Post, at 565, n. 17 (internal quotation marks omitted). This ig-
nores the fact that it is not state authority over debtor-creditor law in
general that is at stake in this case, but the essential sovereign interest
in the security and stability of title to land. See American Land Co. v.
Zeiss, 219 U. S. 47, 60 (1911).
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546 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
price of its conclusive force under § 548(a)(2)(A), and the
transfer may be avoided if the price received was not reason-
ably equivalent to the property's actual value at the time of
the sale (which we think would be the price that would have
been received if the foreclosure sale had proceeded according
to law).
III
A few words may be added in general response to the dis-
sent. We have no quarrel with the dissent's assertion that
where the "meaning of the Bankruptcy Code's text is itself
clear," post, at 566, its operation is unimpeded by contrary
state law or prior practice. Nor do we contend that Con-
gress must override historical state practice "expressly or
not at all." Post, at 565. The Bankruptcy Code can of
course override by implication when the implication is unam-
biguous. But where the intent to override is doubtful, our
federal system demands deference to long-established tradi-
tions of state regulation.
The dissent's insistence that here no doubt exists-that
our reading of the statute is "in derogation of the straight-
forward language used by Congress," post, at 549 (emphasis
added)-does not withstand scrutiny. The problem is not
that we disagree with the dissent's proffered "plain mean-
ing" of § 548(a)(2)(A) ("[T]he bankruptcy court must compare
the price received by the insolvent debtor and the worth of
the item when sold and set aside the transfer if the former
was substantially (`[un]reasonabl[y]') `less than' the latter,"
post, at 552)-which indeed echoes our own framing of the
question presented ("whether the amount of debt . . . satis-
fied at the foreclosure sale . . . is `reasonably equivalent' to
the worth of the real estate conveyed," supra, at 536).
There is no doubt that this provision directs an inquiry into
the relationship of the value received by the debtor to the
worth of the property transferred. The problem, however,
as any "ordinary speaker of English would have no difficulty
grasping," post, at 552, is that this highly generalized re-
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Opinion of the Court
formulation of the "plain meaning" of "reasonably equivalent
value" continues to leave unanswered the one question cen-
tral to this case, wherein the ambiguity lies: What is a fore-
closed property worth? Obviously, until that is determined,
we cannot know whether the value received in exchange for
foreclosed property is "reasonably equivalent." We have
considered three (not, as the dissent insists, only two, see
post, at 549) possible answers to this question-fair market
value, supra, at 536Â540, reasonable forced-sale price, supra,
at 540, and the foreclosure-sale price itself-and have settled
on the last. We would have expected the dissent to opt for
one of the other two, or perhaps even to concoct a fourth;
but one searches Justice Souter's opinion in vain for
any alternative response to the question of the transferred
property's worth. Instead, the dissent simply reiterates
the "single meaning" of "reasonably equivalent value" (with
which we entirely agree): "[A] court should discern the
`value' of the property transferred and determine whether
the price paid was, under the circumstances, `less than rea-
sonabl[e].' " Post, at 559. Well and good. But what is the
"value"? The dissent has no response, evidently thinking
that, in order to establish that the law is clear, it suffices to
show that "the eminent sense of the natural reading," post,
at 565, provides an unanswered question.
Instead of answering the question, the dissent gives us
hope that someone else will answer it, exhorting us "to be-
lieve that [bankruptcy courts], familiar with these cases (and
with local conditions) as we are not, will give ["reasonably
equivalent value"] sensible content in evaluating particular
transfers on foreclosure." Post, at 560. While we share
the dissent's confidence in the capabilities of the United
States Bankruptcy Courts, it is the proper function of this
Court to give "sensible content" to the provisions of the
United States Code. It is surely the case that bankruptcy
"courts regularly make . . . determinations about the `reason-
ably equivalent value' of assets transferred through other
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548 BFP v. RESOLUTION TRUST CORPORATION
Opinion of the Court
means than foreclosure sales." Post, at 560. But in the
vast majority of those cases, they can refer to the traditional
common-law notion of fair market value as the benchmark.
As we have demonstrated, this generally useful concept
simply has no application in the foreclosure-sale context,
supra, at 536Â540.
Although the dissent's conception of what constitutes a
property's "value" is unclear, it does seem to take account of
the fact that the property is subject to forced sale. The dis-
sent refers, for example, to a reasonable price "under the
circumstances," post, at 559, and to the "worth of the item
when sold," post, at 552 (emphasis added). But just as we
are never told how the broader question of a property's
"worth" is to be answered, neither are we informed how the
lesser included inquiry into the impact of forced sale is to be
conducted. Once again, we are called upon to have faith
that bankruptcy courts will be able to determine whether a
property's foreclosure-sale price falls unreasonably short of
its "optimal value," post, at 559, whatever that may be.
This, the dissent tells us, is the statute's plain meaning.
We take issue with the dissent's characterization of our
interpretation as carving out an "exception" for foreclosure
sales, post, at 549, or as giving "two different and inconsist-
ent meanings," post, at 557, to "reasonably equivalent value."
As we have emphasized, the inquiry under § 548(a)(2)(A)-
whether the debtor has received value that is substantially
comparable to the worth of the transferred property-is the
same for all transfers. But as we have also explained, the
fact that a piece of property is legally subject to forced sale,
like any other fact bearing upon the property's use or alien-
ability, necessarily affects its worth. Unlike most other
legal restrictions, however, foreclosure has the effect of com-
pletely redefining the market in which the property is of-
fered for sale; normal free-market rules of exchange are re-
placed by the far more restrictive rules governing forced
sales. Given this altered reality, and the concomitant inutil-
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Cite as: 511 U. S. 531 (1994) 549
Souter, J., dissenting
ity of the normal tool for determining what property is worth
(fair market value), the only legitimate evidence of the prop-
erty's value at the time it is sold is the foreclosure-sale
price itself.
* * *
For the foregoing reasons, the judgment of the Court of
Appeals for the Ninth Circuit is
Affirmed.
Justice Souter, with whom Justice Blackmun, Jus-
tice Stevens, and Justice Ginsburg join, dissenting.
The Court today holds that by the terms of the Bank-
ruptcy Code Congress intended a peppercorn paid at a non-
collusive and procedurally regular foreclosure sale to be
treated as the "reasonabl[e] equivalent" of the value of a Cal-
ifornia beachfront estate. Because the Court's reasoning
fails both to overcome the implausibility of that proposition
and to justify engrafting a foreclosure-sale exception onto 11
U. S. C. § 548(a)(2)(A), in derogation of the straightforward
language used by Congress, I respectfully dissent.
I
A
The majority presents our task of giving meaning to
§ 548(a)(2)(A) in this case as essentially entailing a choice
between two provisions that Congress might have enacted,
but did not. One would allow a bankruptcy trustee to avoid
a recent foreclosure-sale transfer from an insolvent debtor
whenever anything less than fair market value was obtained,
while the second would limit the avoidance power to cases
where the foreclosure sale was collusive or had failed
to comply with state-prescribed procedures. The Court
then argues that, given the unexceptionable proposition
that forced sales rarely yield as high a price as sales held
under ideal, "market" conditions, Congress's "omission" from
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550 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
§ 548(a)(2)(A) of the phrase "fair market value" means that
the latter, narrowly procedural reading of § 548(a)(2)(A) is
the preferable one.
If those in fact were the interpretive alternatives, the ma-
jority's choice might be a defensible one.1 The first, equat-
ing "reasonably equivalent value" at a foreclosure sale with
"fair market value" has little to recommend it. Forced-sale
prices may not be (as the majority calls them) the "very an-
tithesis" of market value, see ante, at 537, but they fail to
bring in what voluntary sales realize, and rejecting such a
1 I note, however, two preliminary embarrassments: first, the gloss on
§ 548(a)(2)(A) the Court embraces is less than entirely hypothetical. In
the course of amending the Bankruptcy Code in 1984, see infra, at 554,
Congress considered, but did not enact, an amendment that said precisely
what the majority now says the current provision means, i. e., that the
avoidance power is confined to foreclosures involving collusion or proce-
dural irregularity. See S. 445, 98th Cong., 1st Sess., § 360 (1983). Even
if one is careful not to attach too much significance to such a legislative
nonoccurrence, it surely cautions against undue reliance on a different, en-
tirely speculative congressional "omission." See ante, at 537 (the statute
"seemingly goes out of its way to avoid" using "fair market value"); but cf.
ante, at 545 (reasonably equivalent value will "continue" to have a meaning
"similar to fair market value" outside the foreclosure-sale context).
In this case, such caution would be rewarded. While the assertedly
"standard," ante, at 537, phrase "fair market value" appears in more than
150 distinct provisions of the Tax Code, it figures in only two Bankruptcy
Code provisions, one of which is entitled, suggestively, "Special tax provi-
sions." See 11 U. S. C. § 346. The term of choice in the bankruptcy set-
ting seems to be "value," unadorned and undefined, which appears in more
than 30 sections of the Bankruptcy Code, but which is, with respect to
many of them, read to mean "fair market value." See also § 549(c) ("pres-
ent fair equivalent value"); § 506(a) ("value [is to] be determined in light
of the purpose of the valuation and of the proposed disposition or use of
such property"); S. Rep. No. 95Â989, p. 54 (1978) ("[M]atters [of valuation
under § 361] are left to case-by-case interpretation and development. . . .
Value [does not] mean, in every case, forced sale liquidation value or full
going concern value. There is wide latitude between those two
extremes . . ."). To the extent, therefore, that this negative implication
supplies ground to "suspect," see ante, at 537, that Congress could not
have meant what the statute says, such suspicion is misplaced.
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Souter, J., dissenting
reading of the statute is as easy as statutory interpretation
is likely to get. On the majority's view, laying waste to this
straw man necessitates accepting as adequate value what-
ever results from noncollusive adherence to state foreclosure
requirements. Because properties are "simply worth less,"
ante, at 539, on foreclosure sale, the Court posits, they must
have been "worth" whatever price was paid. That, how-
ever, is neither a plausible interpretation of the statute, nor
its only remaining alternative reading.2
2 The majority's statutory argument depends similarly heavily on the
success of its effort to relegate "fair market value" to complete pariah
status. But it is no short leap from the (entirely correct) observation that
a property's fair market value will not be dispositive of whether "less than
a reasonably equivalent value" was obtained on foreclosure to the asser-
tion that market value has "no applicability," ante, at 537, or is not "legiti-
mate evidence," ante, at 549 (emphasis added), of whether the statutory
standard was met. As is explored more fully infra, the assessed value of
a parcel of real estate at the time of foreclosure sale is not to be ignored.
On the contrary, that figure plainly is relevant to the Bankruptcy Code
determination, both because it provides a proper measure of the rights
received by the transferee and because it is indicative of the extent of the
debtor's equity in the property, an asset which, but for the prebankruptcy
transfer under review, would have been available to the bankruptcy es-
tate, see infra, at 562Â565.
It is also somewhat misleading, similarly, to suggest that "[n]o one would
pay as much," ante, at 539, for a foreclosed property as he would for the
same real estate purchased under leisurely, market conditions. Buyers
no doubt hope for bargains at foreclosure sales, but an investor with a
million dollars cash in his pocket might be ready to pay "as much" for a
desired parcel of property on forced sale, at least if a rival, equally deter-
mined millionaire were to appear at the same auction. The principal rea-
son such sales yield low prices is not so much that the properties become
momentarily "worth less," ibid. (on the contrary, foreclosure-sale purchas-
ers receive a bundle of rights essentially similar to what they get when
they buy on the market) or that foreclosing mortgagees are under the
compulsion of state law to make no more than the most desultory efforts
to encourage higher bidding, but rather that such free-spending million-
aires are in short supply, and those who do exist are unlikely to read the
fine print which fills the "legal notice" columns of their morning newspa-
per. Nor, similarly, is market value justly known as the "antithesis" of
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552 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
The question before the Court is whether the price re-
ceived at a foreclosure sale after compliance with state pro-
cedural rules in a noncollusive sale must be treated conclu-
sively as the "reasonably equivalent value" of the mortaged
property and in answering that question, the words and
meaning of § 548(a)(2)(A) are plain. See Patterson v. Shu-
mate, 504 U. S. 753, 760 (1992) (party seeking to defeat plain
meaning of Bankruptcy Code text bears an "exceptionally
heavy burden") (internal quotation marks omitted); Perrin
v. United States, 444 U. S. 37, 42 (1979) (statutory words
should be given their ordinary meaning). A trustee is au-
thorized to avoid certain recent prebankruptcy transfers,
including those on foreclosure sales, that a bankruptcy court
determines were not made in exchange for "a reasonably
equivalent value." Although this formulation makes no pre-
tense to mathematical precision, an ordinary speaker of Eng-
lish would have no difficulty grasping its basic thrust: the
bankruptcy court must compare the price received by the
insolvent debtor and the worth of the item when sold and
set aside the transfer if the former was substantially ("[un]-
reasonabl[y]") "less than" the latter.3 Nor would any ordi-
nary English speaker, concerned to determine whether a
foreclosure sale was collusive or procedurally irregular (an
enquiry going exclusively to the process by which a transac-
tion was consummated), direct an adjudicator, as the Court
now holds Congress did, to ascertain whether the sale had
realized "less than a reasonably equivalent value" (an en-
quiry described in quintessentially substantive terms).4
foreclosure-sale price, for the important (if intuitive) reason that prop-
erties with higher market values can be expected to sell for more on
foreclosure.
3 Indeed, it is striking that this is what the Court says the statute (prob-
ably) does mean, with respect to almost every transfer other than a sale
of property upon foreclosure. See ante, at 545.
4 The Court protests, ante, at 546, that its formulation, see ante, at 536,
deviates only subtly from the reading advanced here and purports not to
disagree that the statute compels an enquiry "into the relationship of the
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Souter, J., dissenting
Closer familiarity with the text, structure, and history of
the disputed provision (and relevant amendments) confirms
the soundness of the plain reading. Before 1984, the ques-
tion whether foreclosure sales fell within bankruptcy courts'
power to set aside transfers for "too little in return" was,
potentially, a difficult one. Then, it might plausibly have
been contended that § 548 was most concerned with "fraudu-
lent" conduct by debtors on the brink of bankruptcy, misbe-
havior unlikely to be afoot when an insolvent debtor's prop-
erty is sold, against his wishes, at foreclosure.5 Indeed, it
could further have been argued, again consonantly with the
text of the earlier version of the Bankruptcy Code, that Con-
gress had not understood foreclosure to involve a "transfer"
within the ambit of § 548, see, e. g., Abramson v. Lakewood
Bank & Trust Co., 647 F. 2d 547, 549 (CA5 1981) (Clark, J.,
value received and the worth of the property transferred," ante, at 546.
Reassuring as such carefully chosen words may sound, they cannot ob-
scure the fact that the "comparison" the majority envisions is an empty
ritual. See n. 10, infra.
5 The Court notes correctly that fraudulent conveyance laws were di-
rected first against insolvent debtors' passing assets to friends or rela-
tives, in order to keep them beyond their creditors' reach (the proverbial
"Elizabethan deadbeat who sells his sheep to his brother for a pittance,"
see Baird & Jackson, Fraudulent Conveyance Law and Its Proper Domain,
38 Vand. L. Rev. 829, 852 (1985)), and then later against conduct said to
carry the "badges" of such misconduct, but bankruptcy law had, well be-
fore 1984, turned decisively away from the notion that the debtor's state
of mind, and not the objective effects on creditors, should determine the
scope of the avoidance power. Thus, the 1938 Chandler Act, Bankruptcy
Revision, provided that a transfer could be set aside without proving any
intent to "hinder, delay, or defraud," provided that the insolvent debtor
obtained less than "fair consideration" in return, see 11 U. S. C. § 107(d)(2)
(1976), and the 1978 Bankruptcy Code eliminated scrutiny of the transact-
ing parties' "good faith." Cf. 11 U. S. C. § 107(d)(1)(e) (1976). At the time
when bankruptcy law was more narrowly concerned with debtors' turpi-
tude, moreover, the available "remedies" were strikingly different, as well.
See, e. g., 21 Jac. I., ch. 19, § 6 (1623), 4 Statutes of the Realm 1228 (insol-
vent debtor who fraudulently conceals assets is subject to have his ear
nailed to pillory and cut off).
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554 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
dissenting) (Bankruptcy Act case), cert. denied, 454 U. S.
1164 (1982), on the theory that the "transfer" from mort-
gagor to mortgagee occurs, once and for all, when the secu-
rity interest is first created. See generally In re Madrid,
725 F. 2d 1197 (CA9), cert. denied, 469 U. S. 833 (1984).
In 1984, however, Congress pulled the rug out from under
these previously serious arguments, by amending the Code
in two relevant respects. See Bankruptcy Amendments and
Federal Judgeship Act of 1984, §§ 401(1), 463(a), 98 Stat. 366,
378. One amendment provided expressly that "involun-
tar[y]" transfers are no less within the trustee's § 548 avoid-
ance powers than "voluntar[y]" ones, and another provided
that the "foreclosure of the debtor's equity of redemption"
itself is a "transfer" for purposes of bankruptcy law. See 11
U. S. C. § 101(54) (1988 ed., Supp. IV).6 Thus, whether or not
one believes (as the majority seemingly does not) that fore-
closure sales rightfully belong within the historic domain of
"fraudulent conveyance" law, that is exactly where Congress
has now put them, cf. In re Ehring, 900 F. 2d 184, 187 (CA9
1990), and our duty is to give effect to these new amend-
ments, along with every other clause of the Bankruptcy
Code. See, e. g., United States v. Nordic Village, Inc., 503
U. S. 30, 36 (1992); United Sav. Assn. of Tex. v. Timbers
of Inwood Forest Associates, Ltd., 484 U. S. 365, 374Â375
(1988); see also Dewsnup v. Timm, 502 U. S. 410, 426 (1992)
(Scalia, J., dissenting). The Court's attempt to escape the
6 As noted at n. 1, supra, an earlier version of the Senate bill con-
tained a provision that would have added to § 548 the conclusive pre-
sumption the Court implies here. See S. 445, 98th Cong., 1st Sess.,
§ 360 (1983) ("A secured party or third party purchaser who obtains
title to an interest of the debtor in property pursuant to a good faith
prepetition foreclosure, power of sale, or other proceeding or provision
of nonbankruptcy law permitting or providing for the realization of
security upon default of the borrower under a mortgage, deed of trust,
or other security agreement takes for reasonably equivalent value
within the meaning of this section"). The provision was deleted from
the legislation enacted by Congress.
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Souter, J., dissenting
plain effect of § 548(a)(2)(A) opens it to some equally plain
objections.
The first and most obvious of these objections is the very
enigma of the Court's reading. If a property's "value" is
conclusively presumed to be whatever it sold for, the "less
than reasonabl[e] equivalen[ce]" question will never be worth
asking, and the bankruptcy avoidance power will apparently
be a dead letter in reviewing real estate foreclosures. Cf.
11 U. S. C. § 361(3) ("indubitable equivalent").7 The Court
answers that the section is not totally moribund: it still fur-
nishes a way to attack collusive or procedurally deficient real
property foreclosures, and it enjoys a vital role in authoriz-
ing challenges to other transfers than those occurring on real
estate foreclosure. The first answer, however, just runs up
against a new objection. If indeed the statute fails to reach
noncollusive, procedurally correct real estate foreclosures,
then the recent amendments discussed above were probably
superfluous. There is a persuasive case that collusive or se-
riously irregular real estate sales were already subject to
avoidance in bankruptcy, see, e. g., In re Worcester, 811 F. 2d
1224, 1228, 1232 (CA9 1987) (interpreting § 541(a)), and nei-
ther the Court nor the respondents and their amici identify
any specific case in which a court pronounced itself powerless
to avoid a collusive foreclosure sale. But cf. Madrid, supra,
at 1204 (Farris, J., concurring). It would seem peculiar,
7 Evidently, many States take a less Panglossian view than does the
majority about the prices paid at sales conducted in accordance with their
prescribed procedures. If foreclosure-sale prices truly represented what
properties are "worth," ante, at 539, or their "fair and proper price," ante,
at 545, it would stand to reason that deficiency judgments would be
awarded simply by calculating the difference between the debt owed and
the "value," as established by the sale. Instead, in those jurisdictions
permitting creditors to seek deficiency judgments it is quite common to
require them to show that the foreclosure price roughly approximated the
property's (appraised) value. See, e. g., Tex. Prop. Code Ann. §§ 51.003Â
51.005 (Supp. 1992); see generally Gelfert v. National City Bank of N. Y.,
313 U. S. 221 (1941); cf. id., at 233 ("[T]he price which property commands
at a forced sale may be hardly even a rough measure of its value").
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556 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
then, that for no sound reason, Congress would have tin-
kered with these closely watched sections of the Bankruptcy
Code, for the sole purpose of endowing bankruptcy courts
with authority that had not been found wanting in the first
place.8
The Court's second answer to the objection that it renders
the statute a dead letter is to remind us that the statute
applies to all sorts of transfers, not just to real estate foreclo-
sures, and as to all the others, the provision enjoys great
vitality, calling for true comparison between value received
for the property and its "reasonably equivalent value." (In-
deed, the Court has no trouble acknowledging that some-
thing "similar to" fair market value may supply the bench-
mark of reasonable equivalence when such a sale is not
initiated by a mortgagee, ante, at 545.) This answer, how-
ever, is less tenable than the first. A common rule of con-
8 That is not the only aspect of the majority's approach that is hard to
square with the amended text. By redefining "transfer" in § 101, Con-
gress authorized the trustee to avoid any "foreclosure of the equity of
redemption" for "less than a reasonably equivalent value." In light of the
fact, see, e. g., Lifton, Real Estate in Trouble: Lender's Remedies Need an
Overhaul, 31 Bus. Law 1927, 1937 (1976), that most foreclosure properties
are sold (at noncollusive and procedurally unassailable sales, we may pre-
sume) for the precise amount of the outstanding indebtedness, when some
(but by no means all) are worth more, see generally Wechsler, Through
the Looking Glass: Foreclosure by Sale as De Facto Strict Foreclosure-
An Empirical Study of Mortgage Foreclosure and Subsequent Resale, 70
Cornell L. Rev. 850 (1985), it seems particularly curious that Congress
would amend a statute to recognize that a debtor "transfers" an "interest
in property," when the equity of redemption is foreclosed, fully intending
that the "reasonably equivalent value" of that interest would, in the major-
ity of cases, be presumed conclusively to be zero.
To the extent that the Court believes the amended § 548(a)(2)(A) to be
addressed to "collusive" sales, meanwhile, a surprisingly indirect means
was chosen. Cf. 11 U. S. C. § 363(n) (authorizing trustee avoidance of post-
petition sale, or, in the alternative, recovery of the difference between the
"value" of the property and the "sale price," when the "sale price was
controlled by an agreement"). Cf. ante, at 537 (citing Chicago v. Environ-
mental Defense Fund, ante, at 338).
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Souter, J., dissenting
struction calls for a single definition of a common term
occurring in several places within a statute, see Bray
v. Alexandria Women's Health Clinic, 506 U. S. 263, 283
(1993); Dewsnup v. Timm, 502 U. S., at 422 (Scalia, J., dis-
senting) (" `[N]ormal rule[s] of statutory construction' " re-
quire that "identical words [used] in the same section of the
same enactment" must be given the same effect) (emphasis
in original), and the case for different definitions within a
single text is difficult to make, cf. Bray, supra, at 292 (Sou-
ter, J., concurring in part). But to give a single term two
different and inconsistent meanings (one procedural, one sub-
stantive) for a single occurrence is an offense so unlikely that
no common prohibition has ever been thought necessary to
guard against it.9 Cf. Owen v. Owen, 500 U. S. 305, 313
(1991) (declining to "create a distinction [between state and
federal exemptions] that the words of the statute do not con-
tain"); Union Bank v. Wolas, 502 U. S. 151, 162 (1991) (the
"statutory text . . . makes no distinction between short-term
debt and long-term debt"). Unless whimsy is attributed to
Congress, the term in question cannot be exclusively proce-
dural in one class of cases and entirely substantive in all
others. To be sure, there are real differences between sales
on mortgage foreclosures and other transfers, as Congress
no doubt understood, but these differences may be addressed
simply and consistently with the statute's plain meaning.10
9 Indeed, the Court candidly acknowledges that the proliferation of
meanings may not stop at two: not only does "reasonably equivalent value"
mean one thing for foreclosure sales and another for other transfers, but
tax sales and other transactions may require still other, unspecified
"benchmark[s]." See ante, at 537, and n. 3.
10 The Court's somewhat mischievous efforts to dress its narrowly proce-
dural gloss in respectable, substantive garb, see ante, at 537Â538, 546Â547,
make little sense. The majority suggests that even if the statute must be
read to require a comparison, the one it compels dooms the trustee always
to come up short. A property's "value," the Court would have us believe,
should be determined with reference to a State's rules governing credi-
tors' enforcement of their rights, in the same fashion that it might encom-
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558 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
The "neologism," ante, at 537, "reasonably equivalent
value" (read in light of the amendments confirming that fore-
closures are to be judged under the same standard as are
pass a zoning rule governing (as a matter of state law) a neighboring
landowner's entitlement to build a gas station. But the analogy proposed
ignores the patent difference between these two aspects of the "regulatory
background," ante, at 539: while the zoning ordinance would reduce the
value of the property "to the world," foreclosure rules affect not the price
any purchaser "would pay," ibid., but rather the means by which the mort-
gagee is permitted to extract its entitlement from the entire "value" of
the property.
Such distinctions are a mainstay of bankruptcy law, where it is com-
monly said that creditors' "substantive" state-law rights "survive" in
bankruptcy, while their "procedural" or "remedial" rights under state
debtor-creditor law give way, see, e. g., United Sav. Assn. of Tex. v. Tim-
bers of Inwood Forest Associates, Ltd., 484 U. S. 365, 370Â371 (1988) (re-
fusing to treat "right to immediate foreclosure" as an "interest in prop-
erty" under applicable nonbankruptcy law); Owen v. Owen, 500 U. S. 305
(1991) (bankruptcy exemption does not incorporate state law with respect
to liens); United States v. Whiting Pools, Inc., 462 U. S. 198, 206Â207
(1983); see also Gelfert v. National City Bank of N. Y., 313 U. S., at 234
("[T]he advantages of a forced sale" are not "a . . . property right" under
the Constitution). And while state foreclosure rules reflect, inter alia,
an understandable judgment that creditors should not be forced to wait
indefinitely as their defaulting debtors waste the value of loan collateral,
bankruptcy law affords mortgagees distinct and presumably adequate
protections for their interest, see 11 U. S. C. §§ 548(c), 550(d)(1), 362(d);
Wright v. Union Central Life Ins. Co., 311 U. S. 273, 278Â279 (1940), along
with the general promise that the debtor's estate will, effectively, be maxi-
mized in the interest of creditors.
The majority professes to be "baffled," ante, at 539, n. 5, by this com-
monsense distinction between state zoning laws and state foreclosure pro-
cedures. But a zoning rule is not merely "price-affecting," ante, at 539:
it affects the property's value (i. e., the price for which any transferee can
expect to resell). State-mandated foreclosure procedures, by contrast,
might be called "price-affecting," in the sense that adherence solely to
their minimal requirements will no doubt keep sale prices low. But state
rules hardly forbid mortgagees to make efforts to encourage more robust
bidding at foreclosure sales; they simply fail to furnish sellers any reason
to do so, see infra.
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Souter, J., dissenting
other transfers) has a single meaning in the one provision
in which it figures: a court should discern the "value" of
the property transferred and determine whether the price
paid was, under the circumstances, "less than reasonabl[e]."
There is thus no reason to rebuke the Courts of Appeals
for having failed to "come to grips," ante, at 538, with the
implications of the fact that foreclosure sales cannot be ex-
pected to yield fair market value. The statute has done so
for them. As courts considering nonforeclosure transfers
often acknowledge, the qualification "reasonably equivalent"
itself embodies both an awareness that the assets of insol-
vent debtors are commonly transferred under conditions that
will yield less than their optimal value and a judgment that
avoidance in bankruptcy (unsettling as it does the expecta-
tions of parties who may have dealt with the debtor in
good faith) should only occur when it is clear that the
bankruptcy estate will be substantially augmented. See,
e. g., In re Southmark Corp., 138 B. R. 820, 829Â830
(Bkrtcy. Ct. ND Tex. 1992) (court must compare "the value
of what went out with the value of what came in," but
the equivalence need not be "dollar for dollar") (citation
omitted); In re Countdown of Conn., Inc., 115 B. R. 18, 21
(Bkrtcy. Ct. Conn. 1990) ("[S]ome disparity between the
value of the collateral and the value of debt does not neces-
sarily lead to a finding of lack of reasonably equivalent
value").11
11 Indeed, it is not clear from its opinion that the Court has "come to
grips," ante, at 538, with the reality that "involuntary" transfers occur
outside the real property setting, that legally voluntary transfers can be
involuntary in fact, and that, where insolvent debtors on the threshold of
bankruptcy are concerned, transfers for full, "fair market" price are more
likely the exception than the rule. On the Court's reading, for example,
nothing would prevent a debtor who deeded property to a mortgagee "in
lieu of foreclosure" prior to bankruptcy from having the transaction set
aside, under the "ordinar[y]," ante, at 545, substantive standard.
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560 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
B
I do not share in my colleagues' apparently extreme dis-
comfort at the prospect of vesting bankruptcy courts with
responsibility for determining whether "reasonably equiva-
lent value" was received in cases like this one, nor is the
suggestion well taken that doing so is an improper abdica-
tion. Those courts regularly make comparably difficult (and
contestable) determinations about the "reasonably equiva-
lent value" of assets transferred through other means than
foreclosure sales, see, e. g., Covey v. Commercial Nat. Bank,
960 F. 2d 657, 661Â662 (CA7 1992) (rejecting creditor's claim
that resale price may be presumed to be "reasonably equiva-
lent value" when that creditor "seiz[es] an asset and sell[s] it
for just enough to cover its loan (even if it would have been
worth substantially more as part of an ongoing enterprise)");
In re Morris Communications NC, Inc., 914 F. 2d 458
(CA4 1990) (for "reasonably equivalent value" purposes,
worth of entry in cellular phone license "lottery" should be
discounted to reflect probability of winning); cf. In re Royal
Coach Country, Inc., 125 B. R. 668, 673Â674 (Bkrtcy. Ct. MD
Fla. 1991) (avoiding exchange of 1984 truck valued at $2,800
for 1981 car valued at $500), and there is every reason to
believe that they, familiar with these cases (and with local
conditions) as we are not, will give the term sensible content
in evaluating particular transfers on foreclosure, cf. United
States v. Energy Resources Co., 495 U. S. 545, 549 (1990);
NLRB v. Bildisco & Bildisco, 465 U. S. 513, 527 (1984);
Rosen v. Barclays Bank of N. Y., 115 B. R. 433 (EDNY
1990).12 As in other § 548(a)(2) cases, a trustee seeking
12 It is only by renewing, see ante, at 548, its extreme claim, but see
n. 2, supra, that market value is wholly irrelevant to the analysis of
foreclosure-sale transfer (and that bankruptcy courts are debarred from
even "referring" to it) that the Court is able to support its assertion that
evaluations of such transactions are somehow uniquely beyond their ken.
The majority, as part of its last-ditch effort to salvage some vitality for
the provision, itself would require bankruptcy judges to speculate as to the
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Cite as: 511 U. S. 531 (1994) 561
Souter, J., dissenting
avoidance of a foreclosure-sale transfer must persuade the
bankruptcy court that the price obtained on prebankruptcy
transfer was "unreasonabl[y]" low, and as in other cases
under the provision, the gravamen of such a claim will be
that the challenged transfer significantly and needlessly di-
minished the bankruptcy estate, i. e., that it extinguished a
substantial equity interest of the debtor and that the fore-
closing mortgagee failed to take measures which (consist-
ently with state law, if not required by it) would have aug-
mented the price realized.13
price "that would have been received if the foreclosure sale had proceeded
according to [state] law." Ante, at 546; cf. ante, at 540 (expressing skep-
ticism about judicial competence to determine "such a thing" as a "fair"
forced-sale price).
13 In this regard and in its professions of deference to the processes of
local self-government, the Court wrongly elides any distinction between
what state law commands and what the States permit. While foreclosure
sales "under state law" may typically be sparsely attended and yield low
prices, see infra, at 564, these are perhaps less the result of state law
"strictures," ante, at 538, than of what state law fails to supply, incentives
for foreclosing lenders to seek higher prices (by availing themselves of
advertising or brokerage services, for example). Thus, in judging the
reasonableness of an apparently low price, it will surely make sense to
take into account (as the Court holds a bankruptcy court is forbidden to)
whether a mortgagee who promptly resold the property at a large profit
answers, "I did the most that could be expected of me" or "I did the least
I was allowed to."
I also do not join my colleagues in their special scorn for the "70% rule"
associated with Durrett v. Washington Nat. Ins. Co., 621 F. 2d 201 (CA5
1980), which they decry, ante, at 540, as less an exercise in statutory inter-
pretation than one of "policy determinatio[n]." Such, of course, it may be,
in the limited sense that the statute's text no more mentions the 70%
figure than it singles out procedurally regular foreclosure sales for the
special treatment the Court accords them. But the Durrett "rule," as its
expositor has long made clear, claims only to be a description of what
foreclosure prices have, in practice, been found "reasonabl[e]," and as such,
it is consistent (as the majority's "policy determination" is not), with the
textual directive that one value be compared to another, the transfer being
set aside when one is unreasonably "less than" the other. To the extent,
moreover, that Durrett is said to have announced a "rule," it is better
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562 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
Whether that enquiry is described as a search for a bench-
mark " `fair' forced-sale price," ante, at 540, or for the price
that was reasonable under the circumstances, cf. ante, at 538,
n. 4, is ultimately, as the Court itself seems to acknowledge,
see ante, at 540, of no greater moment than whether the rule
the Court discerns in the provision is styled an "exception,"
an "irrebuttable presumption," or a rule of per se validity.
The majority seems to invoke these largely synonymous
terms in service of its thesis that the provision's text is
"ambiguous" (and therefore ripe for application of policy-
based construction rules), but the question presented here,
whether the term "less than reasonably equivalent value"
may be read to forestall all enquiry beyond whether state-
law foreclosure procedures were adhered to, admits only
two answers, and only one of these, in the negative, is within
the "apparent authority," ibid., conferred on courts by the
text of the Bankruptcy Code.14
C
What plain meaning requires and courts can provide, in-
deed, the policies underlying a national bankruptcy law fully
understood as recognizing a "safe harbor" or affirmative defense for bid-
ding mortgagees or other transferees who paid 70% or more of a proper-
ty's appraised value at the time of sale.
14 The Court's criticism, ante, at 546Â548, deftly conflates two distinct
questions: is the price on procedurally correct and noncollusive sale pre-
sumed irrebuttably to be reasonably equivalent value (the question before
us) and, if not, what are the criteria (a question not raised here but ex-
plored by courts that have rejected the irrebuttable presumption)? What
is "plain" is the answer to the first question, thanks to the plain language,
whose meaning is confirmed by policy and statutory history. The answer
to the second may not be plain in the sense that the criteria might be
self-evident, see n. 13, supra, but want of self-evidence hardly justifies
retreat from the obvious answer to the first question. Courts routinely
derive criteria, unexpressed in a statute, to implement standards that are
statutorily expressed, and in a proper case this Court could (but for the
majority's decision) weigh the relative merits of the subtly different ap-
proaches taken by courts that have rejected the irrebuttable presumption.
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Cite as: 511 U. S. 531 (1994) 563
Souter, J., dissenting
support. This case is a far cry from the rare one where the
effect of implementing the ordinary meaning of the statutory
text would be "patent absurdity," see INS v. Cardoza-
Fonseca, 480 U. S. 421, 452 (1987) (Scalia, J., concurring in
judgment), or "demonstrably at odds with the intentions of
its drafters," United States v. Ron Pair Enterprises, Inc.,
489 U. S. 235, 244 (1989) (internal quotation marks omitted).15
Permitting avoidance of procedurally regular foreclosure
sales for low prices (and thereby returning a valuable asset
to the bankruptcy estate) is plainly consistent with those pol-
icies of obtaining a maximum and equitable distribution for
creditors and ensuring a "fresh start" for individual debtors,
which the Court has often said are at the core of federal
bankruptcy law. See Stellwagen v. Clum, 245 U. S. 605, 617
(1918); Williams v. United States Fidelity & Guaranty Co.,
236 U. S. 549, 554Â555 (1915). They are not, of course, any
less the policies of federal bankruptcy law simply because
state courts will not, for a mortgagor's benefit, set aside a
foreclosure sale for "price inadequacy" alone.16 The unwill-
15 Tellingly, while the Court's opinion celebrates fraudulent conveyance
law and state foreclosure law as the "twin pillars" of creditor-debtor regu-
lation, it evinces no special appreciation of the fact that this case arises
under the Bankruptcy Code, which, in maintaining the national system of
credit and commerce, embodies policies distinct from those of state
debtor-creditor law, see generally Stellwagen v. Clum, 245 U. S. 605, 617
(1918), and which accordingly endows trustees with avoidance power be-
yond what state law provides, see Board of Trade of Chicago v. Johnson,
264 U. S. 1, 10 (1924); Stellwagen, supra, at 617; 11 U. S. C. §§ 541(a), 544(a).
16 Although the majority accurately states this " `black letter' " law, it
also acknowledges that courts will avoid a foreclosure sale for a price that
"shock[s] the conscience," see ante, at 542 (internal quotation marks omit-
ted), a standard that has been invoked to justify setting aside sales yield-
ing as much as 87% of appraised value. See generally Washburn, The
Judicial and Legislative Response to Price Inadequacy in Mortgage Fore-
closure Sales, 53 S. Cal. L. Rev. 843, 862Â870 (1980). Moreover, while
price inadequacy "alone" may not be enough to set aside a sale, such inade-
quacy will often induce a court to undertake a sort of "strict scrutiny" of
a sale's compliance with state procedures. See, e. g., id., at 861.
511us2$53M 11-03-97 22:06:58 PAGES OPINPGT
564 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
ingness of the state courts to upset a foreclosure sale for that
reason does not address the question of what "reasonably
equivalent value" means in bankruptcy law, any more than
the refusal of those same courts to set aside a contract for
"mere inadequacy of consideration," see Restatement (Sec-
ond) of Contracts § 79 (1981), would define the scope of
the trustee's power to reject executory contracts. See 11
U. S. C. § 365 (1988 ed. and Supp. IV). On the contrary, a
central premise of the bankruptcy avoidance powers is that
what state law plainly allows as acceptable or "fair," as be-
tween a debtor and a particular creditor, may be set aside
because of its impact on other creditors or on the debtor's
chances for a fresh start.
When the prospect of such avoidance is absent, indeed, the
economic interests of a foreclosing mortgagee often stand in
stark opposition to those of the debtor himself and of his
other creditors. At a typical foreclosure sale, a mortgagee
has no incentive to bid any more than the amount of the
indebtedness, since any "surplus" would be turned over to
the debtor (or junior lienholder), and, in some States, it can
even be advantageous for the creditor to bid less and seek a
deficiency judgment. See generally Washburn, The Judicial
and Legislative Response to Price Inadequacy in Mortgage
Foreclosure Sales, 53 S. Cal. L. Rev. 843, 847Â851 (1980); Ehr-
lich, Avoidance of Foreclosure Sales as Fraudulent Con-
veyances: Accommodating State and Federal Objectives, 71
Va. L. Rev. 933, 959Â962 (1985); G. Osborne, G. Nelson, &
D. Whitman, Real Estate Finance Law § 8.3, p. 528 (1979).
And where a property is obviously worth more than the
amount of the indebtedness, the lending mortgagee's inter-
ests are served best if the foreclosure sale is poorly attended;
then, the lender is more likely to take the property by bid-
ding the amount of indebtedness, retaining for itself any
profits from resale. While state foreclosure procedures may
somewhat mitigate the potential for this sort of opportunism
(by requiring for publication of notice, for example), it surely
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Cite as: 511 U. S. 531 (1994) 565
Souter, J., dissenting
is plausible that Congress, in drafting the Bankruptcy Code,
would find it intolerable that a debtor's assets be wasted and
the bankruptcy estate diminished, solely to speed a mortga-
gee's recovery.
II
Confronted with the eminent sense of the natural reading,
the Court seeks finally to place this case in a line of decisions,
e. g., Gregory v. Ashcroft, 501 U. S. 452 (1991), in which we
have held that something more than mere plain language is
required.17 Because the stability of title in real property
may be said to be an "important" state interest, the Court
suggests, see ante, at 544, the statute must be presumed to
contain an implicit foreclosure-sale exception, which Con-
gress must override expressly or not at all. Our cases im-
pose no such burden on Congress, however. To be sure,
they do offer support for the proposition that when the Bank-
ruptcy Code is truly silent or ambiguous, it should not be
17 The Court dangles the possibility that Gregory itself is somehow perti-
nent to this case, but that cannot be so. There, invoking principles of
constitutional avoidance, we recognized a "plain statement" rule, whereby
Congress could supplant state powers "reserved under the Tenth Amend-
ment" and "at the heart of representative government," only by making
its intent to do so unmistakably clear. Unlike the States' authority to
"determine the qualifications of their most important government offi-
cials," 501 U. S., at 463 (e. g., to enforce a retirement age for state judges
mandated by the State Constitution, at issue in Gregory), the authority of
the States in defining and adjusting the relations between debtors and
creditors has never been plenary, nor could it fairly be called "essential to
their independence." In making the improbable contrary assertion, the
Court converts a stray phrase in American Land Co. v. Zeiss, 219 U. S. 47
(1911), which upheld against substantive due process challenge the power
of a State to legislate with respect to land titles (California's effort to
restore order after title records had been destroyed in the calamitous 1906
San Francisco earthquake) into a pronouncement about the allocation of
responsibility between the National Government and the States. Cf. Ci-
pollone v. Liggett Group, Inc., 505 U. S. 504, 546 (1992) (Scalia, J., concur-
ring in judgment in part and dissenting in part) (emphasizing the inappli-
cability of "clear-statement" rules to ordinary pre-emption cases).
511us2$53M 11-03-97 22:06:58 PAGES OPINPGT
566 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
read as departing from previous practice, see, e. g., Dewsnup
v. Timm, 502 U. S. 410 (1992); Butner v. United States, 440
U. S. 48, 54 (1979). But we have never required Congress
to supply "clearer textual guidance" when the apparent
meaning of the Bankruptcy Code's text is itself clear, as it is
here. See Ron Pair, 489 U. S., at 240 ("[I]t is not appro-
priate or realistic to expect Congress to have explained with
particularity each step it took. Rather, as long as the statu-
tory scheme is coherent and consistent, there generally is no
need for a court to inquire beyond the plain language of the
statute"); cf. Dewsnup, supra, at 434 (Scalia, J., dissenting)
(Court should not "venerat[e] `pre-Code law' " at the expense
of plain statutory meaning).18
We have, on many prior occasions, refused to depart from
plain Code meaning in spite of arguments that doing that
would vindicate similar, and presumably equally "impor-
tant," state interests. In Owen v. Owen, 500 U. S. 305
(1991), for example, the Court refused to hold that the state
"opt-out" policy embodied in § 522(b)(1) required immunity
from avoidance under § 522(f) for a lien binding under Flori-
da's exemption rules. We emphasized that "[n]othing in the
text of § 522(f) remotely justifies treating the [state and fed-
eral] exemptions differently." 500 U. S., at 313. And in
Johnson v. Home State Bank, 501 U. S. 78 (1991), we relied
on plain Code language to allow a debtor who had "stripped"
himself of personal mortgage liability under Chapter 7 to
reschedule the remaining indebtedness under Chapter 13,
notwithstanding a plausible contrary argument based on
Code structure and a complete dearth of precedent for the
manoeuver under state law and prior bankruptcy practice.
18 Even if plain language is insufficiently "clear guidance" for the Court,
further guidance is at hand here. The provision at hand was amended in
the face of judicial decisions driven by the same policy concerns that ani-
mate the Court, to make plain that foreclosure sales and other "involun-
tary" transfers are within the sweep of the avoidance power.
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Cite as: 511 U. S. 531 (1994) 567
Souter, J., dissenting
The Court has indeed given full effect to Bankruptcy Code
terms even in cases where the Code would appear to have
cut closer to the heart of state power than it does here. No
"clearer textual guidance" than a general definitional provi-
sion was required, for example, to hold that criminal restitu-
tion could be a "debt" dischargeable under Chapter 13, see
Davenport, 495 U. S., at 563Â564 (declining to "carve out a
broad judicial exception" from statutory term, even to avoid
"hamper[ing] the flexibility of state criminal judges"). Nor,
in Perez v. Campbell, 402 U. S. 637 (1971), did we require an
express reference to state highway safety laws before con-
struing the generally worded discharge provision of the
Bankruptcy Act to bar application of a state statute suspend-
ing the driver's licenses of uninsured tortfeasors.19
Rather than allow state practice to trump the plain mean-
ing of federal statutes, cf. Adams Fruit Co. v. Barrett, 494
U. S. 638, 648 (1990), our cases describe a contrary rule:
whether or not Congress has used any special "pre-emptive"
language, state regulation must yield to the extent it actu-
ally conflicts with federal law. This is no less true of laws
enacted under Congress's power to "establish . . . uniform
Laws on the subject of Bankruptcies," U. S. Const., Art. I,
§ 8, cl. 4, than of those passed under its Commerce Clause
power. See generally Perez v. Campbell, supra; cf. id., at
19 Only over vigorous dissent did the Court read the trustee's generally
worded abandonment power, 11 U. S. C. § 554, as not authorizing abandon-
ment "in contravention of a state statute or regulation that is reasonably
designed to protect the public health or safety from identified hazards."
Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection,
474 U. S. 494, 505 (1986); cf. id., at 513 (Rehnquist, J., dissenting) ("Con-
gress knew how to draft an exception covering the exercise of `certain'
police powers when it wanted to"); cf. also L. Cherkis & L. King, Collier
Real Estate Transactions and the Bankruptcy Code, p. 6Â24 (1992) (post-
Midlantic cases suggest that "if the hazardous substances on the property
do not pose immediate danger to the public, and if the trustee has
promptly notified local environmental authorities of the contamination and
cooperated with them, abandonment may be permitted").
511us2$53M 11-03-97 22:06:58 PAGES OPINPGT
568 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
651Â652 (rejecting the "aberrational doctrine . . . that state
law may frustrate the operation of federal law as long as the
state legislature in passing its law had some purpose in mind
other than one of frustration"); Cipollone v. Liggett Group,
Inc., 505 U. S. 504, 545, 546 (1992) (Scalia, J., concurring in
judgment in part and dissenting in part) (arguing against
a "presumption against . . . pre-emption" of "historic police
powers") (internal quotation marks omitted).
Nor, finally, is it appropriate for the Court to look to "field
pre-emption" cases, see ante, at 544, to support the higher
duty of clarity it seeks to impose on Congress. As written
and as applied by the majority of Courts of Appeals to con-
strue it, the disputed Code provision comes nowhere near
working the fundamental displacement of the state law of
foreclosure procedure that the majority's rhetoric conjures.20
20 Talk of " `radica[l] adjust[ments to] the balance of state and national
authority,' " ante, at 544, notwithstanding, the Court's submission with re-
spect to "displacement" consists solely of the fact that some private compa-
nies in Durrett jurisdictions have required purchasers of title insurance to
accept policies with "specially crafted exceptions from coverage in many
policies issued for properties purchased at foreclosure sales." Ante, at
544 (citing Cherkis & King, supra, at 5Â18 to 5Â19). The source cited
by the Court reports that these exceptions have been demanded when
mortgagees are the purchasers, but have not been required in policies
issued to third-party purchasers or their transferees, Cherkis & King,
supra, at 5Â18 to 5Â19, and that such clauses have neither been limited to
Durrett jurisdictions, nor confined to avoidance under federal bankruptcy
law. See Cherkis & King, supra, at 5Â10 (noting one standard exclusion
from coverage for "[a]ny claim, which arises . . . by reason of the operation
of federal bankruptcy, state insolvency, or similar creditors' rights laws").
Nothing in the Bankruptcy Code, moreover, deprives the States of their
broad powers to regulate directly the terms and conditions of title insur-
ance policies.
The "federally created cloud" on title seems hardly to be the Damoclean
specter that the Court makes it out to be. In the nearly 14 years since
the Durrett decision, the bankruptcy reports have included a relative
handful of decisions actually setting aside foreclosure sales, nor do the
States, either inside or outside Durrett jurisdictions, seem to have ven-
511us2$53M 11-03-97 22:06:58 PAGES OPINPGT
Cite as: 511 U. S. 531 (1994) 569
Souter, J., dissenting
To the contrary, construing § 548(a)(2)(A) as authorizing
avoidance of an insolvent's recent foreclosure-sale transfer
in which "less than a reasonably equivalent value" was
obtained is no more pre-emptive of state foreclosure proce-
dures than the trustee's power to set aside transfers by mari-
tal dissolution decree, see Britt v. Damson, 334 F. 2d 896
(CA9 1964), cert. denied, 379 U. S. 966 (1965); In re Lange,
35 B. R. 579 (Bkrtcy. Ct. ED Mo. 1983), "pre-empts" state
domestic relations law,21 or the power to reject executory
contracts, see 11 U. S. C. § 365, "displaces" the state law of
voluntary obligation. While it is surely true that if the pro-
vision were accorded its plain meaning, some States (and
many mortgagees) would take steps to diminish the risk that
particular transactions would be set aside, such voluntary
action should not be cause for dismay: it would advance core
Bankruptcy Code purposes of augmenting the bankruptcy
estate and improving the debtor's prospects for a "fresh
start," without compromising lenders' state-law rights to
move expeditiously against the property for the money
owed. To the extent, in any event, that the respondents and
their numerous amici are correct that the "important" policy
favoring security of title should count more and the "im-
portant" bankruptcy policies should count less, Congress,
and not this Court, is the appropriate body to provide
a foreclosure-sale exception. See Wolas, 502 U. S., at 162.
See also S. 1358, 100th Cong., 1st Sess. (1987) (proposed
amendment creating foreclosure-sale exception).
III
Like the Court, I understand this case to involve a choice
between two possible statutory provisions: one authorizing
tured major changes in the "diverse networks of . . . rules governing the
foreclosure process." See ante, at 541.
21 But cf. Wetmore v. Markoe, 196 U. S. 68 (1904) (alimony is not a "debt"
subject to discharge under the Bankruptcy Act).
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570 BFP v. RESOLUTION TRUST CORPORATION
Souter, J., dissenting
the trustee to avoid "involuntar[y] . . . transfers [including
foreclosure sales] . . . [for] less than a reasonably equivalent
value," see 11 U. S. C. § 548(a), and another precluding such
avoidance when "[a] secured party or third party purchaser
. . . obtains title to an interest of the debtor in property
pursuant to a good faith prepetition foreclosure . . . proceed-
ing . . . permitting . . . the realization of security upon default
of the borrower," see S. 445, 98th Cong., 1st Sess., § 360
(1983). But that choice is not ours to make, for Congress
made it in 1984, by enacting the former alternative into law
and not the latter. Without some indication that doing so
would frustrate Congress's clear intention or yield patent ab-
surdity, our obligation is to apply the statute as Congress
wrote it. Doing that in this case would produce no frustra-
tion or absurdity, but quite the opposite.
511us2$54z 11-05-97 14:07:43 PAGES OPINPGT
OCTOBER TERM, 1993 571
Syllabus
NATIONAL LABOR RELATIONS BOARD v. HEALTH
CARE & RETIREMENT CORPORATION OF
AMERICA
certiorari to the united states court of appeals for
the sixth circuit
No. 92Â1964. Argued February 22, 1994-Decided May 23, 1994
Employees are considered "supervisors," and thus are not covered under
the National Labor Relations Act, 29 U. S. C. § 152(3), if they have au-
thority, requiring the use of independent judgment, to engage in one of
12 listed activities and they hold the authority "in the interest of the
employer," § 152(11). Petitioner National Labor Relations Board has
stated that a nurse's supervisory activity incidental to the treatment
of patients is not authority exercised in the interest of the employer.
Respondent owns and operates a nursing home at which staff nurses-
including the four nurses involved in this case-are the senior ranking
employees on duty most of the time, ensure adequate staffing, make
daily work assignments, monitor and evaluate the work of nurses' aides,
and report to management. In finding that respondent had committed
an unfair labor practice in disciplining the four nurses, an Administra-
tive Law Judge concluded that the nurses were not supervisors because
their focus was on the well-being of the residents, not the employer.
The Board affirmed, but the Court of Appeals reversed, deciding that
the Board's test for determining nurses' supervisory status was incon-
sistent with the statute.
Held: The Board's test for determining whether nurses are supervisors is
inconsistent with the statute. Pp. 576Â584.
(a) The Board has created a false dichotomy-between acts taken in
connection with patient care and acts taken in the interest of the em-
ployer. Cf. NLRB v. Yeshiva Univ., 444 U. S. 672, 688. Since patient
care is a nursing home's business, it follows that attending to the needs
of patients, who are the employer's customers, is in the employer's inter-
est. This conclusion is supported by the Court's decision in Packard
Motor Car Co. v. NLRB, 330 U. S. 485, 488Â489, interpreting the phrase
"in the interest of an employer." Pp. 576Â580.
(b) The Board's nonstatutory arguments supporting its interpretation
are unpersuasive. Its contention that granting organizational rights to
nurses whose supervisory authority concerns patient care does not
threaten the conflicting loyalties that the supervisor exception was de-
signed to avoid is rejected. The Act must be enforced according to its
511us2$54z 11-05-97 14:07:43 PAGES OPINPGT
572 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Opinion of the Court
own terms, not by creating legal categories inconsistent with its mean-
ing. Nor can the tension between the Act's exclusion of supervisory
and managerial employees and its inclusion of professionals be resolved
by distorting the statutory language in the manner proposed by the
Board. In addition, an isolated statement in the legislative history of
the 1974 amendments to the Act-expressing apparent approval of the
application of the Board's then-current supervisory test to nurses-does
not represent an authoritative interpretation of the phrase "in the inter-
est of the employer" enacted by Congress in 1947. Pp. 580Â582.
987 F. 2d 1256, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Ginsburg, J., filed
a dissenting opinion, in which Blackmun, Stevens, and Souter, JJ.,
joined, post, p. 584.
Michael R. Dreeben argued the cause for petitioner.
With him on the briefs were Solicitor General Days, Deputy
Solicitor General Wallace, Jerry M. Hunter, Nicholas E.
Karatinos, Norton J. Come, Linda Sher, John Emad Arbab,
and Daniel Silverman.
Maureen E. Mahoney argued the cause for respondent.
With her on the brief were Cary R. Cooper, Margaret J.
Lockhart, and R. Jeffrey Bixler.*
Justice Kennedy delivered the opinion of the Court.
The National Labor Relations Act (Act) affords employees
the rights to organize and to engage in collective bargaining
free from employer interference. The Act does not grant
*Briefs of amici curiae urging reversal were filed for the American
Federation of Labor and Congress of Industrial Organizations by Marsha
S. Berzon and Laurence Gold; and for the American Nurses Association
by Barbara J. Sapin and Woody N. Peterson.
Briefs of amici curiae urging affirmance were filed for the American
Health Care Association by Andrew A. Peterson, Thomas V. Walsh, and
Patrick L. Vaccaro; for the Council on Labor Law Equality by Gerard
C. Smetana and Michael E. Avakian; and for U. S. Home Care Corp. by
William H. DuRoss III.
511us2$54L 11-05-97 14:07:43 PAGES OPINPGT
Cite as: 511 U. S. 571 (1994) 573
Opinion of the Court
those rights to supervisory employees, however, so the statu-
tory definition of supervisor becomes essential in determin-
ing which employees are covered by the Act. In this case,
we decide the narrow question whether the National Labor
Relations Board's (Board's) test for determining if a nurse is
a supervisor is consistent with the statutory definition.
I
Congress enacted the National Labor Relations Act in
1935. Act of July 5, 1935, ch. 372, 49 Stat. 449. In the early
years of its operation, the Act did not exempt supervisory
employees from its coverage; as a result, supervisory em-
ployees could organize as part of bargaining units and negoti-
ate with the employer. Employers complained that this
produced an imbalance between labor and management, but
in 1947 this Court refused to carve out a supervisory em-
ployee exception from the Act's broad coverage. The Court
stated that "it is for Congress, not for us, to create excep-
tions or qualifications at odds with [the Act's] plain terms."
Packard Motor Car Co. v. NLRB, 330 U. S. 485, 490 (1947).
Later that year, Congress did just that, amending the statute
so that the term " `employee' . . . shall not include . . . any
individual employed as a supervisor." 61 Stat. 137Â138, cod-
ified at 29 U. S. C. § 152(3). Congress defined a supervisor
as:
"[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment." 61
Stat. 138, codified at 29 U. S. C. § 152(11).
As the Board has stated, the statute requires the res-
olution of three questions; and each must be answered in
511us2$54L 11-05-97 14:07:43 PAGES OPINPGT
574 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Opinion of the Court
the affirmative if an employee is to be deemed a super-
visor. First, does the employee have authority to engage in
1 of the 12 listed activities? Second, does the exercise of
that authority require "the use of independent judgment"?
Third, does the employee hold the authority "in the inter-
est of the employer"? Northcrest Nursing Home, 313
N. L. R. B. 491, 493 (1993). This case concerns only the
third question, and our decision turns upon the proper inter-
pretation of the statutory phrase "in the interest of the
employer."
In cases involving nurses, the Board admits that it has
interpreted the statutory phrase in a unique manner. Tr. of
Oral Arg. 52 (Board: "[t]he Board has not applied a theory
that's phrased in the same terms to other categories of pro-
fessionals"). The Board has held that "a nurse's direction of
less-skilled employees, in the exercise of professional judg-
ment incidental to the treatment of patients, is not authority
exercised `in the interest of the employer.' " Pet. for Cert.
15. As stated in reviewing its position on this issue in its
recent decision in Northcrest Nursing Home, supra, at 491Â
492, the Board believes that its special interpretation of "in
the interest of the employer" in cases involving nurses is
necessary because professional employees (including regis-
tered nurses) are not excluded from coverage under the Act.
See 29 U. S. C. § 152(12). Respondent counters that "[t]here
is simply no basis in the language of the statute to conclude
that direction given to aides in the interest of nursing home
residents, pursuant to professional norms, is not `in the inter-
est of the employer.' " Brief for Respondent 30.
In this case, the Board's General Counsel issued a com-
plaint alleging that respondent, the owner and operator of
the Heartland Nursing Home in Urbana, Ohio, had com-
mitted unfair labor practices in disciplining four licensed
practical nurses. At Heartland, the Director of Nursing has
overall responsibility for the nursing department. There is
also an Assistant Director of Nursing, 9 to 11 staff nurses
511us2$54L 11-05-97 14:07:43 PAGES OPINPGT
Cite as: 511 U. S. 571 (1994) 575
Opinion of the Court
(including both registered nurses and the four licensed prac-
tical nurses involved in this case), and 50 to 55 nurses' aides.
The staff nurses are the senior ranking employees on duty
after 5 p.m. during the week and at all times on weekends-
approximately 75% of the time. The staff nurses have re-
sponsibility to ensure adequate staffing; to make daily work
assignments; to monitor the aides' work to ensure proper
performance; to counsel and discipline aides; to resolve aides'
problems and grievances; to evaluate aides' performances;
and to report to management. In light of these varied activ-
ities, respondent contended, among other things, that the
four nurses involved in this case were supervisors, and so
not protected under the Act. The Administrative Law
Judge (ALJ) disagreed, concluding that the nurses were not
supervisors. The ALJ stated that the nurses' supervisory
work did not "equate to responsibly . . . direct[ing] the aides
in the interest of the employer," noting that "the nurses'
focus is on the well-being of the residents rather than of the
employer." 306 N. L. R. B. 68, 70 (1992) (internal quotation
marks omitted) (emphasis added). The Board stated only
that "[t]he judge found, and we agree, that the Respondent's
staff nurses are employees within the meaning of the Act."
306 N. L. R. B. 63, 63, n. 1 (1992).
The United States Court of Appeals for the Sixth Circuit
reversed. 987 F. 2d 1256 (1993). The Court of Appeals had
decided in earlier cases that the Board's test for determining
the supervisory status of nurses was inconsistent with the
statute. See Beverly California Corp. v. NLRB, 970 F. 2d
1548 (1992); NLRB v. Beacon Light Christian Nursing
Home, 825 F. 2d 1076 (1987). In Beverly, for example, the
court had stated that "the notion that direction given to sub-
ordinate personnel to ensure that the employer's nursing
home customers receive `quality care' somehow fails to qual-
ify as direction given `in the interest of the employer' makes
very little sense to us." 970 F. 2d, at 1552. Addressing the
instant case, the court followed Beverly and again held the
511us2$54L 11-05-97 14:07:43 PAGES OPINPGT
576 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Opinion of the Court
Board's interpretation inconsistent with the statute. 987 F.
2d, at 1260. The court further stated that "it is up to Con-
gress to carve out an exception for the health care field, in-
cluding nurses, should Congress not wish for such nurses to
be considered supervisors." Id., at 1261. The court "re-
mind[ed] the Board that it is the courts, and not the Board,
who bear the final responsibility for interpreting the law."
Id., at 1260. After concluding that the Board's test was in-
consistent with the statute, the court found that the four
licensed practical nurses involved in this case were supervi-
sors. Id., at 1260Â1261.
We granted certiorari, 510 U. S. 810 (1993), to resolve the
conflict in the Courts of Appeals over the validity of the
Board's rule. See, e. g., Waverly-Cedar Falls Health Care
Center, Inc. v. NLRB, 933 F. 2d 626 (CA8 1991); NLRB v.
Res-Care, Inc., 705 F. 2d 1461 (CA7 1983); Misericordia Hos-
pital Medical Center v. NLRB, 623 F. 2d 808 (CA2 1980).
II
We must decide whether the Board's test for determining
if nurses are supervisors is rational and consistent with the
Act. See Fall River Dyeing & Finishing Corp. v. NLRB,
482 U. S. 27, 42 (1987). We agree with the Court of Appeals
that it is not.
A
The Board's interpretation, that a nurse's supervisory ac-
tivity is not exercised in the interest of the employer if it is
incidental to the treatment of patients, is similar to an ap-
proach the Board took, and we rejected, in NLRB v. Yeshiva
Univ., 444 U. S. 672 (1980). There, we had to determine
whether faculty members at Yeshiva were "managerial em-
ployees." Managerial employees are those who "formulate
and effectuate management policies by expressing and mak-
ing operative the decisions of their employer." NLRB v.
Bell Aerospace Co., 416 U. S. 267, 288 (1974) (internal quota-
tion marks omitted). Like supervisory employees, manage-
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Opinion of the Court
rial employees are excluded from the Act's coverage. Id., at
283 ("so clearly outside the Act that no specific exclusionary
provision was thought necessary"). The Board in Yeshiva
argued that the faculty members were not managerial, con-
tending that faculty authority was "exercised in the faculty's
own interest rather than in the interest of the university."
444 U. S., at 685. To support its position, the Board placed
much reliance on the faculty members' independent profes-
sional role in designing the curriculum and in discharging
their professional obligations to the students. We found the
Board's reasoning unpersuasive:
"In arguing that a faculty member exercising independ-
ent judgment acts primarily in his own interest and
therefore does not represent the interest of his em-
ployer, the Board assumes that the professional inter-
ests of the faculty and the interests of the institution are
distinct, separable entities with which a faculty member
could not simultaneously be aligned. The Court of
Appeals found no justification for this distinction, and
we perceive none. In fact, the faculty's professional
interests-as applied to governance at a university
like Yeshiva-cannot be separated from those of the
institution.
". . . The `business' of a university is education." Id.,
at 688.
The Board's reasoning fares no better here than it did in
Yeshiva. As in Yeshiva, the Board has created a false di-
chotomy-in this case, a dichotomy between acts taken in
connection with patient care and acts taken in the interest
of the employer. That dichotomy makes no sense. Patient
care is the business of a nursing home, and it follows that
attending to the needs of the nursing home patients, who are
the employer's customers, is in the interest of the employer.
See Beverly California, supra, at 1553. We thus see no
basis for the Board's blanket assertion that supervisory au-
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578 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Opinion of the Court
thority exercised in connection with patient care is somehow
not in the interest of the employer.
Our conclusion is supported by the case that gave impetus
to the statutory provision now before us. In Packard
Motor, we considered the phrase "in the interest of an em-
ployer" contained in the definition of "employer" in the origi-
nal 1935 Act. We stated that "[e]very employee, from the
very fact of employment in the master's business, is required
to act in his interest." 330 U. S., at 488. We rejected the
argument of the dissenters who, like the Board in this case,
advanced the proposition that the phrase covered only "those
who acted for management . . . in formulating [and] executing
its labor policies." Id., at 496 (Douglas, J., dissenting); cf.
Reply Brief for Petitioner 4 (filed July 23, 1993) (nurses are
supervisors when, "in addition to performing their profes-
sional duties and responsibilities, they also possess the au-
thority to affect the job status or pay of employees working
under them"). Consistent with the ordinary meaning of the
phrase, the Court in Packard Motor determined that acts
within the scope of employment or on the authorized busi-
ness of the employer are "in the interest of the employer."
330 U. S., at 488Â489. There is no indication that Congress
intended any different meaning when it included the phrase
in the statutory definition of supervisor later in 1947. To be
sure, Congress altered the result of Packard Motor, but it
did not change the meaning of the phrase "in the interest of
the employer" when doing so. And we of course have re-
jected the argument that a statute altering the result
reached by a judicial decision necessarily changes the mean-
ing of the language interpreted in that decision. See Public
Employees Retirement System of Ohio v. Betts, 492 U. S.
158, 168 (1989).
Not only is the Board's test inconsistent with Yeshiva,
Packard Motor, and the ordinary meaning of the phrase "in
the interest of the employer," it also renders portions of the
statutory definition in § 2(11) meaningless. Under § 2(11),
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Opinion of the Court
an employee who in the course of employment uses independ-
ent judgment to engage in 1 of the 12 listed activities, includ-
ing responsible direction of other employees, is a supervisor.
Under the Board's test, however, a nurse who in the course
of employment uses independent judgment to engage in re-
sponsible direction of other employees is not a supervisor.
Only a nurse who in the course of employment uses inde-
pendent judgment to engage in one of the activities related
to another employee's job status or pay can qualify as a su-
pervisor under the Board's test. See Reply Brief for Peti-
tioner 4 (filed July 23, 1993) (nurses are supervisors when
they affect "job status or pay of employees working under
them"). The Board provides no plausible justification, how-
ever, for reading the responsible direction portion of § 2(11)
out of the statute in nurse cases, and we can perceive none.
The Board defends its test by arguing that phrases in
§ 2(11) such as "independent judgment" and "responsibly to
direct" are ambiguous, so the Board needs to be given ample
room to apply them to different categories of employees.
That is no doubt true, but it is irrelevant in this particular
case because interpretation of those phrases is not the under-
pinning of the Board's test. The Board instead has placed
exclusive reliance on the "in the interest of the employer"
language in § 2(11). With respect to that particular phrase,
we find no ambiguity supporting the Board's position. It
should go without saying, moreover, that ambiguity in one
portion of a statute does not give the Board license to distort
other provisions of the statute. Yet that is what the Board
seeks us to sanction in this case.
The interpretation of the "in the interest of the employer"
language mandated by our precedents and by the ordinary
meaning of the phrase does not render the phrase meaning-
less in the statutory definition. The language ensures, for
example, that union stewards who adjust grievances are not
considered supervisory employees and deprived of the Act's
protections. But the language cannot support the Board's
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580 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Opinion of the Court
argument that supervision of the care of patients is not in
the interest of the employer. The welfare of the patient,
after all, is no less the object and concern of the employer
than it is of the nurses. And the statutory dichotomy the
Board has created is no more justified in the health care field
than it would be in any other business where supervisory
duties are a necessary incident to the production of goods or
the provision of services.
B
Because the Board's test is inconsistent with both the stat-
utory language and this Court's precedents, the Board seeks
to shift ground, putting forth a series of nonstatutory argu-
ments. None of them persuades us that we can ignore the
statutory language and our case law.
The Board first contends that we should defer to its test
because, according to the Board, granting organizational
rights to nurses whose supervisory authority concerns pa-
tient care does not threaten the conflicting loyalties that the
supervisor exception was designed to avoid. Brief for Pe-
titioner 25. We rejected the same argument in Yeshiva
where the Board contended that there was "no danger of
divided loyalty and no need for the managerial exclusion" for
the Yeshiva faculty members. 444 U. S., at 684. And we
must reject that reasoning again here. The Act is to be en-
forced according to its own terms, not by creating legal cate-
gories inconsistent with its meaning, as the Board has done
in nurse cases. Whether the Board proceeds through adju-
dication or rulemaking, the statute must control the Board's
decision, not the other way around. See Florida Power &
Light Co. v. Electrical Workers, 417 U. S. 790, 811 (1974); cf.
Packard Motor, supra, at 493 (rejecting resort to policy and
legislative history in interpreting meaning of the phrase "in
the interest of the employer"). Even on the assumption,
moreover, that the statute permits consideration of the po-
tential for divided loyalties so that a unique interpretation
is permitted in the health care field, we do not share the
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Opinion of the Court
Board's confidence that there is no danger of divided loyalty
here. Nursing home owners may want to implement poli-
cies to ensure that patients receive the best possible care
despite potential adverse reaction from employees working
under the nurses' direction. If so, the statute gives nursing
home owners the ability to insist on the undivided loyalty of
its nurses notwithstanding the Board's impression that there
is no danger of divided loyalty.
The Board also argues that "[t]he statutory criterion of
having authority `in the interest of the employer' . . . must
not be read so broadly that it overrides Congress's intention
to accord the protections of the Act to professional employ-
ees." Brief for Petitioner 26; see 29 U. S. C. § 152(12). The
Act does not distinguish professional employees from other
employees for purposes of the definition of supervisor in
§ 2(11). The supervisor exclusion applies to "any individual"
meeting the statutory requirements, not to "any non-
professional employee." In addition, the Board relied on the
same argument in Yeshiva, but to no avail. The Board ar-
gued that "the managerial exclusion cannot be applied in a
straightforward fashion to professional employees because
those employees often appear to be exercising managerial
authority when they are merely performing routine job du-
ties." 444 U. S., at 683Â684. Holding to the contrary, we
said that the Board could not support a statutory distinction
between the university's interest and the managerial interest
being exercised on its behalf. There is no reason for a dif-
ferent result here. To be sure, as recognized in Yeshiva,
there may be "some tension between the Act's exclusion of
[supervisory and] managerial employees and its inclusion of
professionals," but we find no authority for "suggesting that
that tension can be resolved" by distorting the statutory lan-
guage in the manner proposed by the Board. Id., at 686.
Finally, as a reason for us to defer to its conclusion, the
Board cites legislative history of the 1974 amendments to
other sections of the Act. Those amendments did not alter
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582 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Opinion of the Court
the test for supervisory status in the health care field, yet
the Board points to a statement in a Committee Report ex-
pressing apparent approval of the Board's then-current ap-
plication of its supervisory employee test to nurses. S. Rep.
No. 93Â766, p. 6 (1974); see Yeshiva, supra, at 690, n. 30. As
an initial matter, it is far from clear that the Board in fact
had a consistent test for nurses before 1974. Compare Avon
Convalescent Center, Inc., 200 N. L. R. B. 702 (1972), with
Doctors' Hospital of Modesto, Inc., 183 N. L. R. B. 950 (1970).
In any event, the isolated statement in the 1974 Committee
Report does not represent an authoritative interpretation of
the phrase "in the interest of the employer," which was en-
acted by Congress in 1947. "[I]t is the function of the courts
and not the Legislature, much less a Committee of one House
of the Legislature, to say what an enacted statute means."
Pierce v. Underwood, 487 U. S. 552, 566 (1988). Indeed, in
American Hospital Assn. v. NLRB, 499 U. S. 606 (1991), the
petitioner pointed to isolated statements from the same 1974
Senate Report cited here and argued that they revealed Con-
gress' intent with respect to a provision of the original 1935
Act. We dismissed the argument, stating that such state-
ments do not have "the force of law, for the Constitution is
quite explicit about the procedure that Congress must follow
in legislating." Id., at 616; see also Betts, 492 U. S., at 168.
In this case as well, we must reject the Board's reliance on
the 1974 Committee Report. If Congress wishes to enact
the policies of the Board, it can do so without indirection.
See generally Central Bank of Denver, N. A. v. First Inter-
state Bank of Denver, N. A., ante, at 185Â188.
III
An examination of the professional's duties (or in this case
the duties of the four nonprofessional nurses) to determine
whether 1 or more of the 12 listed activities is performed in
a manner that makes the employee a supervisor is, of course,
part of the Board's routine and proper adjudicative function.
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Opinion of the Court
In cases involving nurses, that inquiry no doubt could lead
the Board in some cases to conclude that supervisory status
has not been demonstrated. The Board has not sought to
sustain its decision on that basis here, however. It has cho-
sen instead to rely on an industrywide interpretation of the
phrase "in the interest of the employer" that contravenes
precedents of this Court and has no relation to the ordinary
meaning of that language.
To be sure, in applying § 2(11) in other industries, the
Board on occasion reaches results reflecting a distinction be-
tween authority arising from professional knowledge and au-
thority encompassing front-line management prerogatives.
It is important to emphasize, however, that in almost all of
those cases (unlike in cases involving nurses) the Board's de-
cisions did not result from manipulation of the statutory
phrase "in the interest of the employer," but instead from a
finding that the employee in question had not met the other
requirements for supervisory status under the Act, such as
the requirement that the employee exercise one of the listed
activities in a nonroutine manner. See supra, at 573 (listing
other requirements for supervisory status). That may ex-
plain why the Board did not cite in its submissions to this
Court a single case outside the health care field approving
the interpretation of "in the interest of the employer" the
Board uses in nurse cases. That the Board sometimes finds
a professional employee not to be a supervisor when apply-
ing other elements of the statutory definition of § 2(11) can-
not be shoehorned into the conclusion that the Board can rely
on its strained interpretation of the phrase "in the interest of
the employer" in all nurse cases. If we accepted the Board's
position in this case, moreover, nothing would prevent the
Board from applying this interpretation of "in the interest
of the employer" to all professional employees.
We note further that our decision casts no doubt on Board
or court decisions interpreting parts of § 2(11) other than the
specific phrase "in the interest of the employer." Because
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584 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
the Board's interpretation of "in the interest of the em-
ployer" is for the most part confined to nurse cases, our deci-
sion will have almost no effect outside that context. Any
parade of horribles about the meaning of this decision for
employees in other industries is thus quite misplaced; indeed,
the Board does not make that argument.
In sum, the Board's test for determining the supervisory
status of nurses is inconsistent with the statute and our prec-
edents. The Board did not petition this Court to uphold its
order in this case under any other theory. See Brief for
Respondent 21, n. 25. If the case presented the question
whether these nurses were supervisors under the proper
test, we would have given a lengthy exposition and analysis
of the facts in the record. But as we have indicated, the
Board made and defended its decision by relying on the par-
ticular test it has applied to nurses. Our conclusion that the
Court of Appeals was correct to find the Board's test incon-
sistent with the statute therefore suffices to resolve the case.
The judgment of the Court of Appeals is
Affirmed.
Justice Ginsburg, with whom Justice Blackmun, Jus-
tice Stevens, and Justice Souter join, dissenting.
The National Labor Relations Act, 29 U. S. C. § 151 et seq.,
guarantees organizational, representational, and bargaining
rights to "employees," but expressly excludes "supervisors"
from that protected class. See §§ 157, 152(3). Section 2(11)
of the Act defines the term "supervisor" by, first, enumerat-
ing 12 supervisory actions (including, for example, hiring,
firing, disciplining, assigning, and "responsibly" directing)
and, further, prescribing that "any individual" who has "au-
thority, in the interest of the employer," to perform or "effec-
tively to recommend" any of these actions is a supervisor,
provided that the exercise of such authority requires "inde-
pendent judgment" rather than "merely routine or clerical"
action. § 152(11).
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Ginsburg, J., dissenting
In contrast to its exclusion of supervisors, the Act ex-
pressly includes "professional employees" within its protec-
tions.1 Section 2(12) defines "professional employee" as one
whose work is "predominantly intellectual and varied in
character," involves "the consistent exercise of discretion
and judgment in its performance," produces a result that
"cannot be standardized in relation to a given period of
time," and requires knowledge "in a field of science or learn-
ing customarily acquired by a prolonged course of specialized
intellectual instruction and study in an institution of higher
learning or a hospital." 29 U. S. C. § 152(12)(a).2
The categories "supervisor" and "professional" necessarily
overlap. Individuals within the overlap zone-those who
are both "supervisor" and "professional"-are excluded from
the Act's coverage. For that reason, the scope accorded the
Act's term "supervisor" determines the extent to which pro-
fessionals are covered. If the term "supervisor" is con-
strued broadly, to reach everyone with any authority to use
"independent judgment" to assign and "responsibly . . . di-
rect" the work of other employees, then most professionals
would be supervisors, for most have some authority to assign
and direct others' work. If the term "supervisor" is under-
stood that broadly, however, Congress' inclusion of profes-
sionals within the Act's protections would effectively be
nullified.
The separation of "supervisors," excluded from the Act's
compass, from "professionals," sheltered by the Act, is a task
Congress committed to the National Labor Relations Board
(NLRB or Board) in the first instance. The Board's attempt
1 See § 152(12) (defining "professional employee"); § 159(b) (limiting Na-
tional Labor Relations Board's discretion to place professional and nonpro-
fessional employees in the same bargaining unit).
2 The definition of "professional employee" further includes persons who
have completed the required course of study and are "performing related
work under the supervision of a professional person" in order finally to
qualify as a professional. § 152(12)(b).
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586 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
to carry out that charge is the matter under examination in
this case.
The controversy before the Court involves the employ-
ment status of certain licensed practical nurses at Heartland
Nursing Home in Urbana, Ohio. Unlike registered nurses,
who are professional employees, licensed practical nurses are
considered "technical" employees. The Board, however, ap-
plies the same test of supervisory status to licensed practical
nurses as it does to registered nurses where, as in this case,
the practical nurses have the same duties as registered
nurses. See 306 N. L. R. B. 68, 69, n. 5 (1992) (duties of staff
nurses at Heartland, the evidence showed, "were virtually
the same whether the nurses were [licensed practical nurses]
or [registered nurses]"); Ohio Masonic Home, Inc., 295
N. L. R. B. 390, 394Â395, and n. 1 (1989); cf. NLRB v. Res-
Care, Inc., 705 F. 2d 1461, 1466 (CA7 1983) (licensed practical
nurses "are, if not full-fledged professionals, at least
sub-professionals").
Through case-by-case adjudication, the Board has sought
to distinguish individuals exercising the level of control that
truly places them in the ranks of management, from highly
skilled employees, whether professional or technical, who
perform, incidentally to their skilled work, a limited super-
visory role. I am persuaded that the Board's approach is
rational and consistent with the Act. I would therefore
uphold the administrative determination, affirmed by the
Board, that Heartland's practical nurses are protected
employees.
I
As originally enacted in 1935, the National Labor Rela-
tions Act (Act), 29 U. S. C. § 151 et seq., did not expressly
exclude supervisors from the class of "employees" entitled to
the Act's protections. See §§ 7, 2(3), 49 Stat. 452, 450. The
Board decided in Packard Motor Co., 61 N. L. R. B. 4 (1945),
that in the absence of an express exclusion, supervisors must
be held within the Act's coverage. This Court agreed,
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Ginsburg, J., dissenting
stating that the language of the Act allowed no other inter-
pretation. Packard Motor Car Co. v. NLRB, 330 U. S. 485
(1947).
Congress responded by excluding supervisors in the
Labor-Management Relations Act, 1947.3 The Senate Com-
mittee Report noted that the Senate's definition of "su-
pervisor" 4 had been framed with a view to assuring that
"the employees . . . excluded from the coverage of the act
[would] be truly supervisory." S. Rep. No. 105, 80th Cong.,
1st Sess., 19 (1947) (hereinafter Senate Report), Legislative
History 425; see also H. Conf. Rep. No. 510, 80th Cong., 1st
Sess., 35 (1947), Legislative History 539 ("supervisor"
limited "to individuals generally regarded as foremen and
persons of like or higher rank"). As the Senate Report
explains:
"[T]he committee has not been unmindful of the fact that
certain employees with minor supervisory duties have
problems which may justify their inclusion [within the
protections of the Act]. It has therefore distinguished
between straw bosses, leadmen, set-up men, and other
minor supervisory employees, on the one hand, and the
supervisor vested with such genuine management pre-
rogatives as the right to hire or fire, discipline, or make
3 Section 2(11) of the Act defines a "supervisor" as "any individual hav-
ing authority, in the interest of the employer, to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment." 29 U. S. C. § 152(11).
Section 2(3) provides, in part, that "[t]he term `employee' . . . shall not
include . . . any individual employed as a supervisor." § 152(3).
4 The House and Senate bills defined the term "supervisor" differently;
the Conference Committee adopted the Senate version. See H. Conf.
Rep. No. 510, 80th Cong., 1st Sess., 35 (1947), reprinted in 1 NLRB, Legis-
lative History of the Labor Management Relations Act, 1947, p. 539 (1948)
(hereinafter Legislative History).
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588 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
effective recommendations with respect to such action."
Senate Report, at 4, Legislative History 410.
The purpose of § 2(11)'s definition of "supervisor," then, was
to limit the term's scope to "the front line of management,"
the "foremen" who owed management "undivided loyalty,"
id., at 5, Legislative History 411, as distinguished from work-
ers with "minor supervisory duties."
At the very time that Congress excluded supervisors from
the Act's protection, it added a definition of "professional em-
ployees." See 29 U. S. C. § 152(12).5 The inclusion of that
definition, together with an amendment to § 9(b) of the Act
limiting the placement of professionals and nonprofessionals
in the same bargaining unit, see n. 1, supra, confirm that
Congress did not intend its exclusion of supervisors largely
to eliminate coverage of professional employees.
Nevertheless, because most professionals supervise to
some extent, the Act's inclusion of professionals is in tension
with its exclusion of supervisors. The Act defines a supervi-
sor as "any individual" with authority to use "independent
judgment" "to . . . assign . . . other employees, or responsibly
5 "The term `professional employee' means-
"(a) any employee engaged in work (i) predominantly intellectual and
varied in character as opposed to routine mental, manual, mechanical, or
physical work; (ii) involving the consistent exercise of discretion and judg-
ment in its performance; (iii) of such a character that the output produced
or the result accomplished cannot be standardized in relation to a given
period of time; (iv) requiring knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged course of special-
ized intellectual instruction and study in an institution of higher learning
or a hospital, as distinguished from a general academic education or from
an apprenticeship or from training in the performance of routine mental,
manual, or physical processes; or
"(b) any employee, who (i) has completed the courses of specialized in-
tellectual instruction and study described in clause (iv) of paragraph (a),
and (ii) is performing related work under the supervision of a professional
person to qualify himself to become a professional employee as defined in
paragraph (a)."
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Ginsburg, J., dissenting
to direct them." Professionals, by definition, exercise inde-
pendent judgment, see 29 U. S. C. § 152(12), and most profes-
sionals have authority to assign tasks to other employees
and "responsibly to direct" their work. See NLRB v. Res-
Care, Inc., 705 F. 2d 1461, 1465 (CA7 1983) (Posner, J.)
("[M]ost professionals have some supervisory responsibilities
in the sense of directing another's work-the lawyer his sec-
retary, the teacher his teacher's aide, the doctor his nurses,
the registered nurse her nurse's aide, and so on."). If pos-
session of such authority and the exercise of independent
judgment were sufficient to classify an individual as a statu-
tory "supervisor," then few professionals would receive the
Act's protections, contrary to Congress' express intention
categorically to include "professional employees."
II
A
The NLRB has recognized and endeavored to cope with
the tension between the Act's exclusion of supervisors and
its inclusion of professional employees. See, e. g., Northcrest
Nursing Home, 313 N. L. R. B. 491 (1993). To harmonize
the two prescriptions, the Board has properly focused on the
policies that motivated Congress to exclude supervisors. Ac-
counting for the exclusion of supervisors, the Act's drafters
emphasized that employers must have the "undivided loy-
alty" of those persons, "traditionally regarded as part of
management," on whom they have bestowed "such genuine
management prerogatives as the right to hire or fire, disci-
pline, or make effective recommendations with respect to
such action." See Senate Report, at 3Â4, Legislative His-
tory 409Â410 (quoted in Northcrest Nursing Home, 313
N. L. R. B., at 491. Accordingly, the NLRB classifies as su-
pervisors individuals who use independent judgment in the
exercise of managerial or disciplinary authority over other
employees. Id., at 493Â494. But because professional em-
ployees often are not in management's "front line," the "undi-
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590 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
vided loyalty" concern is somewhat less urgent for this class
of workers. The Board has therefore determined that the
exercise of professional judgment "to assign and direct other
employees in the interest of providing high quality and effi-
cient service" does not, by itself, "confer supervisory status."
Id., at 494.
The NLRB has essayed this exposition of its inquiry:
"In determining the existence of supervisory status,
the Board must first determine whether the individual
possesses any of the 12 indicia of supervisory authority
and, if so, whether the exercise of that authority entails
`independent judgment' or is `merely routine.' If the
individual independently exercises supervisory author-
ity, the Board must then determine if that authority
is exercised `in the interest of the employer.' " Id., at
493.
As applied to the health-care field, the Board has reasoned
that to fit the formulation "in the interest of the employer,"
the nurse's superintendence of others must reflect key mana-
gerial authority, and not simply control attributable to the
nurse's "professional or technical status," direction incidental
to "sound patient care." Id., at 493, 496. Cf. Children's
Habilitation Center, Inc. v. NLRB, 887 F. 2d 130, 134 (CA7
1989) (Posner, J.) (authority does not fit within the "interest
of the employer" category if it is "exercised in accordance
with professional rather than business norms," i. e., in ac-
cordance with "professional standards rather than . . . the
company's profit-maximizing objectives").
B
The NLRB's "patient care analysis" is not a rudderless
rule for nurses, but an application of the approach the
Board has pursued in other contexts. The Board has
employed the distinction between authority arising from
professional knowledge, on one hand, and authority en-
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Cite as: 511 U. S. 571 (1994) 591
Ginsburg, J., dissenting
compassing front-line management prerogatives, on the
other, to resolve cases concerning the supervisory status
of, for example, doctors,6 faculty members,7 pharmacists,8
librarians,9 social workers,10 lawyers,11 television station
6 See The Door, 297 N. L. R. B. 601, 602, n. 7 (1990) ("routine direction
of employees based on a higher level of skill or experience is not evidence
of supervisory status").
7 See Detroit College of Business, 296 N. L. R. B. 318, 320 (1989) (profes-
sional employees " `[f]requently require the ancillary services of nonpro-
fessional employees in order to carry out their professional, not supervi-
sory, responsibilities,' " but "it was not Congress' intention to exclude
them from the Act `by the rote application of the statute without any
reference to its purpose or the individual's place on the labor-management
spectrum' "), quoting New York Univ., 221 N. L. R. B. 1148, 1156 (1975).
8 See Sav-On Drugs, Inc., 243 N. L. R. B. 859, 862 (1979) ("pharmacy
managers do exercise discretion and judgment" in assigning and directing
clerks, but "such exercise . . . falls clearly within the ambit of their profes-
sional responsibilities, and does not constitute the exercise of supervisory
authority in the interest of the Employer").
9 See Marymount College of Virginia, 280 N. L. R. B. 486, 489 (1986)
(rejecting classification of catalog librarian as a statutory supervisor, al-
though librarian's authority over technician's work included "encouraging
productivity, reviewing work for typographical errors, and providing an-
swers to the technician's questions based on the catalog librarian's profes-
sional knowledge").
10 See Youth Guidance Center, 263 N. L. R. B. 1330, 1335, and n. 23 (1982)
("senior supervising social workers" and "supervising social workers" not
statutory supervisors; "[t]he Board has carefully and consistently avoided
applying the statutory definition of `supervisor' to professionals who give
direction to other employees in the exercise of professional judgment
which is incidental to the professional's treatment of patients and thus is
not the exercise of supervisory authority in the interest of the employer").
11 See Neighborhood Legal Services, Inc., 236 N. L. R. B. 1269, 1273
(1978): "[T]o the extent that the [attorneys in question] train, assign, or
direct work of legal assistants and paralegals for whom they are profes-
sionally responsible, we do not find the exercise of such authority to confer
supervisory status within the meaning of Section 2(11) of the Act, but
rather to be an incident of their professional responsibilities as attorneys
and thereby as officers of the court." The Board continued: "[W]e are
careful to avoid applying the definition of `supervisor' to professionals who
direct other employees in the exercise of their professional judgment,
511us2$54P 11-05-97 14:07:43 PAGES OPINPGT
592 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
directors,12 and, as this Court has noted, architects and engi-
neers. See NLRB v. Yeshiva Univ., 444 U. S. 672, 690, n. 30
(1980) (citing cases). Indicating approval of the NLRB's
general approach to the Act's coverage of professionals, the
Court stated in Yeshiva:
"The Board has recognized that employees whose deci-
sionmaking is limited to the routine discharge of profes-
sional duties in projects to which they have been as-
signed cannot be excluded from coverage even if union
membership arguably may involve some divided loyalty.
Only if an employee's activities fall outside the scope of
the duties routinely performed by similarly situated pro-
fessionals will he be found aligned with management.
We think these decisions accurately capture the intent
of Congress . . . ." Id., at 690 (footnote omitted).
Notably, in determining whether, in a concrete case,
nurses are supervisors within the meaning of the Act, the
Board has drawn particularly upon its decisions in "leadper-
son" controversies. "Leadpersons" include skilled employ-
ees who do not qualify as statutory "professionals," but, like
professional employees, have some authority to assign or di-
rect other workers. In leadperson cases, as in cases involv-
ing professionals, the NLRB has distinguished between
authority that derives from superior skill or experience,
and authority that "flows from management and tends to
identify or associate a worker with management." South-
which direction is incidental to the practice of their profession, and thus
is not the exercise of supervisory authority in the interest of the Em-
ployer." Id., at 1273, n. 9.
12 See Golden-West Broadcasters-KTLA, 215 N. L. R. B. 760, 762, n. 4
(1974): "[A]n employee with special expertise or training who directs or
instructs another in the proper performance of his work for which the
former is professionally responsible is not thereby rendered a supervi-
sor. . . . This is so even when the more senior or more expert employee exer-
cises some independent discretion where, as here, such discretion is based
upon special competence or upon specific articulated employer policies."
511us2$54P 11-05-97 14:07:43 PAGES OPINPGT
Cite as: 511 U. S. 571 (1994) 593
Ginsburg, J., dissenting
ern Bleacher & Print Works, Inc., 115 N. L. R. B. 787, 791
(1956), enforced, 257 F. 2d 235, 239 (CA4 1958); cf. Northcrest
Nursing Home, 313 N. L. R. B., at 494Â495 (drawing the anal-
ogy between leadpersons and charge nurses in hospitals and
nursing homes). Differentiating the role of front-line man-
agers from that of leadperson, the Board has placed some
nurses, because of the level of their authority, in the supervi-
sor category, while ranking others, as in this case, in a pro-
fessional (or technical), but not supervisor, class. See cases
cited in id., at 498, n. 36.
III
Following the pattern revealed in NLRB decisions, the
Administrative Law Judge (ALJ), affirmed by the Board, de-
termined that the four licensed practical nurses in this case
were not supervisors. The ALJ closely examined the orga-
nization and operation of nursing care at Heartland and
found the nurses' direction of aides "closely akin to the kind
of directing done by leadmen or straw bosses, persons . . .
Congress plainly considered to be `employees.' " 306
N. L. R. B., at 70. Backing up this finding, the ALJ pointed
out that, although the nurses "g[a]ve orders (of certain kinds)
to the aides, and the aides follow[ed] those orders," id., at 72,
the nurses "spen[t] only a small fraction of their time exercis-
ing that authority," id., at 69. Essentially, the nurses la-
bored "to ensure that the needs of the residents [were] met,"
and to that end, they "check[ed] for changes in the health of
the residents, administer[ed] medicine, . . . receive[d] status
reports from the nurses they relieve[d], and g[a]ve [such] re-
ports to aides coming on duty and to the nurses' reliefs,"
pinch-hit for aides in "bathing, feeding or dressing resi-
dents," and "handle[d] incoming telephone calls from physi-
cians and from relatives of residents who want[ed] informa-
tion about a resident's condition." Ibid.
The ALJ noted, too, that "when setting up the aide-
resident assignments," the nurses "followed old patterns";
indeed, "the nurses routinely let the aides decide among
511us2$54P 11-05-97 14:07:43 PAGES OPINPGT
594 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
themselves which aide was to cover which residents." Id.,
at 70. The administrator and the director of nursing were
"always on call" and nurses in fact called them at their homes
"when non-routine matters ar[o]se." Id., at 72.
Throughout the hearing, the ALJ reported, he gained "the
impression that Heartland's administrator believed that the
nurses' views about anything other than hands-on care of
the residents were not worth considering." Ibid. "[T]he
actions of Heartland's administrator," the ALJ concluded,
repeatedly and unmistakably demonstrated that "to [Heart-
land's] management, Heartland's nurses were just hired
hands." Ibid. I see no tenable basis for rejecting the
ALJ's ultimate ruling that the nurses' jobs did not entail
genuine, front-line supervisory status of the kind that would
exclude them from the Act's protection.
IV
A
The phrase ultimately limiting the § 2(11) classification
"supervisor" is, as the Court recognizes, "in the interest of
the employer." To give that phrase meaning as a discrete
and potent limitation, the Board has construed it, in diverse
contexts, to convey more than the obligation all employees
have to further the employer's business interests, indeed
more than the authority to assign and direct other employees
pursuant to relevant professional standards. See, e. g.,
Northcrest Nursing Home, 313 N. L. R. B. 491 (1993)
(nurses); Youth Guidance Center, 263 N. L. R. B. 1330, 1335,
and n. 23 (1982) (social workers); Sav-On Drugs, Inc., 243
N. L. R. B. 859, 862 (1979) (pharmacists); Neighborhood Legal
Services, Inc., 236 N. L. R. B. 1269, 1273, and n. 9 (1978)
(attorneys).13 It is a defining task of management to formu-
13 The Board, as the decisions cited in text demonstrate, takes no unique
approach in cases involving nurses. See also cases cited, supra, at 591Â
592, nn. 6Â7, 9, 12. Nor, contrary to the Court's report, see ante, at 574,
did counsel for the NLRB admit to deviant interpretation of the phrase,
511us2$54P 11-05-97 14:07:44 PAGES OPINPGT
Cite as: 511 U. S. 571 (1994) 595
Ginsburg, J., dissenting
late and execute labor policies for the shop; correspondingly,
the persons charged with superintending management policy
regarding labor are the "supervisors" who, in the Board's
view, act "in the interest of the employer."
Maintaining professional standards of course serves the
interest of an enterprise, and the NLRB is hardly blind to
that obvious point. See Northcrest Nursing Home, 313
N. L. R. B., at 494 (interest of employer and employees not
likely to diverge on charge nurse decisions concerning meth-
ods of attending to patients' needs). But "the interest of
the employer" may well tug against that of employees, on
matters such as "hiring, firing, discharging, and fixing
pay"; "in the interest of the employer," persons with author-
ity regarding "things of that sort" are properly ranked
"supervisor." 14
"interest of the employer," in nurses' cases. When asked whether "[i]t is
uniquely nurses" who do not act "in the interest of the employer" when
attending to "the needs of the customer," counsel replied, "No, it is not
uniquely nurses." Tr. of Oral Arg. 52. While counsel continued, when
pressed, to say that "[t]he Board has not applied a theory that's phrased
in the same terms to other categories of professionals," ibid., counsel ap-
pears to have been referring to the precisely particularized, "patient care"
version of the inquiry. Counsel added: "What the Board has done is draw
an analogy between . . . what nurses do and what other minor supervisory
employees do. . . . [T]he Board's rule in this case is fully consistent with
the traditional rule that it has applied." Id., at 53.
14 See 92 Cong. Rec. 5930 (1946), containing the statement of Repre-
sentative Case on a forerunner of present § 2(11), included as part of the
Case bill, passed by Congress, but vetoed by President Truman in 1946.
Representative Case stated of the bill's provision, nearly identical to the
present § 2(11): " `In the interest of the employer'-that is the key phrase
to keep in mind. . . . All that the section on supervisory employees does is
to say that if `in the interest of the employer,' [a] person has a primary
responsibility in hiring, firing, discharging, and fixing pay, and things of
that sort, then at the bargaining table he shall not sit on the side of the
employee, but shall sit on the side of the employer. . . . No man can serve
two masters. If you are negotiating a contract, a lawyer does not repre-
sent both clients. That is all that is involved here."
511us2$54P 11-05-97 14:07:44 PAGES OPINPGT
596 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
The Court does not deny that the phrase "in the interest
of the employer" was intended to limit, not to expand, the
category "supervisor." 15 Yet the reading the Court gives to
the phrase allows it to provide only one example of workers
who would not fit the description: "The language ensures . . .
that union stewards who adjust grievances are not consid-
ered supervisory employees and deprived of the Act's protec-
tions." Ante, at 579. Section 2(11)'s expression, "in the in-
terest of the employer," however, modifies all 12 of the listed
supervisory activities, not just the adjustment of grievances.
Tellingly, the single example the Court gives, "union stew-
ards who adjust grievances," rests on the very distinction
the Board has endeavored to apply in all quarters of the
workplace: one between "management" interests peculiar to
the employer, and the sometimes conflicting interests of
employees.16
15 The Court does maintain, however, that Congress meant to embrace
our statement in Packard Motor Car Co. v. NLRB, 330 U. S. 485 (1947),
that "[e]very employee, from the very fact of employment in the master's
business, is required to act in his interest." Id., at 488; see ante, at 578.
But Congress' purpose, in enacting § 2(11), was to overturn the Court's
holding in Packard Motor Car. Thus it is more likely that Congress was
taken by Justice Douglas' dissenting view that "acting in the interest of
the employer" fits employees who act for management "not only in formu-
lating but also in executing its labor policies." 330 U. S., at 496. More-
over, Congress had included the phrase, "in the interest of the employer,"
the year before Packard Motor Car, in a predecessor bill to the Labor-
Management Relations Act that defined the term "supervisor" almost
identically. See n. 14, supra. Finally, the Court acknowledged in Pack-
ard Motor Car that the phrase "interest of the employer" may also be
read more narrowly, in contradistinction to employees' interests in improv-
ing their compensation and working conditions. 330 U. S., at 489, 490.
Packard Motor Car, then, does not support the conclusion that the words,
"interest of the employer," have a plain meaning inconsistent with the
interpretation the Board has given them in supervisor cases.
16 The Court suggests that the Board has "rea[d] the responsible direc-
tion portion of § 2(11) out of the statute in nurse cases." Ante, at 579
(referring to the words "responsibly to direct" in § 2(11)'s list of supervi-
sory activities). The author of the amendment that inserted those words
511us2$54P 11-05-97 14:07:44 PAGES OPINPGT
Cite as: 511 U. S. 571 (1994) 597
Ginsburg, J., dissenting
Congress adopted the supervisor exclusion to bind to man-
agement those persons "vested with . . . genuine manage-
ment prerogatives," Senate Report, at 4, Legislative History
410, i. e., those with the authority and duty to act specifically
"in the interest of the employer" on matters as to which
management and labor interests may divide. The Board has
been faithful to the task Congress gave it, I believe, in distin-
guishing the employer's hallmark managerial interest-its
interest regarding labor-management relations-from the
general interest of the enterprise, shared by its professional
and technical employees, in providing high-quality service.
B
In rejecting the Board's approach, the Court relies heavily
on NLRB v. Yeshiva Univ., 444 U. S. 672 (1980). The heavy
weight placed on Yeshiva is puzzling, for the Court in that
case noted with approval the Board's decisions differentiat-
ing professional team leaders (or "project captains") from
"supervisors." Such leaders are "employees," not "supervi-
sors," the Board held, and the Court agreed, "despite [their]
substantial planning responsibility and authority to direct
and evaluate team members." Id., at 690, n. 30. "In the
health-care context," specifically, the Court in Yeshiva ob-
served, "the Board asks in each case whether the decisions
alleged to be managerial or supervisory are `incidental to' or
`in addition to' the treatment of patients." That approach,
the Court said in Yeshiva, "accurately capture[d] the intent
of Congress." Id., at 690.
explained, however, that persons having authority "responsibly to direct"
other employees are persons with "essential managerial duties" who rank
"above the grade of `straw bosses, lead men, set-up men, and other minor
supervisory employees,' as enumerated in the [Senate] report." 93 Cong.
Rec. 4678 (1947), Legislative History 1303 (remarks of Sen. Flanders). As
explained above, the Board has used this same analogy to straw bosses
and leadpersons to determine whether particular nurses are supervisors.
See supra, at 592Â593.
511us2$54P 11-05-97 14:07:44 PAGES OPINPGT
598 NLRB v. HEALTH CARE & RETIREMENT CORP.
OF AMERICA
Ginsburg, J., dissenting
The Court today also expresses doubt whether "the stat-
ute permits consideration of the potential for divided loyal-
ties." Ante, at 580 (implying that consideration of this po-
tential would entail a "unique interpretation [of the statute]
. . . in the health care field"). But again, Yeshiva points the
other way. The Court's opinion in Yeshiva acknowledged
that the Act's exclusion of supervisors "grow[s] out of the . . .
concern . . . [t]hat an employer is entitled to the undivided
loyalty of its representatives." 444 U. S., at 682. The
Court decided that the Yeshiva University faculty members
were not entitled to the Act's protection, precisely because
their role as "representative" of the employer presented a
grave danger of divided loyalties. The Yeshiva faculty, the
Court stated, was pivotal in defining and implementing the
employer's managerial interests; its "authority in academic
matters [wa]s absolute," and it "determine[d] . . . the product
to be produced, the terms upon which it will be offered, and
the customers who will be served." Id., at 686. No plausi-
ble equation can be made between the self-governing Ye-
shiva faculty, on one hand, and on the other, the licensed
practical nurses involved in this case, with their limited au-
thority to assign and direct the work of nurses' aides, pursu-
ant to professional standards.
V
The Court's opinion has implications far beyond the nurses
involved in this case. If any person who may use independ-
ent judgment to assign tasks to others or direct their work
is a supervisor, then few professionals employed by organiza-
tions subject to the Act will receive its protections.17 The
17 As the Board repeatedly warned in its presentations to this Court: "If
all it took to be a statutory supervisor were a showing that an employee
gives discretionary direction to an aide, even though done pursuant to the
customary norms of the profession, the coverage of professionals would be
a virtual nullity." Brief for Petitioner 27; see also id., at 12, Reply Brief
for Petitioner 7Â8 (filed Jan. 5, 1994).
511us2$54P 11-05-97 14:07:44 PAGES OPINPGT
Cite as: 511 U. S. 571 (1994) 599
Ginsburg, J., dissenting
Board's endeavor to reconcile the inclusion of professionals
with the exclusion of supervisors, in my view, is not just
"rational and consistent with the Act," NLRB v. Curtin
Matheson Scientific, Inc., 494 U. S. 775, 796 (1990); it is re-
quired by the Act. I would therefore reverse the contrary
judgment of the Court of Appeals.
511us2$55Z 11-03-97 22:18:59 PAGES OPINPGT
600 OCTOBER TERM, 1993
Syllabus
STAPLES v. UNITED STATES
certiorari to the united states court of appeals for
the tenth circuit
No. 92Â1441. Argued November 30, 1993-Decided May 23, 1994
The National Firearms Act criminalizes possession of an unregistered
"firearm," 26 U. S. C. § 5861(d), including a "machinegun," § 5845(a)(6),
which is defined as a weapon that automatically fires more than one
shot with a single pull of the trigger, § 5845(b). Petitioner Staples was
charged with possessing an unregistered machinegun in violation of
§ 5861(d) after officers searching his home seized a semiautomatic rifle-
i. e., a weapon that normally fires only one shot with each trigger pull-
that had apparently been modified for fully automatic fire. At trial,
Staples testified that the rifle had never fired automatically while he
possessed it and that he had been ignorant of any automatic firing capa-
bility. He was convicted after the District Court rejected his proposed
jury instruction under which, to establish a § 5861(d) violation, the Gov-
ernment would have been required to prove beyond a reasonable doubt
that Staples knew that the gun would fire fully automatically. The
Court of Appeals affirmed, concluding that the Government need not
prove a defendant's knowledge of a weapon's physical properties to ob-
tain a conviction under § 5861(d).
Held: To obtain a § 5861(d) conviction, the Government should have been
required to prove beyond a reasonable doubt that Staples knew that his
rifle had the characteristics that brought it within the statutory defini-
tion of a machinegun. Pp. 604Â619.
(a) The common-law rule requiring mens rea as an element of a crime
informs interpretation of § 5861(d) in this case. Because some indica-
tion of congressional intent, express or implied, is required to dispense
with mens rea, § 5861(d)'s silence on the element of knowledge required
for a conviction does not suggest that Congress intended to dispense
with a conventional mens rea requirement, which would require that
the defendant know the facts making his conduct illegal. Pp. 604Â606.
(b) The Court rejects the Government's argument that the Act fits
within the Court's line of precedent concerning "public welfare" or "reg-
ulatory" offenses and thus that the presumption favoring mens rea does
not apply in this case. In cases concerning public welfare offenses, the
Court has inferred from silence a congressional intent to dispense with
conventional mens rea requirements in statutes that regulate poten-
tially harmful or injurious items. In such cases, the Court has reasoned
511us2$55Z 11-03-97 22:18:59 PAGES OPINPGT
Cite as: 511 U. S. 600 (1994) 601
Syllabus
that as long as a defendant knows that he is dealing with a dangerous
device of a character that places him in responsible relation to a public
danger, he should be alerted to the probability of strict regulation, and
is placed on notice that he must determine at his peril whether his con-
duct comes within the statute's inhibition. See, e. g., United States v.
Balint, 258 U. S. 250; United States v. Freed, 401 U. S. 601. Guns, how-
ever, do not fall within the category of dangerous devices as it has been
developed in public welfare offense cases. In contrast to the selling of
dangerous drugs at issue in Balint or the possession of hand grenades
considered in Freed, private ownership of guns in this country has en-
joyed a long tradition of being entirely lawful conduct. Thus, the de-
structive potential of guns in general cannot be said to put gun owners
sufficiently on notice of the likelihood of regulation to justify interpret-
ing § 5861(d) as dispensing with proof of knowledge of the characteristics
that make a weapon a "firearm" under the statute. The Government's
interpretation potentially would impose criminal sanctions on a class of
persons whose mental state-ignorance of the characteristics of weap-
ons in their possession-makes their actions entirely innocent. Had
Congress intended to make outlaws of such citizens, it would have spo-
ken more clearly to that effect. Pp. 606Â616.
(c) The potentially harsh penalty attached to violation of § 5861(d)-
up to 10 years' imprisonment-confirms the foregoing reading of the
Act. Where, as here, dispensing with mens rea would require the de-
fendant to have knowledge only of traditionally lawful conduct, a severe
penalty is a further factor tending to suggest that Congress did not
intend to eliminate a mens rea requirement. Pp. 616Â619.
(d) The holding here is a narrow one that depends on a commonsense
evaluation of the nature of the particular device Congress has subjected
to regulation, the expectations that individuals may legitimately have
in dealing with that device, and the penalty attached to a violation.
It does not set forth comprehensive criteria for distinguishing be-
tween crimes that require a mental element and crimes that do not.
Pp. 619Â620.
971 F. 2d 608, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Kennedy, and Souter, JJ., joined. Ginsburg, J., filed
an opinion concurring in the judgment, in which O'Connor, J., joined, post,
p. 620. Stevens, J., filed a dissenting opinion, in which Blackmun, J.,
joined, post, p. 624.
Jennifer L. De Angelis argued the cause for petitioner.
With her on the brief was Clark O. Brewster.
511us2$55Z 11-03-97 22:18:59 PAGES OPINPGT
602 STAPLES v. UNITED STATES
Opinion of the Court
James A. Feldman argued the cause for the United States.
With him on the brief were Solicitor General Days, Acting
Assistant Attorney General Keeney, Deputy Solicitor Gen-
eral Bryson, and John F. De Pue.
Justice Thomas delivered the opinion of the Court.
The National Firearms Act makes it unlawful for any per-
son to possess a machinegun that is not properly registered
with the Federal Government. Petitioner contends that, to
convict him under the Act, the Government should have been
required to prove beyond a reasonable doubt that he knew
the weapon he possessed had the characteristics that
brought it within the statutory definition of a machinegun.
We agree and accordingly reverse the judgment of the Court
of Appeals.
I
The National Firearms Act (Act), 26 U. S. C. §§ 5801Â5872,
imposes strict registration requirements on statutorily de-
fined "firearms." The Act includes within the term "fire-
arm" a machinegun, § 5845(a)(6), and further defines a ma-
chinegun as "any weapon which shoots, . . . or can be readily
restored to shoot, automatically more than one shot, with-
out manual reloading, by a single function of the trigger,"
§ 5845(b). Thus, any fully automatic weapon is a "firearm"
within the meaning of the Act.1 Under the Act, all firearms
must be registered in the National Firearms Registration
and Transfer Record maintained by the Secretary of the
Treasury. § 5841. Section 5861(d) makes it a crime, punish-
1 As used here, the terms "automatic" and "fully automatic" refer to a
weapon that fires repeatedly with a single pull of the trigger. That is,
once its trigger is depressed, the weapon will automatically continue to
fire until its trigger is released or the ammunition is exhausted. Such
weapons are "machineguns" within the meaning of the Act. We use the
term "semiautomatic" to designate a weapon that fires only one shot with
each pull of the trigger, and which requires no manual manipulation by the
operator to place another round in the chamber after each round is fired.
511us2$55N 11-03-97 22:18:59 PAGES OPINPGT
Cite as: 511 U. S. 600 (1994) 603
Opinion of the Court
able by up to 10 years in prison, see § 5871, for any person
to possess a firearm that is not properly registered.
Upon executing a search warrant at petitioner's home,
local police and agents of the Bureau of Alcohol, Tobacco and
Firearms (BATF) recovered, among other things, an ARÂ15
rifle. The ARÂ15 is the civilian version of the military's
MÂ16 rifle, and is, unless modified, a semiautomatic weapon.
The MÂ16, in contrast, is a selective fire rifle that allows the
operator, by rotating a selector switch, to choose semiauto-
matic or automatic fire. Many MÂ16 parts are interchange-
able with those in the ARÂ15 and can be used to convert the
ARÂ15 into an automatic weapon. No doubt to inhibit such
conversions, the ARÂ15 is manufactured with a metal stop
on its receiver that will prevent an MÂ16 selector switch,
if installed, from rotating to the fully automatic position.
The metal stop on petitioner's rifle, however, had been filed
away, and the rifle had been assembled with an MÂ16 se-
lector switch and several other MÂ16 internal parts, includ-
ing a hammer, disconnector, and trigger. Suspecting that
the ARÂ15 had been modified to be capable of fully auto-
matic fire, BATF agents seized the weapon. Petitioner sub-
sequently was indicted for unlawful possession of an unreg-
istered machinegun in violation of § 5861(d).
At trial, BATF agents testified that when the ARÂ15 was
tested, it fired more than one shot with a single pull of the
trigger. It was undisputed that the weapon was not regis-
tered as required by § 5861(d). Petitioner testified that the
rifle had never fired automatically when it was in his posses-
sion. He insisted that the ARÂ15 had operated only semiau-
tomatically, and even then imperfectly, often requiring man-
ual ejection of the spent casing and chambering of the next
round. According to petitioner, his alleged ignorance of any
automatic firing capability should have shielded him from
criminal liability for his failure to register the weapon. He
requested the District Court to instruct the jury that, to
establish a violation of § 5861(d), the Government must prove
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604 STAPLES v. UNITED STATES
Opinion of the Court
beyond a reasonable doubt that the defendant "knew that
the gun would fire fully automatically." 1 App. to Brief for
Appellant in No. 91Â5033 (CA10), p. 42.
The District Court rejected petitioner's proposed instruc-
tion and instead charged the jury as follows:
"The Government need not prove the defendant knows
he's dealing with a weapon possessing every last charac-
teristic [which subjects it] 2 to the regulation. It would
be enough to prove he knows that he is dealing with a
dangerous device of a type as would alert one to the
likelihood of regulation." Tr. 465.
Petitioner was convicted and sentenced to five years' proba-
tion and a $5,000 fine.
The Court of Appeals affirmed. Relying on its decision in
United States v. Mittleider, 835 F. 2d 769 (CA10 1987), cert.
denied, 485 U. S. 980 (1988), the court concluded that the
Government need not prove a defendant's knowledge of a
weapon's physical properties to obtain a conviction under
§ 5861(d). 971 F. 2d 608, 612Â613 (CA10 1992). We granted
certiorari, 508 U. S. 939 (1993), to resolve a conflict in the
Courts of Appeals concerning the mens rea required under
§ 5861(d).
II
A
Whether or not § 5861(d) requires proof that a defendant
knew of the characteristics of his weapon that made it a
"firearm" under the Act is a question of statutory construc-
tion. As we observed in Liparota v. United States, 471 U. S.
419 (1985), "[t]he definition of the elements of a criminal of-
fense is entrusted to the legislature, particularly in the case
of federal crimes, which are solely creatures of statute."
Id., at 424 (citing United States v. Hudson, 7 Cranch 32
2 In what the parties regard as a mistranscription, the transcript con-
tains the word "suggested" instead of "which subjects it."
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Opinion of the Court
(1812)). Thus, we have long recognized that determining
the mental state required for commission of a federal crime
requires "construction of the statute and . . . inference of
the intent of Congress." United States v. Balint, 258 U. S.
250, 253 (1922). See also Liparota, supra, at 423.
The language of the statute, the starting place in our in-
quiry, see Connecticut Nat. Bank v. Germain, 503 U. S. 249,
253Â254 (1992), provides little explicit guidance in this case.
Section 5861(d) is silent concerning the mens rea required
for a violation. It states simply that "[i]t shall be unlawful
for any person . . . to receive or possess a firearm which is
not registered to him in the National Firearms Registration
and Transfer Record." 26 U. S. C. § 5861(d). Nevertheless,
silence on this point by itself does not necessarily suggest
that Congress intended to dispense with a conventional mens
rea element, which would require that the defendant know
the facts that make his conduct illegal. See Balint, supra,
at 251 (stating that traditionally, "scienter" was a necessary
element in every crime). See also n. 3, infra. On the con-
trary, we must construe the statute in light of the back-
ground rules of the common law, see United States v. United
States Gypsum Co., 438 U. S. 422, 436Â437 (1978), in which
the requirement of some mens rea for a crime is firmly em-
bedded. As we have observed, "[t]he existence of a mens
rea is the rule of, rather than the exception to, the principles
of Anglo-American criminal jurisprudence." Id., at 436 (in-
ternal quotation marks omitted). See also Morissette v.
United States, 342 U. S. 246, 250 (1952) ("The contention that
an injury can amount to a crime only when inflicted by inten-
tion is no provincial or transient notion. It is as universal
and persistent in mature systems of law as belief in freedom
of the human will and a consequent ability and duty of the
normal individual to choose between good and evil").
There can be no doubt that this established concept has
influenced our interpretation of criminal statutes. Indeed,
we have noted that the common-law rule requiring mens rea
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606 STAPLES v. UNITED STATES
Opinion of the Court
has been "followed in regard to statutory crimes even where
the statutory definition did not in terms include it." Balint,
supra, at 251Â252. Relying on the strength of the tradi-
tional rule, we have stated that offenses that require no
mens rea generally are disfavored, Liparota, supra, at 426,
and have suggested that some indication of congressional in-
tent, express or implied, is required to dispense with mens
rea as an element of a crime. Cf. United States Gypsum,
supra, at 438; Morissette, supra, at 263.
According to the Government, however, the nature and
purpose of the Act suggest that the presumption favoring
mens rea does not apply to this case. The Government ar-
gues that Congress intended the Act to regulate and restrict
the circulation of dangerous weapons. Consequently, in the
Government's view, this case fits in a line of precedent con-
cerning what we have termed "public welfare" or "regula-
tory" offenses, in which we have understood Congress to im-
pose a form of strict criminal liability through statutes that
do not require the defendant to know the facts that make
his conduct illegal. In construing such statutes, we have
inferred from silence that Congress did not intend to require
proof of mens rea to establish an offense.
For example, in Balint, we concluded that the Narcotic
Act of 1914, which was intended in part to minimize the
spread of addictive drugs by criminalizing undocumented
sales of certain narcotics, required proof only that the de-
fendant knew that he was selling drugs, not that he knew
the specific items he had sold were "narcotics" within the
ambit of the statute. See Balint, supra, at 254. Cf. United
States v. Dotterweich, 320 U. S. 277, 281 (1943) (stating in
dicta that a statute criminalizing the shipment of adulterated
or misbranded drugs did not require knowledge that the
items were misbranded or adulterated). As we explained
in Dotterweich, Balint dealt with "a now familiar type of
legislation whereby penalties serve as effective means of
regulation. Such legislation dispenses with the conven-
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Opinion of the Court
tional requirement for criminal conduct-awareness of some
wrongdoing." 320 U. S., at 280Â281. See also Morissette,
supra, at 252Â256.
Such public welfare offenses have been created by Con-
gress, and recognized by this Court, in "limited circum-
stances." United States Gypsum, supra, at 437. Typically,
our cases recognizing such offenses involve statutes that
regulate potentially harmful or injurious items. Cf. United
States v. International Minerals & Chemical Corp., 402
U. S. 558, 564Â565 (1971) (characterizing Balint and similar
cases as involving statutes regulating "dangerous or delete-
rious devices or products or obnoxious waste materials").
In such situations, we have reasoned that as long as a defend-
ant knows that he is dealing with a dangerous device of a
character that places him "in responsible relation to a public
danger," Dotterweich, supra, at 281, he should be alerted to
the probability of strict regulation, and we have assumed
that in such cases Congress intended to place the burden on
the defendant to "ascertain at his peril whether [his conduct]
comes within the inhibition of the statute." Balint, supra,
at 254. Thus, we essentially have relied on the nature of the
statute and the particular character of the items regulated
to determine whether congressional silence concerning the
mental element of the offense should be interpreted as dis-
pensing with conventional mens rea requirements. See
generally Morissette, supra, at 252Â260.3
3 By interpreting such public welfare offenses to require at least that
the defendant know that he is dealing with some dangerous or deleterious
substance, we have avoided construing criminal statutes to impose a rigor-
ous form of strict liability. See, e. g., United States v. International Min-
erals & Chemical Corp., 402 U. S. 558, 563Â564 (1971) (suggesting that if
a person shipping acid mistakenly thought that he was shipping distilled
water, he would not violate a statute criminalizing undocumented shipping
of acids). True strict liability might suggest that the defendant need not
know even that he was dealing with a dangerous item. Nevertheless, we
have referred to public welfare offenses as "dispensing with" or "eliminat-
ing" a mens rea requirement or "mental element," see, e. g., Morissette,
511US2 Unit: $U55 [11-04-99 07:43:28] PAGES PGT: OPIN
608 STAPLES v. UNITED STATES
Opinion of the Court
B
The Government argues that § 5861(d) defines precisely
the sort of regulatory offense described in Balint. In this
view, all guns, whether or not they are statutory "firearms,"
are dangerous devices that put gun owners on notice that
they must determine at their hazard whether their weapons
come within the scope of the Act. On this understanding,
the District Court's instruction in this case was correct, be-
cause a conviction can rest simply on proof that a defendant
knew he possessed a "firearm" in the ordinary sense of the
term.
The Government seeks support for its position from our
decision in United States v. Freed, 401 U. S. 601 (1971), which
involved a prosecution for possession of unregistered gre-
nades under § 5861(d).4 The defendant knew that the items
in his possession were grenades, and we concluded that
§ 5861(d) did not require the Government to prove the de-
fendant also knew that the grenades were unregistered.
Id., at 609. To be sure, in deciding that mens rea was not
required with respect to that element of the offense, we sug-
342 U. S., at 250, 263; United States v. Dotterweich, 320 U. S. 277, 281
(1943), and have described them as strict liability crimes, United States v.
United States Gypsum Co., 438 U. S. 422, 437 (1978). While use of the
term "strict liability" is really a misnomer, we have interpreted statutes
defining public welfare offenses to eliminate the requirement of mens rea;
that is, the requirement of a "guilty mind" with respect to an element of
a crime. Under such statutes we have not required that the defendant
know the facts that make his conduct fit the definition of the offense. Gen-
erally speaking, such knowledge is necessary to establish mens rea, as is
reflected in the maxim ignorantia facti excusat. See generally J. Haw-
ley & M. McGregor, Criminal Law 26Â30 (1899); R. Perkins, Criminal Law
785Â786 (2d ed. 1969); G. Williams, Criminal Law: The General Part 113Â
174 (1953). Cf. Queen v. Tolson, 23 Q. B. 168, 187 (1889) (Stephen, J.)
("[I]t may, I think, be maintained that in every case knowledge of fact
[when not appearing in the statute] is to some extent an element of crimi-
nality as much as competent age and sanity").
4 A grenade is a "firearm" under the Act. 26 U. S. C. §§ 5845(a)(8),
5845(f)(1)(B).
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Opinion of the Court
gested that the Act "is a regulatory measure in the in-
terest of the public safety, which may well be premised on
the theory that one would hardly be surprised to learn that
possession of hand grenades is not an innocent act." Ibid.
Grenades, we explained, "are highly dangerous offensive
weapons, no less dangerous than the narcotics involved in
United States v. Balint." Ibid. But that reasoning pro-
vides little support for dispensing with mens rea in this case.
As the Government concedes, Freed did not address the
issue presented here. In Freed, we decided only that
§ 5861(d) does not require proof of knowledge that a fire-
arm is unregistered. The question presented by a defendant
who possesses a weapon that is a "firearm" for purposes of
the Act, but who knows only that he has a "firearm" in the
general sense of the term, was not raised or considered.
And our determination that a defendant need not know that
his weapon is unregistered suggests no conclusion concern-
ing whether § 5861(d) requires the defendant to know of the
features that make his weapon a statutory "firearm"; differ-
ent elements of the same offense can require different mental
states. See Liparota, 471 U. S., at 423, n. 5; United States
v. Bailey, 444 U. S. 394, 405Â406 (1980). See also W. La-
Fave & A. Scott, Handbook on Criminal Law 194Â195 (1972).
Moreover, our analysis in Freed likening the Act to the pub-
lic welfare statute in Balint rested entirely on the assump-
tion that the defendant knew that he was dealing with hand
grenades-that is, that he knew he possessed a particularly
dangerous type of weapon (one within the statutory defini-
tion of a "firearm"), possession of which was not entirely
"innocent" in and of itself. 401 U. S., at 609. The predi-
cate for that analysis is eliminated when, as in this case, the
very question to be decided is whether the defendant must
know of the particular characteristics that make his weapon
a statutory firearm.
Notwithstanding these distinctions, the Government urges
that Freed's logic applies because guns, no less than gre-
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610 STAPLES v. UNITED STATES
Opinion of the Court
nades, are highly dangerous devices that should alert their
owners to the probability of regulation. But the gap be-
tween Freed and this case is too wide to bridge. In glossing
over the distinction between grenades and guns, the Govern-
ment ignores the particular care we have taken to avoid con-
struing a statute to dispense with mens rea where doing
so would "criminalize a broad range of apparently innocent
conduct." Liparota, 471 U. S., at 426. In Liparota, we con-
sidered a statute that made unlawful the unauthorized ac-
quisition or possession of food stamps. We determined that
the statute required proof that the defendant knew his
possession of food stamps was unauthorized, largely because
dispensing with such a mens rea requirement would have
resulted in reading the statute to outlaw a number of appar-
ently innocent acts. Ibid. Our conclusion that the statute
should not be treated as defining a public welfare offense
rested on the commonsense distinction that a "food stamp
can hardly be compared to a hand grenade." Id., at 433.
Neither, in our view, can all guns be compared to hand
grenades. Although the contrast is certainly not as stark as
that presented in Liparota, the fact remains that there is a
long tradition of widespread lawful gun ownership by private
individuals in this country. Such a tradition did not apply
to the possession of hand grenades in Freed or to the selling
of dangerous drugs that we considered in Balint. See also
International Minerals, 402 U. S., at 563Â565; Balint, 258
U. S., at 254. In fact, in Freed we construed § 5861(d) under
the assumption that "one would hardly be surprised to learn
that possession of hand grenades is not an innocent act."
Freed, supra, at 609. Here, the Government essentially
suggests that we should interpret the section under the alto-
gether different assumption that "one would hardly be sur-
prised to learn that owning a gun is not an innocent act."
That proposition is simply not supported by common experi-
ence. Guns in general are not "deleterious devices or prod-
ucts or obnoxious waste materials," International Minerals,
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Opinion of the Court
supra, at 565, that put their owners on notice that they stand
"in responsible relation to a public danger," Dotterweich, 320
U. S., at 281.
The Government protests that guns, unlike food stamps,
but like grenades and narcotics, are potentially harmful de-
vices.5 Under this view, it seems that Liparota's concern
for criminalizing ostensibly innocuous conduct is inapplicable
whenever an item is sufficiently dangerous-that is, danger-
ousness alone should alert an individual to probable regula-
tion and justify treating a statute that regulates the danger-
ous device as dispensing with mens rea. But that an item
is "dangerous," in some general sense, does not necessarily
suggest, as the Government seems to assume, that it is not
also entirely innocent. Even dangerous items can, in some
cases, be so commonplace and generally available that we
would not consider them to alert individuals to the likelihood
of strict regulation. As suggested above, despite their po-
tential for harm, guns generally can be owned in perfect in-
nocence. Of course, we might surely classify certain catego-
ries of guns-no doubt including the machineguns, sawed-off
shotguns, and artillery pieces that Congress has subjected to
5 The dissent's assertions to the contrary notwithstanding, the Govern-
ment's position, "[a]ccurately identified," post, at 632, is precisely that "guns
in general" are dangerous items. The Government, like the dissent, cites
Sipes v. United States, 321 F. 2d 174, 179 (CA8), cert. denied, 375 U. S. 913
(1963), for the proposition that a defendant's knowledge that the item he
possessed "was a gun" is sufficient for a conviction under § 5861(d). Brief
for United States 21. Indeed, the Government argues that "guns" should
be placed in the same category as the misbranded drugs in Dotterweich
and the narcotics in Balint because " `one would hardly be surprised to
learn' (Freed, 401 U. S. at 609) that there are laws that affect one's rights
of gun ownership." Brief for United States 22. The dissent relies upon
the Government's repeated contention that the statute requires knowledge
that "the item at issue was highly dangerous and of a type likely to be
subject to regulation." Id., at 9. But that assertion merely patterns the
general language we have used to describe the mens rea requirement in
public welfare offenses and amounts to no more than an assertion that the
statute should be treated as defining a public welfare offense.
511us2$55N 11-03-97 22:19:00 PAGES OPINPGT
612 STAPLES v. UNITED STATES
Opinion of the Court
regulation-as items the ownership of which would have the
same quasi-suspect character we attributed to owning hand
grenades in Freed. But precisely because guns falling out-
side those categories traditionally have been widely accepted
as lawful possessions, their destructive potential, while per-
haps even greater than that of some items we would classify
along with narcotics and hand grenades, cannot be said to
put gun owners sufficiently on notice of the likelihood of reg-
ulation to justify interpreting § 5861(d) as not requiring proof
of knowledge of a weapon's characteristics.6
6 The dissent asserts that the question is not whether all guns are dele-
terious devices, but whether a gun "such as the one possessed by peti-
tioner," post, at 632 (which the dissent characterizes as a "semiautomatic
weapon that [is] readily convertible into a machinegun," post, at 624, 633,
640), is such a device. If the dissent intends to suggest that the category
of readily convertible semiautomatics provides the benchmark for defining
the knowledge requirement for § 5861(d), it is difficult to see how it derives
that class of weapons as a standard. As explained above, see n. 5, supra,
the Government's argument has nothing to do with this ad hoc category
of weapons. And the statute certainly does not suggest that any signifi-
cance should attach to readily convertible semiautomatics, for that class
bears no relation to the definitions in the Act. Indeed, in the absence of
any definition, it is not at all clear what the contours of this category
would be. The parties assume that virtually all semiautomatics may be
converted into automatics, and limiting the class to those "readily" con-
vertible provides no real guidance concerning the required mens rea. In
short, every owner of a semiautomatic rifle or handgun would potentially
meet such a mens rea test.
But the dissent apparently does not conceive of the mens rea require-
ment in terms of specific categories of weapons at all, and rather views it
as a more fluid concept that does not require delineation of any concrete
elements of knowledge that will apply consistently from case to case. The
dissent sees no need to define a class of items the knowing possession of
which satisfies the mens rea element of the offense, for in the dissent's
view the exact content of the knowledge requirement can be left to the
jury in each case. As long as the jury concludes that the item in a given
case is "sufficiently dangerous to alert [the defendant] to the likelihood of
regulation," post, at 637, the knowledge requirement is satisfied. See also
post, at 624, 639, 640. But the mens rea requirement under a criminal
statute is a question of law, to be determined by the court. Our decisions
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Opinion of the Court
On a slightly different tack, the Government suggests that
guns are subject to an array of regulations at the federal,
state, and local levels that put gun owners on notice that
they must determine the characteristics of their weapons
and comply with all legal requirements.7 But regulation in
itself is not sufficient to place gun ownership in the category
of the sale of narcotics in Balint. The food stamps at issue
in Liparota were subject to comprehensive regulations, yet
we did not understand the statute there to dispense with a
mens rea requirement. Moreover, despite the overlay of
legal restrictions on gun ownership, we question whether
regulations on guns are sufficiently intrusive that they im-
pinge upon the common experience that owning a gun is
usually licit and blameless conduct. Roughly 50 percent of
suggesting that public welfare offenses require that the defendant know
that he stands in "responsible relation to a public danger," Dotterweich,
320 U. S., at 281, in no way suggest that what constitutes a public danger
is a jury question. It is for courts, through interpretation of the statute,
to define the mens rea required for a conviction. That task cannot be
reduced to setting a general "standard," post, at 637, that leaves it to
the jury to determine, based presumably on the jurors' personal opinions,
whether the items involved in a particular prosecution are sufficiently dan-
gerous to place a person on notice of regulation.
Moreover, as our discussion above should make clear, to determine as
a threshold matter whether a particular statute defines a public welfare
offense, a court must have in view some category of dangerous and delete-
rious devices that will be assumed to alert an individual that he stands
in "responsible relation to a public danger." Dotterweich, supra, at 281.
The truncated mens rea requirement we have described applies precisely
because the court has determined that the statute regulates in a field
where knowing possession of some general class of items should alert indi-
viduals to probable regulation. Under the dissent's approach, however, it
seems that every regulatory statute potentially could be treated as a pub-
lic welfare offense as long as the jury-not the court-ultimately deter-
mines that the specific items involved in a prosecution were sufficiently
dangerous.
7 See, e. g., 18 U. S. C. §§ 921Â928 (1988 ed. and Supp. IV) (requiring li-
censing of manufacturers, importers, and dealers of guns and regulating
the sale, possession, and interstate transportation of certain guns).
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614 STAPLES v. UNITED STATES
Opinion of the Court
American homes contain at least one firearm of some sort,8
and in the vast majority of States, buying a shotgun or rifle
is a simple transaction that would not alert a person to regu-
lation any more than would buying a car.9
If we were to accept as a general rule the Government's
suggestion that dangerous and regulated items place their
owners under an obligation to inquire at their peril into com-
pliance with regulations, we would undoubtedly reach some
untoward results. Automobiles, for example, might also be
termed "dangerous" devices and are highly regulated at both
the state and federal levels. Congress might see fit to crimi-
nalize the violation of certain regulations concerning auto-
mobiles, and thus might make it a crime to operate a vehicle
without a properly functioning emission control system.
But we probably would hesitate to conclude on the basis of
silence that Congress intended a prison term to apply to a
car owner whose vehicle's emissions levels, wholly unbe-
knownst to him, began to exceed legal limits between regu-
lar inspection dates.
Here, there can be little doubt that, as in Liparota, the
Government's construction of the statute potentially would
impose criminal sanctions on a class of persons whose mental
state-ignorance of the characteristics of weapons in their
8 See U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics 209 (1992) (Table 2.58).
9 For example, as of 1990, 39 States allowed adult residents, who are not
felons or mentally infirm, to purchase a rifle or shotgun simply with proof
of identification (and in some cases a simultaneous application for a per-
mit). See U. S. Dept. of Justice, Bureau of Justice Statistics, Identifying
Persons, Other Than Felons, Ineligible to Purchase Firearms 114, Exh. B.4
(1990); U. S. Congress, Office of Technology Assessment, Automated Rec-
ord Checks of Firearm Purchasers 27 (July 1991). See also M. Cooper,
Reassessing the Nation's Gun Laws, Editorial Research Reports 158, 160
(Jan.ÂMar. 1991) (table) (suggesting the total is 41 States); Dept. of Treas-
ury, Bureau of Alcohol, Tobacco and Firearms, State Laws and Published
Ordinances-Firearms (19th ed. 1989).
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Opinion of the Court
possession-makes their actions entirely innocent.10 The
Government does not dispute the contention that virtu-
ally any semiautomatic weapon may be converted, either by
internal modification or, in some cases, simply by wear and
tear, into a machinegun within the meaning of the Act.
Cf. United States v. Anderson, 885 F. 2d 1248, 1251, 1253Â
1254 (CA5 1989) (en banc). Such a gun may give no exter-
nally visible indication that it is fully automatic. See United
States v. Herbert, 698 F. 2d 981, 986 (CA9), cert. denied, 464
U. S. 821 (1983). But in the Government's view, any person
who has purchased what he believes to be a semiautomatic
rifle or handgun, or who simply has inherited a gun from a
relative and left it untouched in an attic or basement, can
be subject to imprisonment, despite absolute ignorance of
the gun's firing capabilities, if the gun turns out to be an
automatic.
We concur in the Fifth Circuit's conclusion on this point:
"It is unthinkable to us that Congress intended to subject
such law-abiding, well-intentioned citizens to a possible ten-
year term of imprisonment if . . . what they genuinely and
reasonably believed was a conventional semi-automatic
[weapon] turns out to have worn down into or been secretly
modified to be a fully automatic weapon." Anderson, supra,
at 1254. As we noted in Morissette, the "purpose and obvi-
ous effect of doing away with the requirement of a guilty
intent is to ease the prosecution's path to conviction." 342
U. S., at 263.11 We are reluctant to impute that purpose to
10 We, of course, express no view concerning the inferences a jury may
have drawn regarding petitioner's knowledge from the evidence in this
case.
11 The Government contends that Congress intended precisely such an
aid to obtaining convictions, because requiring proof of knowledge would
place too heavy a burden on the Government and obstruct the proper
functioning of § 5861(d). Cf. United States v. Balint, 258 U. S. 250, 254
(1922) (difficulty of proving knowledge suggests Congress did not intend
to require mens rea). But knowledge can be inferred from circumstantial
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616 STAPLES v. UNITED STATES
Opinion of the Court
Congress where, as here, it would mean easing the path to
convicting persons whose conduct would not even alert them
to the probability of strict regulation in the form of a statute
such as § 5861(d).
C
The potentially harsh penalty attached to violation of
§ 5861(d)-up to 10 years' imprisonment-confirms our read-
ing of the Act. Historically, the penalty imposed under a
statute has been a significant consideration in determining
whether the statute should be construed as dispensing with
mens rea. Certainly, the cases that first defined the concept
of the public welfare offense almost uniformly involved stat-
utes that provided for only light penalties such as fines or
short jail sentences, not imprisonment in the state peniten-
tiary. See, e. g., Commonwealth v. Raymond, 97 Mass. 567
(1867) (fine of up to $200 or six months in jail, or both); Com-
monwealth v. Farren, 91 Mass. 489 (1864) (fine); People v.
Snowburger, 113 Mich. 86, 71 N. W. 497 (1897) (fine of up to
$500 or incarceration in county jail).12
As commentators have pointed out, the small penalties
attached to such offenses logically complemented the absence
of a mens rea requirement: In a system that generally re-
evidence, including any external indications signaling the nature of the
weapon. And firing a fully automatic weapon would make the regulated
characteristics of the weapon immediately apparent to its owner. In
short, we are confident that when the defendant knows of the characteris-
tics of his weapon that bring it within the scope of the Act, the Govern-
ment will not face great difficulty in proving that knowledge. Of course,
if Congress thinks it necessary to reduce the Government's burden at trial
to ensure proper enforcement of the Act, it remains free to amend § 5861(d)
by explicitly eliminating a mens rea requirement.
12 Leading English cases developing a parallel theory of regulatory of-
fenses similarly involved violations punishable only by fine or short-term
incarceration. See, e. g., Queen v. Woodrow, 15 M. & W. 404, 153 Eng.
Rep. 907 (Ex. 1846) (fine of £200 for adulterated tobacco); Hobbs v. Win-
chester Corp., [1910] 2 K. B. 471 (maximum penalty of three months' im-
prisonment for sale of unwholesome meat).
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Opinion of the Court
quires a "vicious will" to establish a crime, 4 W. Blackstone,
Commentaries *21, imposing severe punishments for of-
fenses that require no mens rea would seem incongruous.
See Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 70
(1933). Indeed, some courts justified the absence of mens
rea in part on the basis that the offenses did not bear the
same punishments as "infamous crimes," Tenement House
Dept. v. McDevitt, 215 N. Y. 160, 168, 109 N. E. 88, 90 (1915)
(Cardozo, J.), and questioned whether imprisonment was
compatible with the reduced culpability required for such
regulatory offenses. See, e. g., People ex rel. Price v. Shef-
field Farms-Slawson-Decker Co., 225 N. Y. 25, 32Â33, 121
N. E. 474, 477 (1918) (Cardozo, J.); id., at 35, 121 N. E., at
478 (Crane, J., concurring) (arguing that imprisonment for a
crime that requires no mens rea would stretch the law re-
garding acts mala prohibita beyond its limitations).13 Simi-
larly, commentators collecting the early cases have argued
that offenses punishable by imprisonment cannot be under-
stood to be public welfare offenses, but must require mens
rea. See R. Perkins, Criminal Law 793Â798 (2d ed. 1969)
(suggesting that the penalty should be the starting point in
determining whether a statute describes a public welfare of-
fense); Sayre, supra, at 72 ("Crimes punishable with prison
sentences . . . ordinarily require proof of a guilty intent").14
In rehearsing the characteristics of the public welfare of-
fense, we, too, have included in our consideration the punish-
ments imposed and have noted that "penalties commonly are
relatively small, and conviction does no grave damage to an
13 Cf. Queen v. Tolson, 23 Q. B., at 177 (Wills, J.) (In determining whether
a criminal statute dispenses with mens rea, "the nature and extent of the
penalty attached to the offence may reasonably be considered. There is
nothing that need shock any mind in the payment of a small pecuniary
penalty by a person who has unwittingly done something detrimental to
the public interest").
14 But see, e. g., State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923) (applying
the public welfare offense rationale to a felony).
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618 STAPLES v. UNITED STATES
Opinion of the Court
offender's reputation." Morissette, 342 U. S., at 256.15 We
have even recognized that it was "[u]nder such considera-
tions" that courts have construed statutes to dispense with
mens rea. Ibid.
Our characterization of the public welfare offense in
Morissette hardly seems apt, however, for a crime that is a
felony, as is violation of § 5861(d).16 After all, "felony" is, as
we noted in distinguishing certain common-law crimes from
public welfare offenses, " `as bad a word as you can give to
man or thing.' " Id., at 260 (quoting 2 F. Pollock & F. Mait-
land, History of English Law 465 (2d ed. 1899)). Close ad-
herence to the early cases described above might suggest
that punishing a violation as a felony is simply incompatible
with the theory of the public welfare offense. In this view,
absent a clear statement from Congress that mens rea is
not required, we should not apply the public welfare offense
rationale to interpret any statute defining a felony offense
as dispensing with mens rea. But see United States v.
Balint, 258 U. S. 250 (1922).
We need not adopt such a definitive rule of construction
to decide this case, however. Instead, we note only that
where, as here, dispensing with mens rea would require the
defendant to have knowledge only of traditionally lawful con-
duct, a severe penalty is a further factor tending to suggest
that Congress did not intend to eliminate a mens rea require-
15 See also United States Gypsum, 438 U. S., at 442, n. 18 (noting that
an individual violation of the Sherman Antitrust Act is a felony punishable
by three years in prison or a fine not exceeding $100,000 and stating that
"[t]he severity of these sanctions provides further support for our conclu-
sion that the [Act] should not be construed as creating strict-liability
crimes"). Cf. Holdridge v. United States, 282 F. 2d 302, 310 (CA8 1960)
(Blackmun, J.) ("[W]here a federal criminal statute omits mention of intent
and . . . where the penalty is relatively small, where conviction does not
gravely besmirch, [and] where the statutory crime is not one taken over
from the common law, . . . the statute can be construed as one not requiring
criminal intent").
16 Title 18 U. S. C. § 3559 makes any crime punishable by more than one
year in prison a felony.
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Cite as: 511 U. S. 600 (1994) 619
Opinion of the Court
ment. In such a case, the usual presumption that a defend-
ant must know the facts that make his conduct illegal
should apply.
III
In short, we conclude that the background rule of the
common law favoring mens rea should govern interpretation
of § 5861(d) in this case. Silence does not suggest that Con-
gress dispensed with mens rea for the element of § 5861(d)
at issue here. Thus, to obtain a conviction, the Government
should have been required to prove that petitioner knew of
the features of his ARÂ15 that brought it within the scope
of the Act.17
We emphasize that our holding is a narrow one. As in
our prior cases, our reasoning depends upon a commonsense
evaluation of the nature of the particular device or substance
Congress has subjected to regulation and the expectations
that individuals may legitimately have in dealing with the
regulated items. In addition, we think that the penalty
attached to § 5861(d) suggests that Congress did not intend
to eliminate a mens rea requirement for violation of the sec-
tion. As we noted in Morissette: "Neither this Court nor,
17 In reaching our conclusion, we find it unnecessary to rely on the rule
of lenity, under which an ambiguous criminal statute is to be construed in
favor of the accused. That maxim of construction "is reserved for cases
where, `[a]fter "seiz[ing] every thing from which aid can be derived," ' the
Court is `left with an ambiguous statute.' " Smith v. United States, 508
U. S. 223, 239 (1993) (quoting United States v. Bass, 404 U. S. 336, 347
(1971), in turn quoting United States v. Fisher, 2 Cranch 358, 386 (1805)).
See also United States v. R. L. C., 503 U. S. 291, 311 (1992) (Thomas, J.,
concurring in part and concurring in judgment); Chapman v. United
States, 500 U. S. 453, 463 (1991) (rule of lenity inapplicable unless there is
a " `grievous ambiguity or uncertainty' " in the statute). Here, the back-
ground rule of the common law favoring mens rea and the substantial
body of precedent we have developed construing statutes that do not spec-
ify a mental element provide considerable interpretive tools from which
we can "seize aid," and they do not leave us with the ultimate impression
that § 5861(d) is "grievous[ly]" ambiguous. Certainly, we have not con-
cluded in the past that statutes silent with respect to mens rea are ambig-
uous. See, e. g., United States v. Balint, 258 U. S. 250 (1922).
511us2$55N 11-03-97 22:19:00 PAGES OPINPGT
620 STAPLES v. UNITED STATES
Ginsburg, J., concurring in judgment
so far as we are aware, any other has undertaken to delin-
eate a precise line or set forth comprehensive criteria for
distinguishing between crimes that require a mental element
and crimes that do not." 342 U. S., at 260. We attempt no
definition here, either. We note only that our holding de-
pends critically on our view that if Congress had intended
to make outlaws of gun owners who were wholly ignorant
of the offending characteristics of their weapons, and to sub-
ject them to lengthy prison terms, it would have spoken
more clearly to that effect. Cf. United States v. Harris, 959
F. 2d 246, 261 (CADC), cert. denied, 506 U. S. 932 (1992).
For the foregoing reasons, the judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
So ordered.
Justice Ginsburg, with whom Justice O'Connor joins,
concurring in the judgment.
The statute petitioner Harold E. Staples is charged with
violating, 26 U. S. C. § 5861(d), makes it a crime for any per-
son to "receive or possess a firearm which is not registered
to him." Although the word "knowingly" does not appear
in the statute's text, courts generally assume that Congress,
absent a contrary indication, means to retain a mens rea re-
quirement. Ante, at 606; see Liparota v. United States, 471
U. S. 419, 426 (1985); United States v. United States Gypsum
Co., 438 U. S. 422, 437Â438 (1978).1 Thus, our holding in
United States v. Freed, 401 U. S. 601 (1971), that § 5861(d)
does not require proof of knowledge that the firearm is un-
registered, rested on the premise that the defendant indeed
1 Contrary to the dissent's suggestion, we have not confined the pre-
sumption of mens rea to statutes codifying traditional common-law of-
fenses, but have also applied the presumption to offenses that are "entirely
a creature of statute," post, at 625, such as those at issue in Liparota,
Gypsum, and, most recently, Posters `N' Things, Ltd. v. United States,
ante, at 522Â523.
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Cite as: 511 U. S. 600 (1994) 621
Ginsburg, J., concurring in judgment
knew the items he possessed were hand grenades. Id., at
607; id., at 612 (Brennan, J., concurring in judgment) ("The
Government and the Court agree that the prosecutor must
prove knowing possession of the items and also knowledge
that the items possessed were hand grenades.").
Conviction under § 5861(d), the Government accordingly
concedes, requires proof that Staples "knowingly" possessed
the machinegun. Brief for United States 23. The question
before us is not whether knowledge of possession is required,
but what level of knowledge suffices: (1) knowledge simply
of possession of the object; (2) knowledge, in addition, that
the object is a dangerous weapon; (3) knowledge, beyond
dangerousness, of the characteristics that render the ob-
ject subject to regulation, for example, awareness that the
weapon is a machinegun.2
Recognizing that the first reading effectively dispenses
with mens rea, the Government adopts the second, contend-
ing that it avoids criminalizing "apparently innocent con-
duct," Liparota, supra, at 426, because under the second
reading, "a defendant who possessed what he thought was a
toy or a violin case, but which in fact was a machinegun,
could not be convicted." Brief for United States 23. The
Government, however, does not take adequate account of the
"widespread lawful gun ownership" Congress and the States
have allowed to persist in this country. See United States
v. Harris, 959 F. 2d 246, 261 (CADC) (per curiam), cert.
denied, 506 U. S. 932 (1992). Given the notable lack of com-
prehensive regulation, "mere unregistered possession of
certain types of [regulated weapons]-often [difficult to dis-
2 Some Courts of Appeals have adopted a variant of the third reading,
holding that the Government must show that the defendant knew the gun
was a machinegun, but allowing inference of the requisite knowledge
where a visual inspection of the gun would reveal that it has been con-
verted into an automatic weapon. See United States v. O'Mara, 963 F. 2d
1288, 1291 (CA9 1992); United States v. Anderson, 885 F. 2d 1248, 1251
(CA5 1989) (en banc).
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622 STAPLES v. UNITED STATES
Ginsburg, J., concurring in judgment
tinguish] from other, [nonregulated] types," has been held
inadequate to establish the requisite knowledge. See 959
F. 2d, at 261.
The Nation's legislators chose to place under a registration
requirement only a very limited class of firearms, those they
considered especially dangerous. The generally "danger-
ous" character of all guns, the Court therefore observes,
ante, at 611Â612, did not suffice to give individuals in Staples'
situation cause to inquire about the need for registration.
Cf. United States v. Balint, 258 U. S. 250 (1922) (requiring
reporting of sale of strictly regulated narcotics, opium and
cocaine). Only the third reading, then, suits the purpose of
the mens rea requirement-to shield people against punish-
ment for apparently innocent activity.3
The indictment in Staples' case charges that he "know-
ingly received and possessed firearms." 1 App. to Brief for
Appellant in No. 91Â5033 (CA10), p. 1.4 "Firearms" has a
3 The mens rea presumption requires knowledge only of the facts that
make the defendant's conduct illegal, lest it conflict with the related pre-
sumption, "deeply rooted in the American legal system," that, ordinarily,
"ignorance of the law or a mistake of law is no defense to criminal prosecu-
tion." Cheek v. United States, 498 U. S. 192, 199 (1991). Cf. United
States v. Freed, 401 U. S. 601, 612 (1971) (Brennan, J., concurring in judg-
ment) ("If the ancient maxim that `ignorance of the law is no excuse' has
any residual validity, it indicates that the ordinary intent requirement-
mens rea-of the criminal law does not require knowledge that an act is
illegal, wrong, or blameworthy."). The maxim explains why some "inno-
cent" actors-for example, a defendant who knows he possesses a weapon
with all of the characteristics that subject it to registration, but was un-
aware of the registration requirement, or thought the gun was regis-
tered-may be convicted under § 5861(d), see post, at 638. Knowledge of
whether the gun was registered is so closely related to knowledge of the
registration requirement that requiring the Government to prove the for-
mer would in effect require it to prove knowledge of the law. Cf. Freed,
supra, at 612Â614 (Brennan, J., concurring in judgment).
4 The indictment charged Staples with possession of two unregistered
machineguns, but the jury found him guilty of knowingly possessing only
one of them. Tr. 477.
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Cite as: 511 U. S. 600 (1994) 623
Ginsburg, J., concurring in judgment
circumscribed statutory definition. See 26 U. S. C. § 5845(a).
The "firear[m]" the Government contends Staples possessed
in violation of § 5861(d) is a machinegun. See § 5845(a)(6).
The indictment thus effectively charged that Staples know-
ingly possessed a machinegun. "Knowingly possessed" log-
ically means "possessed and knew that he possessed." The
Government can reconcile the jury instruction 5 with the in-
dictment only on the implausible assumption that the term
"firear[m]" has two different meanings when used once in the
same charge-simply "gun" when referring to what peti-
tioner knew, and "machinegun" when referring to what he
possessed. See Cunningham, Levi, Green, & Kaplan, Plain
Meaning and Hard Cases, 103 Yale L. J. 1561, 1576Â1577
(1994); cf. Ratzlaf v. United States, 510 U. S. 135, 143 (1994)
(construing statutory term to bear same meaning "each time
it is called into play").
For these reasons, I conclude that conviction under § 5861(d)
requires proof that the defendant knew he possessed not
simply a gun, but a machinegun. The indictment in this
case, but not the jury instruction, properly described this
knowledge requirement. I therefore concur in the Court's
judgment.
5 The trial court instructed the jury:
"[A] person is knowingly in possession of a thing if his possession occurred
voluntarily and intentionally and not because of mistake or accident or
other innocent reason. The purpose of adding the word `knowingly' is to
insure that no one can be convicted of possession of a firearm he did not
intend to possess. The Government need not prove the defendant knows
he's dealing with a weapon possessing every last characteristic [which sub-
jects it] to the regulation. It would be enough to prove he knows that he
is dealing with a dangerous device of a type as would alert one to the
likelihood of regulation. If he has such knowledge and if the particular
item is, in fact, regulated, then that person acts at his peril. Mere posses-
sion of an unregistered firearm is a violation of the law of the United
States, and it is not necessary for the Government to prove that the de-
fendant knew that the weapon in his possession was a firearm within the
meaning of the statute, only that he knowingly possessed the firearm."
Id., at 465.
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624 STAPLES v. UNITED STATES
Stevens, J., dissenting
Justice Stevens, with whom Justice Blackmun joins,
dissenting.
To avoid a slight possibility of injustice to unsophisticated
owners of machineguns and sawed-off shotguns, the Court
has substituted its views of sound policy for the judgment
Congress made when it enacted the National Firearms Act
(or Act). Because the Court's addition to the text of 26
U. S. C. § 5861(d) is foreclosed by both the statute and our
precedent, I respectfully dissent.
The Court is preoccupied with guns that "generally can
be owned in perfect innocence." Ante, at 611. This case,
however, involves a semiautomatic weapon that was readily
convertible into a machinegun-a weapon that the jury found
to be " `a dangerous device of a type as would alert one to
the likelihood of regulation.' " Ante, at 604. These are not
guns "of some sort" that can be found in almost "50 percent
of American homes." Ante, at 613Â614.1 They are particu-
larly dangerous-indeed, a substantial percentage of the un-
registered machineguns now in circulation are converted
semiautomatic weapons.2
The question presented is whether the National Firearms
Act imposed on the Government the burden of proving be-
yond a reasonable doubt not only that the defendant knew
he possessed a dangerous device sufficient to alert him to
1 Indeed, only about 15 percent of all the guns in the United States
are semiautomatic. See National Rifle Association, Fact Sheet, Semi-
Automatic Firearms 1 (Feb. 1, 1994). Although it is not known how many
of those weapons are readily convertible into machineguns, it is obviously
a lesser share of the total.
2 See U. S. Dept. of Justice, Attorney General's Task Force on Violent
Crime: Final Report 29, 32 (Aug. 17, 1981) (stating that over an 18-month
period over 20 percent of the machineguns seized or purchased by the
Bureau of Alcohol, Tobacco and Firearms had been converted from semi-
automatic weapons by "simple tool work or the addition of readily avail-
able parts") (citing U. S. Dept. of Treasury, Bureau of Alcohol, Tobacco
and Firearms, Firearms Case Summary (Washington: U. S. Govt. Printing
Office 1981)).
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Cite as: 511 U. S. 600 (1994) 625
Stevens, J., dissenting
regulation, but also that he knew it had all the characteris-
tics of a "firearm" as defined in the statute. Three unambig-
uous guideposts direct us to the correct answer to that ques-
tion: the text and structure of the Act, our cases construing
both this Act and similar regulatory legislation, and the Act's
history and interpretation.
I
Contrary to the assertion by the Court, the text of the
statute does provide "explicit guidance in this case." Cf.
ante, at 605. The relevant section of the Act makes it "un-
lawful for any person . . . to receive or possess a firearm
which is not registered to him in the National Firearms
Registration and Transfer Record." 26 U. S. C. § 5861(d).
Significantly, the section contains no knowledge requirement,
nor does it describe a common-law crime.
The common law generally did not condemn acts as crimi-
nal unless the actor had "an evil purpose or mental culpabil-
ity," Morissette v. United States, 342 U. S. 246, 252 (1952),
and was aware of all the facts that made the conduct unlaw-
ful, United States v. Balint, 258 U. S. 250, 251Â252 (1922).
In interpreting statutes that codified traditional common-law
offenses, courts usually followed this rule, even when the
text of the statute contained no such requirement. Ibid.
Because the offense involved in this case is entirely a crea-
ture of statute, however, "the background rules of the com-
mon law," cf. ante, at 605, do not require a particular con-
struction, and critically different rules of construction apply.
See Morissette v. United States, 342 U. S., at 252Â260.
In Morissette, Justice Jackson outlined one such interpre-
tive rule:
"Congressional silence as to mental elements in an Act
merely adopting into federal statutory law a concept of
crime already . . . well defined in common law and statu-
tory interpretation by the states may warrant quite con-
trary inferences than the same silence in creating an of-
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626 STAPLES v. UNITED STATES
Stevens, J., dissenting
fense new to general law, for whose definition the courts
have no guidance except the Act." Id., at 262.
Although the lack of an express knowledge requirement in
§ 5861(d) is not dispositive, see United States v. United States
Gypsu